John W. Bruce, Mark S. Freudenberger and Tidiane Ngaido (1995):
Old Wine in New Bottles:

2.1 Tribal Land Boards

The reliance on traditional authorities to manage land in the colonial period produced a reaction later. Even before independence in 1966, there were accusations of favoritism and abuse of power leveled against the chiefs. The first president, Sir Seretse Khama, himself in the royal line of the Bamangwato sub-tribe of the Tswana, moved to dilute the authority of the chiefs and to strengthen the political power of the new national government. The Tribal Land Act of 1968 was passed, coming into force in 1970. The Act has been seen as a relatively effective decentralization of authority over land, but concerns have been voiced about the domination of the boards by large stockholders (Hitchcock 1980; Parson 1993). There have been frequent changes in the composition of the boards in the attempt to achieve a balance between participation and control.

Under this Act, customary land tenure remained intact. The actual rules for land distribution and administration on tribal lands did not change, but the power of the chiefs was undermined. The chiefs’ traditional authority in making land allotments was passed on to the newly created Land Boards at the district level. The Tribal Land Act vested all the powers of the chief related to land matters in the Land Boards. Twelve Land Boards were established, which started operations in district headquarters in 1970. In 1973, thirty-seven Subordinate Land Boards were established to assist the main Boards (Mathuba 1992, 1989).

The Land Boards do not make policies themselves, but are under the guidance of the Ministry of Local Government, Lands, and Housing. The Ministry coordinates the Boards’ activities, providing them with funds and other logistical support. Various departments within the Ministry support the activities of the Boards.

The Tribal Land (Amendment) Act, 1993, stipulates the main functions of the Land Board. They are:

1. granting rights to use land;
2. cancellation of any rights, including those made by the Chief;
3. imposition of restrictions on the use of tribal land;
4. plan on how tribal lands should be used;
5. authorizing any change of use of tribal land;
6. authorizing transfers of rights on tribal lands; and
7. hear appeals from Subordinate Land Boards.

Matters regarding grazing lands and boreholes are dealt with by the Main Land Boards. Allocations such as those for commercial and industrial purposes are made by the Main Land Boards under the common law, that is, the Roman-Dutch Law of the Cape Colony in South Africa, received by Botswana during the colonial period. Allocations and the accompanying rights can be canceled only for reasons stipulated in the Tribal Land Act (Mathuba 1994, pp. 3–4).

The Main Land Board works with the three other local authorities, namely, District Administration, District Councils, and Tribal Administration. Individuals who have grievances with the Main Land Board, and need assistance in formulating their appeals to the Ministry, route their appeals through the District Administration. Also, the land use plans are drawn up at the District Land Use Planning Unit, which is supervised by the District Commissioner.

The Main Land Board consults with the District Council only when it formulates policies relating to its functions. The Land Board is not obliged to accept the Council’s views. In the Tribal Administration, the Land Boards rely upon overseers/ward heads to sign the application forms for customary grants to ensure that the plots requested are not already occupied. Also, the overseers check to see that the plots are suitable for the land use proposed.

The Subordinate Land Boards deal with allocations for uses such as residential, plowing, and grazing under customary law; allotees are issued with Certificates of Customary Land Grant. However, all common law leases go to the Main Land Board for approval. All leases of more than one year need to be approved by the Ministry (Riddell and Dickerman 1986, p. 13). Hence, the main functions of the Subordinate Land Boards can be listed as follows:

1. allocate land for customary purposes;
2. impose restrictions on the use of the land;
3. recommend cancellations of customary land rights to the Main Land Board;
4. receive, investigate and make recommendations to the Main Land Board with respect to common law and borehole applications; and
5. settle land disputes (Mathuba 1994, pp. 3–4).

The membership of the Land Boards has varied over the years. Under the Tribal Land Act, 1968 (Botswana 1968), all members, except ex-officio members, were either elected or appointed. Any person who had been previously declared legally insolvent or bankrupt, or sentenced to imprisonment could not be a member of the Board. In case any member was unable to exercise the functions of his office, a temporary member could be appointed. The original membership of the Land Board was as follows:

• the ex-officio member was the chief, or his deputy;
• one member appointed by the chief, only in the case of Batawana, Bakgatla, Bakwena, Bangwaketse, Bamalete, and Batlokwa Tribal Territories;
• two members elected by the District Council from among themselves; and
• six members appointed by the Minister (four in Bakgatla, Bamalete, Batlokwa Tribal Territories, and Barolong Farms; five in Tati Land Board).

Hence, there were 7–10 members on the Land Boards. The role of the chiefs varied in the boards under this 1968 Act; in the Batawana, Bakgatla, Bakwena, Bangwaketse, Bamalete, and Batlokwa Tribal Territories their roles were greater than in the Tati, Chobe, Kgalagadi, and Ghanzi Land Boards. This was specified in each case in the schedule to the Act. The Minister chose a chairperson for the Land Board; if he was unable to do so, the Board members chose a chairperson themselves (Botswana n.d.)

In 1977, the Minister of Local Government and Lands appointed an Interministerial Committee to look into the operation of the Boards. The Committee’s report recommended that the members were to be younger, and better educated. Also, the Committee’s findings revealed that the method for selecting members was unfair. Since the Land Boards were the trustees of tribal lands, it was recommended that the public have a greater input in the selection of Board members. Also, the Minister’s right to choose the chairperson of the Land Board was abolished. Instead, the Committee recommended that the chairmen of both Main and Subordinate Land Boards be elected annually (Mathuba 1989, pp. 40–41).

Hence, in 1984, the Board membership was the following (Mathuba 1989, p. 41):

• two representatives of the District Council;
• three representatives of the tribe appointed by the Minister of Local Government and Lands; these three members are selected from a slate of six members elected publicly at the principal kgotla of the tribal area;
• three other members selected by the Minister;
• one representative of the Minister of Agriculture (ex-officio);
• one representative of the Ministry of Commerce and Industry (ex-officio); and
• one representative of the chief or tribal authority.

This system, too, was seen as undemocratic. Often, the candidates before the kgotla were not known to the local polity. Moreover, people complained that after the election, the names of the elected persons were often ignored by the Ministry; elected people were instead replaced by the Ministry’s favoured persons. Hence, the membership on the Land Board was re-composed once again.

Since 1989, the Board consists of twelve members (Mathuba 1994, p. 3):

• one representative of the Minister of Agriculture (ex-officio);
• one representative of the Ministry of Commerce and Industry (ex-officio only when matters relating to commerce and industry are discussed);
• five democratically elected people at the kgotla (traditional assembly) chosen by the Minister of Local Government and Lands; and
• five members nominated by the Minister responsible for land matters.

Annually, the members elect a chairperson from among themselves.

The Subordinate Land Boards assist the Main Land Boards in administering tribal lands. Under the Establishment of the Subordinate Land Boards Order of 1973, each Subordinate Land Board had five members (Botswana n.d., p. 56):

• one member elected by the District Council;
• one member elected by the Land Board;
• one member elected by the headmen or sub-chiefs of the villages within the Subordinate Land Board’s area;
• one member appointed by the Minister of Local Government and Lands; and
• one member appointed by the Minister of Agriculture.

These five members elected a chairperson among themselves.

The composition of the Subordinate Land Boards has changed since 1989. Currently, there are ten members (Mathuba 1989, p. 53). They are:

• six representatives of the people elected publicly at the kgotla;
• two members appointed by the Minister of Local Government and Lands;
• one representative of the Minister of Agriculture (ex-officio member); and
• one representative of the Minister of Commerce and Industry (ex-officio member).