Transformative spaces: peri-urban domains, legal pluralism and land in Botswana

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.

Keywords:

• Botswana
• peri-urban
• space
• time
• land
• Tribal Land Act
  
• High Court
  
• Court of Appeal
  

1. Introduction

My paper explores how the classification of urban and rural space is enshrined in the formal legal system of Botswana that involves multiple normative orders deriving from the country’s colonial past. In particular, it explores how these orders pertain to land and the ways in which different types of land tenure have different legal rules governing them that are founded on notions of what represents the classification of land into state/urban and rural/customary dimensions. It traces the interactive dimensions at play that display complex resulting relations to land through spaces embodying territorial, political, economic and social relations within which land is currently constituted as the product of different spatial and temporal logics. These derive from different understandings of the various normative orders embodied in the current formal legal system of Botswana. These embrace linkages to written, statutory laws, as well as to unwritten, customary laws that stem from different historical trajectories that provide varying links to the present and paths to the future.

1.1. Importance of space and time

Adopting an approach to legal pluralism that engages with space is important because, as the paper will demonstrate, formal legal understandings of law have been channelled in such a way as to favour an interpretive frame that only allows for one understanding of law. This acts to the exclusion of all other interpretations, thereby upholding a state centred, static, formalist approach to law that has the power to negate all other interpretations that deviate from it. For another perspective on law and its engagement with legal pluralism see von Benda-Beckmann, von Benda-Beckmann, and Griffiths (2005, 2009a, 2009b) who provide a more interactive and empirically grounded perspective that explores the status of legal rights, in this case, how rights to land and parties relationships to it, become viewed as legitimate within a legally plural universe involving both state and customary law. This is one that reflects a dynamic and unpredictable environment. Engaging with legal pluralism through the lenses of space and time, however, highlights the importance of acknowledging the plurality of spaces that may co-exist at the same time, that may vary, complement, overlap or come into conflict with one another, allowing for differing interpretation of what relationships to land entail. For as Massey (2013) has observed, a site in space "isn’t so much about physical locality so much as relations between human beings." As Gluckman (1971, 45–46) noted much earlier

Property law in tribal societies defines not so much rights of persons over things, as obligations owed between persons with respect of things … The crucial rights of such persons are demands on other persons in virtue of control over land and chattels.

Thus, whatever its nature, a site in space cannot be divorced from ideology or politics (Lefebvre [1974] 1991) because it cannot be viewed as "a natural medium that stands outside of the way it is conceived" (Crang and Thrift 2000, 3). This approach acknowledges that spatial dimensions cannot be divorced from time, for “space without time is as improbable as time without space” (3). This is because human behaviour “is located in and constructed in space” (Low and Lawrence-Zūniga 2003, 1) that is linked through time to human experience and that, as Fabian (1983) demonstrates, gives rise to a number of differing interpretations of time at different moments in history.

1.2. Research methodology

The paper derives from research carried out on and off over a thirty year period in Botswana. It forms part of a larger research project,¹ of which land forms part (Griffiths 2019), one that draws on a variety of sources that involved a range of methods in data collection that inform the project’s findings. These include archival research, examination of formal laws in court and land board and land tribunal records: fieldwork on unwritten or customary law and participant observation of disputes and cases and interviews with government personnel, members of NGO’s and local citizens over the years. Extended oral life histories of families from Molepolole, the central village of Bakwena in Kweneng district, updated from the 1980s provided data on two family groups over five generations. Combining sources and methods in this way acknowledges the multiple dimensions from which relationships to land may be ascertained. It allows for the recognition of different scales that come into play, ranging from the broad-brush sweep of abstract international policies to more nationally constituted perspectives concerning the acquisition and use of land. Both filter into micro-units of family and household experience of land administration in daily life, highlighting their diverse impact on individuals’ well being and livelihoods.

