Land, the Constitution and The Tribal Land Act

SHARE   |   Sunday, 20 July 2014   |   By Dr Boga Manatsha
Land development in the CBD Land development in the CBD

In my previous piece, I placed the ownership of and access to land within an international legal framework. I argued that the two are human rights issues- very much linked to the right to food, water and shelter. Botswana’s constitution and the Tribal Land Act (TLA) are clear on the right to own property and land respectively. I this regard, Batswana should not be apologetic and think that ownership of and access to land is a privilege. It is a right enshrined in the Constitution of the Republic of Botswana. The land boards’ officials/employees should invariably ensure that this fundamental right is judiciously executed. Similarly, Batswana should insist and ensure that their right to own and access land is executed transparently without fear and favour. However, there is a problem with some citizens who misuse the rights enshrined in the constitution and the TLA by flagrantly engaging in corrupt practices. This undermines the rights to access and own land and property by all and sundry. Across Africa, and Botswana is no exception, land is used as a political weapon by politicians. In the process, they disfranchise the masses and the landless.

Sometime in 2012, I argued, when asked by the then Mmegi reporter, Ephraim Keoreng, that “Batswana lack general education about their rights to land more so that such rights have been codified and packaged in legal jargons. People do not understand the Tribal Land Act and other policies and their implications”. I still argue so, and I shall elaborate hereunder. In Botswana’s education system, students hardly learn about their rights to land and the implications of certain legislations on the use and access to resources. They graduate into adulthood with this brutal ignorance or simply put, ‘knowledge bankruptcy’. This costs them dearly. I am certain that most Batswana, including those who went as far as tertiary education, have never seen the TLA or the constitution. Similarly, most cannot differentiate between freehold, tribal and state land. This lack of basic knowledge compounds the problems associated with land administration. Many Batswana are cheated when buying and selling land, a common practice these days, because they are clueless on very basic things about land administration in their country. Many foreigners dealing in property development know the land administration issues better than most Batswana.

I mainly blame the government from excluding such fundamental issues from the curriculum (starting at primary level). Batswana deserve to know their rights as we are often told by our learned friends, lawyers, that ‘ignorance of the law is not an excuse’. In Botswana, it is not only ignorance of the law by citizens; it is the state’s ignorance and failure to understand that citizens ought to be educated about their rights. The rights to land should be easily incorporated in the Social Studies, Environmental Studies, History, Geography, and other relevant subjects starting at primary level. Students should be taught constitutional law at a very young age. It should not be the privilege of the-to-be-lawyers. I have noticed that land rights confuse many because the state’s intervention and its centralisation of land management brought in western concepts, virtually unheard of and equally sophisticated for many. The TLA, like the constitution, is written in complex/difficult legal jargons, intimidating to many, including the degree holders.

Nonetheless, I remind Batswana that section 8 of the constitution, though it might be unfamiliar to many, protects the right to own property. Land, a fundamental means of production and a well-sought-after property, is covered by this section. We have read sordid stories whereby some unscrupulous elites cheat, or dispossess, the unsuspecting villagers-the unsophisticated-of their land using sophisticated chicanery. This is unconstitutional and Batswana should insist on their rights to land and approach the relevant authorities in such cases. They can approach their dikgosi or the district commissioners. Section 8 of the constitution reads, in part: ‘(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily  acquired, except where the following conditions are satisfied, that is to say— (a) the taking of possession or acquisition is necessary or expedient— (i) in the interests of defence, public safety, public order, public morality, public health, town and country planning or land settlement; (ii) in order to secure the development or utilization of that, or other, property for a purpose beneficial to the community; or  (iii) in order to secure the development or utilization of the mineral resources of Botswana”. Similarly, the TLA states clearly that the land in each tribal area is for the benefit for all citizens for this Botswana. It is every Motswana’s legal right to be allocated land anywhere in the country.  Section 14 (1) of the constitution is clear on this when its states, “No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Botswana, the right to reside in any part of Botswana”. It is the State’s obligation to protect its citizens and ensure that their fundamental rights are not trampled upon. Therefore, landlessness should not be allowed in Botswana, if we all agree that the right to own property and land are enshrined in both the constitution and the TLA. Batswana should know their rights and must not feel shy to express their displeasure if any. They should, without fear, demand better service delivery, including access to land. But it is also up to Batswana to inform themselves- for ignorance of the law, as I said, is no excuse under our constitution!!