In my last instalments, I focused on the chiefs and land in Botswana. I argued that in Botswana, the chiefs play a very minimal role, if any, in land administration. This is compounded by the fact that the ruling elite, since 1966, developed a very pessimistic view about the role the chiefs can play in land administration. Historically, as I argued, the chiefs’ role in land administration has its own problems and challenges. In this piece, I draw the reader’s attention to what has been going on in other countries as far as the chiefs and the land issues are concerned. I use a historical perspective. A leading researcher in land issues in Africa, the South African sociologist, Lungisile Ntsebeza, argues in the context of South Africa that “Even if land were transferred to Tribal Authorities, these institutions… are inherently undemocratic and, certainly in their existing form, make it extremely difficult for ordinary rural residents to hold them accountable” (Ntsebeza 2003:80). This statement doubts the capabilities of the chiefs to effectively manage land. Ntsebeza’s words indicate the complex and complicated debate surrounding the role of the chiefs in land administration in a democracy. It is interesting, however, to note that democracy itself is a foreign concept- highly contested.
In colonial Africa, the colonial regimes dismantled the traditional governance systems which governed land and introduced foreign concepts and institutions, most of which were/are incompatible with African ways of life/governance systems. For instance, the colonialists introduced ‘legal dualism’ whereby common law coexists (but not necessarily harmoniously) with customary laws. In many countries, this undermines the access to and ownership of land by the poor, politically and economically powerless. When the colonialists departed in the 1960s, the new African political elite/leaders hurriedly replaced, repealed and or adapted the indigenous and the foreign systems of land administration for various reasons. In most cases, the so-called revolutionaries had problems with the chieftaincy, seeing the chiefs as collaborators with the colonialists.
For example, in socialist Tanzania, communist Mozambique and Ethiopia, the new revolutionaries abolished both the “indigenous and imported systems” and nationalised all the land. Kenya and Malawi, on the other hand, abolished customary tenure and opted for private land ownership system. Zambia, Nigeria and Sudan did away with the colonially introduced freehold tittles and opted for long-term leaseholds. Interestingly, Senegal and Botswana “have persistently pursued adaptation or incremental land tenure reform–retaining and promoting customary, statutory and common law land rights systems, but seeking ways for integrating them” (Kalabamu 2011:118). This integration, in the case of Botswana eroded the chiefs’ powers over tribal land. It is worth commenting that in Zambia, Nigeria, South Africa and Ghana, the chiefs have considerable power over tribal land than in Botswana or Zimbabwe for example. But the debates on whether to stifle or maintain such powers rage on. Upon assuming power, in 1994, the African National Congress (ANC)-led government in South Africa “has been reluctant to challenge key aspects of the authority of customary leaders, particularly in allocating land” (Ntsebeza 2003:68), and this disappoints many. In South Africa, the Traditional Leadership and Governance Framework Bill of 2003 and the Communal Land Rights Act (CLRA) of 2004 “accord considerably more power to existing customary authorities than in any of the previous drafts over the last decade” (Mathis 2007:111). According to Ntsebeza, this “compromised democracy”.
In Zimbabwe, the chiefs have limited power, at least in terms of law, when it comes to tribal land allocation. The situation in Zimbabwe has some resemblance with the one obtaining in Botswana. For instance, in Botswana, whereas the Land Boards are responsible for the allocation of tribal land, in Zimbabwe the Rural District Councils are in charge. The Land Boards are expected to consult with the District Councils and the Tribal Authorities (chiefs) on land matters, and a similar provision is found in Zimbabwe where the Rural District Council is expected to consult with the chiefs. The Zimbabwean government amended the Communal Land Act of 1982 “through the adoption of the Traditional Leaders Act and provided that land allocation must be exercised in consultation with the relevant chief” (Mohamed-Katerere nd). In Zambia, “No title, other than a right to use and occupy land under customary tenure shall be valid unless it is approved by the chief and the local authorities and a lease is given by the President” (Zambia Alliance nd). In Lesotho, the Land Act of 2009 recognises the chiefs’ role in the allocation of land (both in urban and rural areas). The Act states that “Subject to subsections (2) and (3), the power to allocate and to revoke allocations to land shall be exercised by the local authority having jurisdiction in the area in consultation with the chief having jurisdiction in the area” (Lesotho Land Act 2009, PART IV 14 (1)). The Act, however, states that “Where the customary law is inconsistent with this Act, this Act shall prevail” (PART II 4 (3)). In 2009 in Uganda, the Buganda Kingdom resisted the new land reform law precisely because it threatened its political and economic power base (Oketch 2009).
The above examples lend credence to Peters who contends that in Africa, “the colonial and postcolonial governments have had profound effects on both the conditions under which customary and other claims and rights [to land] are defined and fought over” (2004:294), and Botswana is no exception.