The article focuses on two disputes that took place in a peri-urban area in Kweneng district adjacent to the capital city, Gaborone, under the jurisdiction of Kweneng land board. They demonstrate the type of conflicts that arise over what has become a market in land. This has been fuelled by the shift towards urbanisation that has taken place over many years. For while the people of Botswana have always maintained connections between rural and urban domains, the pressure for land has greatly intensified over the years, particularly in peri-urban areas where people from all over the country come to live and work.

1.3. Importance of land: urban and peri-urban domains

The question of who has access to and control over land is not just pertinent to Botswana but is of global concern. It lies at the heart of demands generated by population growth and dispossessed populations due to war, famine and economic migration (Cotula 2015), as well as by the need for food security (Murphy 2013) and the generation of energy (Borras and Franco 2010). At the same time it forms part of longer term goals of securing environmental sustainability (Cotula 2016; Cotula, Anseeuw, and Baldinelli 2019), as well as responses to climate change (Habitat III 2016). Thus it not only concerns macro-perspectives, that centre on a national, international or transnational stage, but also forms a critical component at the micro-level of individual, family and household provision for shelter, livelihoods and processes of capital accumulation.

One of the most pressing arenas in which land represents a crucial resource is with regard to the growth of urbanisation that is occurring world wide. According to the Organization for Economic Cooperation and Development (OECD) and the European Commission (EC) (2020, 10) “the populations living in cities, high density places of at least 50,000 inhabitants has more than doubled over the last forty years”. This has led to a situation where cities today “are home to almost half the global population” (10). While Africa is said to be “the world’s least urbanised continent” the rate at which its cities are expanding “is growing faster than no other worldwide” (African Policy Circle 2019, 5). The rate at which this urbanisation is taking place, however, does “very across the continent” (5). In this process “Sub Saharan Africa is often regarded as the world’s fastest urbanizing region” (Saghir and Santoro 2018, 1).

Thus Botswana is not alone in experiencing a growth in population and urbanisation. In its case its estimated population growth has risen from 574,094 in 1971, to 2,588,432 in 2022² according to the National Development Plan (NDP) 10, (2009–2016) p 14 Table 1.2). This has gone together with increasing rates of urbanisation. Thus the population living in urban areas has grown from 9% in 1970 (NDP 10, p.20, para 2.19) to an estimated 72.22% in 2022.³ According to the government “urbanisation is an inevitable consequence of economic development” (NDP 10, p.20, para 2.18), so that although it acknowledges that “urban population growth is due to natural increase”, it also observes that “a high proportion results from migration from rural areas of persons in search of a better life and services, and to the reclassification of formerly rural into urban areas” (NDP 10, p .20, para 2.21). What counts as an urban area in Botswana is defined as “any locality with 5000 or more inhabitants with at least 75% of its workforce engaged in non-agricultural activities” (NDP 10, p.20, para 2.19).

One of the critiques levelled at earlier research on urban studies has been their tendency to treat the “urban “as a separate domain from the “rural”. In a recent report the OECD/EC criticised this approach, opting instead for one that operates on a continuum to provide “a more nuanced perspective than the traditional urban-rural divide” (OECD/EC 2020, 11). For as Home observes (2004, 24) “Not all human societies and cultures recognise such a rural-urban dichotomy”. In Botswana, people have always maintained connections between the two which they combine in order to provide important resources for their livelihoods. These combinations take on varying dimensions that play out at different moments in individuals, families’ and households’ lifecycles (Griffiths 1997, 78–91 and 95–99, 2012, 83–84; Kerven 1979). To complicate matters, there is no precise definition of “peri-urban” with the result that some scholars have criticised the terminology for remaining “vague” (Wolff, Mdemu, and Lakers 2021, p.2 of 17). This article adopts the definition put forward by Home (2004, 23) that

Peri-urban areas can be defined as those surrounding towns and cities, within a daily commuting distance from the core and characterised by high interaction with it.

