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Abstract
This paper explores how the classification of urban and rural space is enshrined in the formal legal system of Botswana involving multiple normative orders derived from the country’s colonial past. In particular, it explores how these orders represent different types of land tenure. These depend on classification of land into state/urban and rural/customary domains, It traces the interactive dimensions at play in practice, highlighting complex relations to land through spaces embodying territorial, political, economic and social relations. These reflect varying spatial and temporal logics that may conflict with one another. Building on research carried out over a thirty year period, the paper focuses on two land disputes in Kweneng district, in a peri-urban area adjacent to the capital city Gaborone, under the jurisdiction of Kweneng land board. They illustrate the conflicts arising over what has become a market in land fuelled by a shift towards urbanisation, creating pressures for over it that have greatly intensified over the years, particularly in peri-urban areas where people flock to live and work. This raises questions about how parties’ relationships to land and their rights to it are perceived as legitimate within a dynamic, plural universe involving both state and customary law. This is one in which local people have developed their own strategies for transferring land on an “informal” basis. Engaging with legal pluralism, through the lenses of space and time, the paper demonstrates the importance of acknowledging the plurality of spaces that may co-exist at the same time and their temporal dimensions that may overlap or conflict with one another. This creates a better understanding of what differing interpretations of relationships to land entail and their ensuing legal dimensions, as well as people’s strategies for dealing with them.
Acknowledgements
The author would like to thank the editors, the anonymous reviewers and Bertram Turner for their critical and constructive comments on my draft version of the paper.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 This was carried out at various periods of time beginning in the early 1980s with a short gap in the 1990s. Building on this earlier research, my study on land was carried out mainly in 2009-2010, with shorter periods of further research in 2011, 2012, 2013, 2015, and more extensively in 2016. This means that it does not cover the reenacted Tribal land Act 2018 but some references are made to it in the text.
2 Accessed September 7, 2023. https://www.countryeconomy.com/demography/population/Botswana, .
3 Accessed September 20, 2023. https://www.statista.com/statistics/407981/urbanization-in-botswana/land
4 See UN launching its Agenda for Sustainable Development 2030 in 2015.
5 Government of Botswana website. Accessed September, 20,2023. https://www.gov.bw/about-our-country.
6 This demarcation of legal systems into separate spheres was advanced by the colonisers. However, these systems did not stand in isolation to one another but did interact. For discussion on this topic, see Griffiths (Citation1997).
7 My discussion of the Tribal Land Act is based on the 1968 Act that was in force when I carried out most of my empirical work and not on the 1918 Act, although some references are made to it.
8 As scholars use the terms “customary land,” “communal land,” and “tribal land” interchangeably this article follows this practice.
9 Please note that the periods of my research do not cover the re-enacted Tribal Land Act 2018 although some of the changes brought in by it are referred to in the text.
10 Please note that the term “tribal” is a legal term of art in relation to the legal and administrative regulation in Botswana today.
11 I am enormously grateful to all those who participated in the research over the years who are too numerous to mention here. Special thanks, however, must go to my research assistants Phidelia Dintwe, Phenyo Thebe, Boineelo Borakale and Kawina Power.
12 Accessed December, 27, 2022. https://unhabitat.org/botswana.
13 See Theron (Citation2009, 20) and Ansah and Chigbu (Citation2020).
14 Accessed December 27, 2022. https://unhabitat/org./botswana.
15 See also Kleeman et al (Citation2017) on Mali and Nuhu (Citation2019) on Tanzania.
16 The differentiation in value has now been abandoned so that tribal land will be compensated according to its market value, just like state land under s.32 of the TLA Act that was reenacted in 2018.
17 The 1992 Report of the Presidential Commission of Enquiry into Land Problems in Mogoditshane and other Peri-Urban Villages noted that serious allegations were leveled at KLBs staff involving criminal activities in relation to land, and even went as far as to recommend disbanding of KLB to “make a fresh start” (Botswana Citation1992a, 102, para.3.39).
18 Misca. No.137 of 1990 (HC).
19 In 1992, 2.2 Pula = 1 USD.
20 In fact when I was doing my research KLB often referred these matters to the kgosi before issuing or altering the certificate.
21 The Attorney General used the term tribesman to denote tribal affiliation that was a prerequisite for the application of the TLA before the 1993 amendment to it.
22 Kweneng Land Board v Matlho and Another Misca 137 of 1990 (HC).
23 Kweneng Land Board v Matlho and Another 1992 BLR 292.
24 Kweneng Land Board v Matlho and Another 1992 BLR 292 at 304 B-C.
25 Ibid 304 C-D.
26 Ibid 305 A.
27 Government of Botswana. 1992. Report of the Presidential Commission of Inquiry into Land Problems in Mogoditshane and Other Peri-Urban Villages. Gaborone: Government Printer at pages 2-7.
28 Ibid 5.
29 Ibid 5.
30 Ibid 6.
31 Mpofu and Another v Kweneng Land Board 2004 (1) BLR 213 at 216 B-C (HC).
32 For details see Morolong and Ng’ong’ola (Citation2007, 157-160).
33 Mpofu and Another v Kweneng Land Board 2004 (1) BLR 213. (HC).
34 In 2004, 4.72 Pula = 1 USD.
35 This is one of seven sub-land boards that service KLB that is the main land board for Kweneng district.
36 2004 (1) BLR 231 (HC).
37 Mpofu and Another v Kweneng Land Board, 2004 (1) BLR 213 at 216 B-C (HC).
38 Kweneng Land Board v. Mpofu and Another, 2005 (1) BLR 3 (CA).
39 This refers to the doctrine that courts will adhere to precedent in making their decisions.
40 This refers to the core legal rationale of the case.
41 Kweneng Land Board v. Mpofu and Another, 2005 (1) BLR 3 (CA) 12 B.
42 Kweneng Land Board v. Mpofu and Another, 2005 (1) BLR 3 (CA) 17 H.
43 Kweneng Land Board v. Mpofu and Another, 2005 (1) BLR 3 (CA).
44 KLB made a practice of demolishing houses that it deemed to belong to “squatters” who had built them illegally. See Murima and Another v Kweneng Land Board 2002 (1) BLR 18 (HC).
45 For a critique of this position see Ng’ong’ola (Citation1992).