Of tribal land and access to land in Botswana

SHARE   |   Sunday, 10 August 2014   |   By Dr Boga Manatsha
Minister Of Land and housing, Lebonaamang Mokalake Minister Of Land and housing, Lebonaamang Mokalake

Last week, I looked at section 14 (1) of the constitution of Botswana. I explained how it relates to access to and ownership of land. I argued that as much as this section gives clear rights to all Batswana to reside in any part of the country, some agencies dealing with (tribal) land administration frustrate this. I gave an example of how and why the system of land overseers frustrates this. Some land overseers discriminate people on the basis of their place of origin and morafe (tribe). This obtains all over Botswana. We all know it. Some have experienced it.

This week’s piece is directly linked to the preceding one. I focus on section 15 of the constitution of Botswana. I try to find out how it relates to access to land, if at all it does. My interpretation may not be perfect. It is, however, intended to assist the reader to (re)think about these issues. I am not lawyer. My interest is to provoke a debate. Section 15 deals with the “protection from discrimination”. Its subsection 3 reads, “In this section, the expression “discriminatory” means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description”. I link this to tribal land administration. 

Before the Tribal Land Act (TLA) was reviewed in 1993, tribal land allocation was, in black and white, based on tribal affiliation or place of origin. For instance, Batswana could only get tribal land in their respective tribal territories. Well, those with money could buy anywhere. That tribal land is not bought or sold is just theoretical. It happens. I will focus on this in future articles. Before 1993, the dikgosi or their land overseers had power over the allocation of tribal land. They have since lost that, tremendously.  Before 1993, they insisted in knowing the applicant’s ward, kgosana (headmen), place of origin, your father, and some funny things. They needed these to authenticate tribal affiliation or identity. This was also useful to the land boards. It was difficult or impossible for a Mokgatla, for instance, to be allocated tribal land in GaNgwaketse or vice versa. This applied across the country. Prior to 1993, the TLA was purely tribalistic and thus promoted tribal disharmony, disunity and superiority and inferiority complexes amongst merafe

Interestingly, its review, on paper, tried to make access to tribal land inclusive and democratic. Yet, on the ground, things remain controversial as I argued in my previous articles. In a democratic country, the TLA, prior 1993, went against the principles of a democracy and even violated section 15 of the constitution which is against discrimination on the basis of tribe, race, place of origin etc. Then, the TLA only allowed the allocation of land to tribesmen. Marginalised groups, especially the Basarwa, struggled because they could not fit properly into the Tswana context of ‘tribesmen-ship’. They lived a nomadic life.  They were dispossessed of their land by the dominant groups, who easily identified themselves as constituting ‘tribes’. After 1993, every Motswana has the right to live anywhere in the country. This, however, was not welcome by all, especially some dikgosi who feared that the coming in of the ‘outsiders’ would undermine their political authority. Often, ‘outsiders’ do not feel obliged to participate in the socio-economic development issues of their ‘new’ villages. It happens; ask the dikgosi the urban villages. Some Batswana also opposed this new TLA on the basis of ‘protecting’ their culture and tribal identity. 

Is discrimination against tribe/place of origin not an issue under the amended TLA? The answer is yes and no. No because the constitution and the TLA prohibit it. Yes because it happens on the ground. The dikgosi’s or land overseers’ role in land administration has a bearing on this issue as I argued last week. Since 2012, the merafe, in the vicinity of Gaborone, have been arguing that the priority, when allocating tribal land, should be given to ‘tribesmen’, probably as it was before 1993. This situation is now common across the country. The dikgosi/land overseers still sign the application forms (consent) for tribal land allocation. Common sense should tell you that they are highly unlikely signing these for ‘outsiders’ willingly. Even if they sign, they do so grudgingly. Ask those who have had an encounter with a land overseer, especially in the peri-urban villages. 

Since 2012, it would be foolhardy for the government to think that it will be business as usual with the land overseers. It is not. The land boards’ Boards (maloko a maphata a kabo ditsha) are mostly composed of members of the tribe in which the land board is situated. Do these members assess applications fairly and transparently without being influenced by tribal affiliation and bigotry? A study is needed here. I, however, hypothetically submit that the administration of tribal land has tribal connotations. When the president announced the land quota system in 2012, many did not understand why such a move. This violates section 15 (3) of the constitution and the TLA. The president wittingly knows that the administration of tribal land is still tribalistic. Many merafe still resent the ‘de-tribalisation’ of tribal land in 1993. Whether the review was done with good intentions or not is not the crux of this piece. Merafe have not been saying their ‘displeasure’ openly; thanks to the land crisis in the urban villages; they are now saying it loud and clear. I always listen to some politicians, within the ruling party, trying to underplay the issue. Heela! You cannot suppress peoples’ feelings, especially when we talk of land-the soul and heart of any society.  Discrimination against place of origin and tribe is still a factor in tribal land administration. Constitutionally, the land boards are bound to allocate land to citizens. Yet, this does not mean that ‘outsiders’ are easily and well accepted by the host merafe. You will get your land, but live in that village like a trapped monkey! Social exclusion is a reality. Often, ‘outsiders’ are blamed for all sorts of things. Is this not discrimination? Having land, but without a peace of mind is, in itself, a mental torture. Assess your own situation and see what I mean!