These areas represent physically grounded and territorial places, but they are also spaces involving “flexibility, uncertainty, ambiguity and coalition formation linked to entrepreneurship” (Fourie 2004, 31). They are spaces in Botswana where “indigenous [customary] land tenure interfaces with received capital markets” (Molebatsi 2004, 80–81). Thus they embody “a zone of interaction between different systems (urban and rural), with flows of national, human and financial resources” (Home 2004, 23). Such a zone encompasses “different land administration systems in areas physically next to each other (state and tribal land)” (Molebatsi 2004, 79). Dealing with this state of affairs has created challenges for policy makers and contributed to the peri-urban problem in Botswana today. The two disputes highlighted in this paper demonstrate the types of tensions and conflicts that arise with peri-urban land that are underpinned by Botswana’s formal legal system.

2. Constellation of factors impacting on land in Botswana

How land is currently situated in Botswana is a product of historical engagement with regional forces such as the Union of South Africa (now the Republic of South Africa), and colonialism in the form of British indirect rule under the Bechuanaland Protectorate (I885–1966), and more recently international influences, especially international market forces. The impact of these historical engagements create current dilemmas around land, that Botswana, like other countries worldwide face in terms of growing population, urban migration, and the need for land as a market commodity driven by the UN, the World Bank, and other transnational institutions.⁴ whose policies Botswana endorses in its Vision 2016 and 2036.

A landlocked county, Botswana covers a land mass about the size of Texas at roughly 582,000 square kilometres⁵ Within its borders, however, the bulk of the population estimated at one third is clustered around the capital city, Gaborone, and its catchment area in the southeast of the country. Thus Botswana encompasses a number of topographical, socioeconomic, and cultural features that create the contexts within which it is governed by law and policy. In these processes law has played a key role over time, resulting in current legal regulation incorporating both unwritten customary law, as well as statutory and case law derived from Western/European influences. These differing systems of land tenure established during the colonial era continue to inform how land is dealt with in the country today.

As with other African countries, law represented "the cutting edge of colonialism" (Chanock 1985, 4) that promoted a particular vision of social order and property rights aimed at controlling and governing its colonial subjects. It reflected an ideological quest for power through the inscription of law on territory, for as von Benda-Beckmann, von Benda-Beckmann and Wiber (2006, 2) note, property regimes "cannot be captured in one-dimensional political, economic or legal models". Nonetheless, the colonial model sought to make them so by creating separate legal regimes through spaces that distinguished between colonisers and the colonised. This approach embodied separate and parallel systems of law (Hooker 1975) in which one land regime applied to the colonisers while another applied to the colonised assigned to "tribal areas" by their colonial overlords. As a result, colonialism "created and maintained boundaries through dualistic or pluralistic legal structures, boundaries in physical space defined and managed by laws and regulations" (Home 2012, 9).⁶ With this in mind, the paper now sets out how land is regulated under the formal legal system of Botswana.

3. Legal regulation of land in Botswana

On independence in 1966, Botswana inherited a framework within which the use, control over and allocation of land was regulated according to how it was classified. As a result three types of land tenure exist. The first, involves tribal land held under customary land tenure under the Tribal Land Act (Cap 32.02) enacted in 1968, repealed and re-enacted in 2018.⁷ This recognised the communal forms of tenure that are perceived as forming the basis of Africans’ relationship to land, most of which covers rural land, and vested their control in land boards at a district level. The second type, is state land, previously crown land administered by the Bechuanaland Protectorate (1885–1966). Most of this type of land is found in the urban areas. The third type of land is freehold land, created for settlers during the colonial era. This last type of tenure recognised individual ownership in land with a right to free and undisturbed possession, largely in relation to agricultural land. Although this tenure was never widespread and has decreased significantly since independence, it has had a profound influence on the way in which rights to land are perceived. For it is against this standard that the treatment of land under customary law has come to be judged.

