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

2.2 Allocating land

Women who are heads of households are entitled to apply for and receive land on the same basis as men, but in practice a woman is likely to apply only if she is a household head. After receiving applications for customary land rights, the Secretary of the Main Land Board notifies the applicants of the date and place of the board meeting at which the applications will be heard. The Secretary then posts the details of the applications, so that they are open for public inspection. At the public, open meeting the Board either accepts or rejects the applications. This entire procedure is recorded in the minutes of the meeting (Mathuba 1992, p. 23).

Applications for residential plots and farmlands are also made to the Secretary of the Main Board. The applicants pay P5.00, and attach sketch plans to their applications. The Subordinate Land Board then carries out the necessary investigations and makes appropriate recommendations to the Main Land Board. If the Land Board decides to grant the land, it applies for the Minister’s consent. With the Minister’s consent, the Land Board signs the lease with the grantee. The common law grants are registered in the Deeds Registry under the Deeds Registry Act (Mathuba 1992, pp. 23–24).

Disputes of two kinds are observed: between individuals, and between the Land Board and individuals. Disputes of the former kind are usually boundary disputes. Often, these involve allocations made in the past by the chiefs. Disputes between individuals become difficult to resolve because there are no records regarding the allocations and witnesses may be too old or may have re-located. Disputes between individuals and the Board occur because the Board may have refused land rights; canceled rights; refused transfer of use; or in some cases allotted the same plot twice to two different parties.

Previously, all disputes went to the customary court system, which was also under the administration of the Ministry of Lands. However, this has been changed. All parties and witnesses concerned with the dispute meet with the Subordinate Land Board (or the Main Land Board, if there is no Subordinate Land Board). Often, the Board might have to go to the plots for on-site investigation. If appellants are dissatisfied, they can appeal to the Main Board, and then to the Minister responsible for all land matters. People aggrieved by the Minister’s decisions can appeal to a court of law (Mathuba 1994, pp. 6–7).

Land disputes are inherently judicial and not administrative, whereas the Land Boards are solely administrative bodies and have no judicial authority. Moreover, the Land Boards have often been actors in the events leading up to the disputes, which results in a conflict of interests. Hence, the 1993 Amendment to the Tribal Land Act empowers the Minister to establish Land Tribunals, which are to handle land appeals, and to enforce the Board’s decisions (Mathuba 1994, p. 16–17). [FN 1]

The Tribal Grazing Land Policy (TGLP) has been the most significant tenure reform undertaken by the Boards to date. Spurred by fears of an emerging tragedy of the commons, government decided to proceed with the creation of large commercial ranches in the sandvelt communal grazing areas in western Botswana. This presupposed a land classification exercise. To achieve these ends, communal/tribal lands were divided into three zones:

1. communal areas: rights in these customary communal lands remain unaltered;
2. commercial farming areas: ranches of 6,400 hectares (8 kilometers x 8 kilometers) are surveyed, inventoried, demarcated, and then advertised for leasing to individuals, groups, or communities (these areas are administered under common law); and
3. reserved areas: lands were set aside for future use and as safeguards for the poorer members of society (Keijsper 1992, p. 9; and Hitchcock 1980, pp. 12-13).

The TGLP recognized that the already existent Land Boards were to implement the new system of land allocation. Hence, the Main Land Boards took over the allocation of commercial farming areas, and Subsidiary Land Boards took over the allocation of communal areas. Four main agencies are involved in TGLP: the Ministry of Local Government Lands and Housing, the Land Boards, the Ministry of Agriculture (which provides technical advice on range management), and the National Development Bank (which provides financial support for agricultural development).

The TGLP provides the lessee of the commercial farm a number of rights s/he did not possess under customary law. The leases are valid for 50 years, are heritable, and give the lessee exclusive possession of the land and the right to fence. Each ranch is 8 kilometers x 8 kilometers. The lessee pays a rent of 4 thebe per hectare annually. According to the lease, the farmer should practice modern methods of cattle management, such as controlled breeding, daily watering, rotational grazing, and the like (Mathuba 1992, p. 13).

In the event, some basic premises on which TGLP was based have been placed in doubt; in particular, the assumption that there were large, vacant lands, not used or occupied by anyone, turned out wrong:

1. The policy completely overlooked the user rights of the Bushmen minority (the San people).
2. The capital required for a modern infrastructure for the rancher was expensive and far beyond the reach of many ranchers.
3. Although ranchers had exclusive rights to large TGLP ranches, they continued having access to communal grazing. Because they had dual grazing rights, they were more prone to misuse the communal areas.

Despite these shortcomings, the government claims that the TGLP has shown high levels of ranch development and improved management practices in districts such as Central, Kweneng, and Ngwaketse. Moreover, the policy has resulted in comprehensive land planning in rural areas, and farmers are now aware of the need for better range and livestock management practices (Mathuba 1992, pp. 18–19). Eventually only 4 percent of the country was demarcated for TGLP commercial ranches (Botswana 1991, pp. 10–11). The government remains convinced that fenced ranches are more productive than range under communal management.

As per the National Policy on Agricultural Development (Botswana 1991), TGLP has been modified and expanded to cover all production systems in the communal/tribal lands. Farmers are allowed, where feasible, to fence livestock farming land either as individual, groups, or communities to improve the productivity of the livestock sector. In community fenced areas, community boundaries will be established by the Land Boards, and a detailed land use plan will be prepared by the Ministry of Agriculture in consultation with local authorities and communities. After the approval of this land use plan, government will provide the community with a variety of development services, including assistance in fence development.