Under the formal legal system of Botswana, the different types of land tenure have different legal rules governing them. Among these systems a major distinction is drawn between tribal land, that is often referred to as communal land, or land that is dealt with under customary law that mainly applies in rural areas⁸ (which forms around 70% of the land in Botswana), and state or freehold land. While tribal land is enshrined in statute, it mainly derives from understandings about oral, unwritten customary law, in comparison with the written, statutory laws and case-law that applies to state and freehold land. All three systems have their roots in the colonial past. As Morolong and Ng’ong’ola (2007,143) observe “the unique features of contemporary tribal or customary land tenure in Botswana can be retraced to the manner in which the country’s plural land tenure system was constructed during the first few decades of colonial rule”. This resulted in complex relations to land through spaces embodying territorial, political, economic, and social relations that far from depicting separate and isolated regulation reflect an interactive and ongoing process of dialogical engagement.

3.1. Regulation under the Tribal Land Act 1968⁹

Under the Tribal Land Act (TLA), the twelve land boards in Botswana administer customary grants of land and common law leases. Neither of these types of tenure confers ownership on the recipients, as control over the land vests in the land boards who hold it "in trust for the benefit and advantage of citizens of Botswana" (Section 10[1]). This wording reflects the 1993 amendment to the Act that opened up land boards’ jurisdiction to all citizens regardless of their tribal affiliation. So land boards replaced Chiefs and tribal authorities’¹⁰ control over the allocation and distribution of land within their polities. Their duties involve the allocation of land and restrictions placed on it, changes in the use of land rights, transfers of land rights, and adjudication of land disputes and appeals. Although land boards are autonomous under section 9 of the TLA, their institutional location within the Ministry of Land Management, Water, and Sanitation Services (formerly the Ministry of Lands and Housing), places constraints on their activities. The subject of my research was Kweneng land board (KLB) that administers land in Kweneng district,(KD) whose jurisdiction extends to around 5,000 square kilometres. Thus it covers the entire spectrum of land allocation in Botswana from rural cattle posts to peri-urban areas (Botswana 2003b). Molepolole village that is the administrative centre of the district, also lies at the heart of the Kwena polity where I have carried out research over many years.¹¹

4. Problems facing land in Peri-urban areas

As a country, Botswana has no shortage of land when it comes to providing for its citizens. When it acquired independence in 1966 it’s economy was predominantly agricultural but by 2003 the government had recognized that this was no longer the case and that there had been a decline in agriculture from 40% of GDP in 1966 to only 3% in 2003 (Botswana 2003b, p1, para.2). This shift has led to an increase in urbanisation that has given rise to a shortage of land in areas where people want to live and work. UNHABITAT attributes this to “two phenomenon, the rural to urban migration typical of dry lands where livelihood opportunity in the countryside are more and more scarce because of water scarcity, and the peri-urban migration”.¹² It also notes that “peri-urban areas in Botswana play a vital role in urbanization because they absorb much of the population that, coming from the rural areas, is not accommodated in cities, primarily because of the shortage in affordable land and housing”. This is also the case with other peri-urban areas in other countries in Africa.¹³ UNHABITAT goes on to observe that in the case of migration, including peri-urban migration, “vulnerability of the urban context is highly determined by the great pressure that high concentration of people put on unplanned urban settlements whose services networks, such as health, education, water, electricity and transport are mostly underdeveloped”.¹⁴ This has led to overcrowding which has in turn led to a very active market in land. This experience is not confined to Botswana but is also present in peri-urban spaces elsewhere in Africa. Thus Theron (2009, 18) on Central Africa observes, “peri-urban space is clearly an arena where claims are constantly re-negotiated”, while Leitner, Novak, and Sheppard (2023, 389) observe even more generally that people “are trying to figure out how to improve or sustain livelihood possibilities in what is a highly dynamic and unpredictable situation”.¹⁵ In Botswana, this has given rise to conflicts between those claiming rights under customary law, between those whose rights to land are upheld by government institutions and land boards, and those whom these bodies perceive to be ‘squatters’, who are regarded as having no legitimate title to land.

The cases that we are about to discuss arose in Kweneng district (KD), a place with close connections to the capital and proximity to the South African border. In earlier times “only 5% of the total land [in KD] was suitable for arable agriculture” (Botswana 2003b, p18) thus limiting its worth, not only in monetary terms, but also as representing a place to retire to at an older age. The pressure towards urbanisation has made retiring to rural areas less essential than it once was, with the result that this ‘rural’ land in areas adjacent to Gaborone has now become an extremely valuable resource. This has led to heated conflicts over it, resulting in hotly contested cases in the courts, especially in peri-urban areas like Mogoditshane in KD.

4.1. Contestations over land rights around Mogoditshane

At the time these cases arose in early1990 and in 2000, the road from Molepolole to Gaborone had land, primarily plough fields, on either side of it. However, this land was subject to different regulatory provisions depending on which side of the road it fell. On the one side, it was subject to customary land tenure administered by KLB. On the other, it was treated as state land. In the case of plots allocated by the land boards these were acquired for free (except for commercial land under common law leases). This meant that those acquiring them had to service the land (install electricity, water and sanitation) themselves. This was not the case with plots falling on state land that applicants had to purchase. The difference in their treatment was attributed to that fact that plots on state land had to be purchased and that they came (supposedly) with readily available services, unlike those allocated by the land boards that were free leaving it up to those who acquired them to service them.

Citizens living in the area found it hard to accept that this land on the road to Gaborone, now forming part of a peri-urban area, should be subject to differing rules and regulations. They were particularly aggrieved by the government acquisition of land under the Acquisition of Property Act (Cap. 32.10) that provided for plots on state land to be purchased at market value, while the acquisition of tribal or customary land, that was outside the scope of that Act, was paid for at a lower rate based on an agricultural valuation. This variation was attributed to the fact that those is possession of tribal or customary land did not need to pay for it, unlike those acquiring state land.

The differing regulatory norms attributed to plots of land adjacent to one another created enormous discontent among local citizens who did not distinguish between them. Thus citizens on tribal or customary land rejected the regulatory rules applied to them because felt they were being unfairly treated.¹⁶ They wanted the same terms for compensation for tribal or customary land as those that were being applied to state land. Their anger was such, that the government was forced to acknowledge the crisis created in Mogoditshane and other per-urban villages in the country (Botswana 1991) 12) where “excessive intervention of market forces led to a collapse of tribal land administration”.

This came about because local people who had access to plough fields in the area sought to capitalize on them by transferring or subdividing them and selling them to people who then converted them into residential property. Given that in most cases the land formed part of Bakwena Tribal Territory, it was formally under the control of KLB who should have been controlling its allocation, transfer, and authorisation for change of use. Long delays, often over ten years, and allegations of corruption,¹⁷ however, led to local people selling and transferring their lands on their own initiative, as a form of self-help. This raised questions about the rights to these properties that will now be discussed in the case of Kgosi (Chief) Motlhabane and Kweneng Land Board v Matlho and Another¹⁸ below.

5. The case of Kgosi Motlhabane: Kweneng Land Board v Matlho and Another

In this case, Kgosi (Chief) Motlhabane sold a piece of land, that he had inherited from his forefathers in Mogoditshane for 1,500 Pula¹⁹ to Mr Matlho. The kgosi had been in possession of this land through inheritance since 1960, prior to the introduction of the TLA. The sale, by verbal agreement, led to Mr Matlho making a partial payment of P500 and to his occupying the land. He began building a house whose construction had cost P15,000 by the time the case went to court. As this land was located in KD, KLB sought a High Court order in 1990 restraining Mr Matlho from occupying that land because it had been unlawfully acquired. This was because ownership of tribal land was vested in the land board under s. 10(1) of the TLA. As a result, Mr Matlho had no right to acquire, develop, or occupy the land without a certificate issued by the KLB.

For many people in Botswana who had inherited land going back for generations, this represented a break with tradition in its requirement that the incumbent should acquire a certificate from an external agency, such as the land board, to verify his or her possession and right to dispose of it. ²⁰ Thus the legal requirement was at odds with longstanding understandings of what was required to allow for transmission of the inheritance of land under the norms of customary law.

In this case, however, the kgosi, was able to turn to the Act and to argue that as the land had been in his possession before the introduction of the TLA, the terms of s.10(2), which state “nothing in this section [that is s. 10(1)] shall have the effect of vesting in a Land Board any land or right to water held by any person in his personal and private capacity” applied to him. The Attorney General, who appeared as an amicus curiae, suggested that some land could be granted in a “personal and private capacity” and noted that sales in agricultural and residential land had regularly been taking place among tribesmen²¹ for at least twenty years. He also argued that as land was available and free to all tribesmen, the rule that land could not be sold must have been aimed at sale to non-tribesmen. The High Court held in 1990²² that s.10(2) applied to Kgosi Motlhabane, with the result that the land at issue had not vested in KLB. As a result the land was owned and was the private property of Kgosi Motlhabane’s family. Mr Matlho had therefore legitimately acquired the land because such ownership included the right of the owner (Kgosi Motlhabane) to dispose of it as he saw fit.

In 1992 KLB went to the Court of Appeal on a point of law, that the court had erred in holding that s.10(2) acknowledged customary ownership of land acquired and possessed prior to the introduction of land boards, and in holding that an attribute of such ownership was the ability of the owner to sell land without the authorisation of the land board. The appeal was unsuccessful as the Court of Appeal upheld the High Court’s decision in a majority judgment put forward by two judges, with one judge dissenting.²³

The majority judgment observed what lay at the heart of their judicial disagreement reflected:

competing philosophies with regard to the character of customary law. On the one hand there is the view which stems from a conception of customary law as a developing body of law. Concomitant with this is a desire for the protection of private rights.²⁴

In contrast, another view” stems from a concept of customary law which makes it static in character, based on the foundation of “ancient origin”.²⁵

The majority rejected this later view because:

African customary law should apply to the changing situations of the people whose lives it regulates, it must have been and should be living law … Just as the English common law, as distinct from custom, has evolved with the development of the people, so must African customary law in the areas in which it governs in African societies develop to meet changing situations.²⁶

Both interpretations put forward by the court, however, were predicated on a particular notion of space and temporality that they ascribed to customary law. This was one that was linear in nature. The majority adopted an evolutionary approach whose trajectory was based on moving forward and displacing past prescriptions with current developments. The dissenting judge who took a different view, nonetheless, also adhered to a linear and temporal perception of customary law that remained firmly rooted in the past. Both approaches also adopted a singular perception of law, to the exclusion of other temporalities and perspectives on law.

5.1. Acknowledging other perspectives on customary land tenure

Both the interpretations of customary law put forward above derive from a colonial understanding of legal pluralism. This derived from a situation where colonial powers attempted to impose their legal traditions on local landholding by codifying African land tenure systems in terms of their own understandings of law that were prevalent at the end of the nineteenth century. What emerged from this process was a formulation of land tenure that, on one hand, was reduced to an emphasis on individual and private property rights, or on the other, one that was formulated on communal and communitarian forms of land ownership that were taken to represent customary law. Reduced to these components, the two forms of interpretation became juxtaposed against one another in an exclusionary manner, delineating their boundaries in ways that preclude other spaces of understanding from coming into being.

Yet the government of Botswana acknowledges that historically rights attached to customary land tenure were not homogenous and pre-determined, but depended on the purpose for which the land was allocated and the productive use to which it was put. Its status as residential (lolwapa), agricultural (tshimo), or grazing land (moraka) had an impact on the rights that accrued under it.²⁷ Although customary law did recognize individual rights to residential land as exclusive, permanent and inheritable, this concept of rights was not applicable to agricultural land, for once cultivated land was harvested, it reverted to the status of grazing land to which all members of the morafe (group) had communal rights.²⁸ Thus rights were acquired and divested according to a cyclical nature of time that coincided with agricultural practices over the seasons.

This approach to rights is predicated on a particular spatiotemporal composition that differs radically from those rights whose existence depends on a more exclusive and linear form of transmission. In recognizing the variegated nature of these rights under customary tenure, the government noted the difficulty in "finding the correct pigeon hole for its [customary land tenure] concepts".²⁹ It also stressed that "the absence of … private ownership in the customary land tenure does not imply insecurity of tenure".³⁰

The problem posed by Matlho was one involving transformation. As a judge in a later case observed

The plot upon which the first applicant’s residential dwelling is erected, along- side others which are similar, was once part of an undeveloped grazing or cultivated field (tshimo). During the course of the material time-frame, the field ceased to be pastoral and a homogeneous unit. Instead, the burgeoning urbanization that grew around Gaborone in the late 1980s (Mogoditshane in particular) resulted in pastoral lands losing their function as such and becoming "available" for human urban settlement lawfully and unlawfully. This tshimo was no exception. This judgment must be understood against that background. What was once a pastoral field has in a very short time become a subdivided urban residential village ward.³¹

This kind of peri-urban development has been observed elsewhere. Nahu (2019, 2) notes that “rural urban migration has contributed to commodification of land….as well as land use conflicts particularly in Central Africa”.

5.2. Government action post Court of Appeal decision in Matlho

After Matlho, the government stepped in and Parliament made amendments to the TLA in 1993. These included deleting Section 10(2), substituting "tribesmen in the area" in Section 10(1) with "citizens of Botswana" and also creating under a new Section 38 that that provided "any rights conferred upon any person in respect of any grant or lease of tribal land … shall not be transferred, whether by sale or otherwise to any other person without the consent of the Land Board concerned."³² A number of exceptions were provided for, including a devolutionary transfer on inheritance. However, these amendments did not apply to any claims raised before they came into effect because, following a Western temporality of law perspective, amendments to law cannot apply retrospectively. So, cases prior to 1993 continued to come before courts until the Court of Appeal decision in the case of Mpofu and Another v Kweneng Land Board in 2005.

5.3. Ongoing challenges: Mpofu and another v Kweneng land board³³

Subsequent to Mathlo, the applicant Mpofu applied to the High Court in 2000. This was to prevent KLB from demolishing her home in Mogoditshane that was built for P300,000³⁴ on part of what was once an undeveloped field. The land was donated to her by the second applicant in 1989 who had inherited it from her mother, who was allocated the land around 1910 by Kgosi Pule before land boards came into existence. KLB made a counter application to annul any customary rights that the transferor might have in the land, rendering the allocation to Mpofu unlawful. Mpofu had tried to regularize her occupation of the land by filing an application with KLB but they lost it and did not respond to the second application that she made in 1994. She heard nothing until May 2000 when she was called to the Mogoditshane sub-land board³⁵ to discuss her illegal occupation and building operations.

The High Court judge felt bound by precedent to follow the Court of Appeal decision in Matlho, rendering Mpofu’s occupation of the land lawful in a judgment issued in 2004.³⁶ But the judge expressed reservations, especially since Parliament had now repealed s.10(2). In his judgment he explained his reservations as follows:

The whole purpose of the [Tribal Land] Act was to vest tribal land in land boards. Botswana had become sovereign and independent in 1966, and the first Tribal Land Act was enacted into law two years later. I do not think anyone can doubt that the primary purpose of the Act was to blend together or sublimate the interests of tribal society in relation to tribal land with national interests in respect of such land. In essence the land boards stepped into the shoes of the chiefs but without disturbing the character of either tribal society or tribal law including tribal land heritage, occupancy, distribution and management. The fact that land boards became accountable in a vertical direction to a new civil administration has never, to my mind, meant that there was any abrogation of pre-existing tribal land law.³⁷

On appeal in 2005,³⁸ Mpofu was heard by a court of five, instead of the normal three judges. This was in order to deal with the issue of precedent binding judicial decision-making. The Court unanimously ruled the stare decisis rule³⁹ that operates in Botswana can be overturned where a later Court of Appeal “is satisfied that the earlier decision, and particularly the ratio decidendi⁴⁰ of it, was incorrect.”⁴¹ The Court held that the majority in Matlho erred in interpreting s.10(2) as creating a class of private ownership within customary law. In delivering the judgment, Tebbutt J. P. commented,

I have no doubt ….[that] whatever lay behind the object of the legislature in enacting [Section] 10(2), I cannot accept that it intended to create a class of private ownership within the customary law. It would fly in the face of all the tenets of customary law, which for all the authoritative text writers specifically excluded it.⁴²

As a result, the Appeal Court’s judgment⁴³ rendered Mpofu’s occupation of the land unlawful as the second respondent could not hold the land in her personal and private capacity, and so did not have the right to alienate it to Mpofu. However, the Court did acknowledge that the second respondent had inherited the land from her mother under customary law prior to the TLA of 1968 and ordered that occupancy of the plot should revert to her, but Mpofu had to vacate the plot within thirty days and KLB was empowered to demolish the residence on it.⁴⁴

6. The difficulties these rulings presented for citizens

These cases highlight the tensions arising from interpreting customary law in relation to land and the difficulties they present in a plural legal context. The crux of the difficulty seems to lie with firmly held conceptions of private versus communal notions of property that set them against one another, that lead to the kind of debates that the courts pursue.⁴⁵ As a consequence those associated with land under dispute in this way found themselves in problematic circumstances. I interviewed many local people who felt aggrieved at what had happened to them where land allocations were not recognized by KLB, leading some to being treated as squatters who in some cases found their properties subject to demolition. I cannot detail all their grievances so I will deal with Kgosi Motlhabane who featured in the Matlho case.

I interviewed Kgosi Motlhabane at the Nkoyaphiri Customary Court in Mogoditshane on 16th August 2010 where he was working for Tribal Administration. He showed me the land surrounding the kgotla where the court is situated that he inherited under customary law from his father and grandfather long before the TLA came into effect. He observed that in the case of KLB “there is a hell of a problem. People here [in Mogoditshane] wait 20 years to get allocated land”. As a result they reverted to the Chiefs who had power to allocated land in their area prior to the advent of the TLA. Kogosi Motlhabane observed that “When allocations are made by the land board they are on top of land that has [already] been allocated by the Chiefs. In such cases the land board can pay compensation to the occupants to leave but the compensation “is totally inadequate”.

Kgosi Motlhababe told me he went to the High Court because the land board disputed his allocation to Mr Matlho saying that “the land was theirs”. I argued that I inherited it from my father who inherited it from my grandfather [thereby giving him the right to allocate it]. The case went to the High Court and I won the case there. Then they [KLB] appealed to the Court of Appeal and still I won the case. However the land board have failed to provide him with the necessary certification although he has been waiting for this since 1994. As a result, on the way to his home he remarks “as you can see I’m still fetching water [in a big plastic yellow container on his bakkie]. There are no services where he lives because these cannot be provided until the land board issues him with a certificate. When we arrived at his homestead which has formed part of his family’s property for generations, he connects the yellow container to a diesel fuelled pump which pumps the water out and up to the reservoir at the top of a koppie from which water to the house can be accessed. He waves his arm around and says this is all that is left. “Where we are now, this is still part of my land. It belonged to my father and I inherited it from him”. When I interviewed him again on August 12th 2016 his position remained unchanged.

7. Overview and the problems created by peri-urban spaces

The Matlho and Mpofu cases highlight the rapid pace of change that the peri-urban area of Mogoditshane has undergone. Molebatsi (2004, 80) attributes this to the rapid rise in urbanisation as being “largely due to rural-urban migration, driven by the non-productivity of subsistence agriculture and a lack of viable livelihood strategies”. This has created a situation where land that earlier “met the definition of ‘peri-urban’ becomes ‘urban’, while rural land becomes peri-urban …where agricultural and non-agricultural uses compete for land” (Home 2004, 23). As with many such areas in and beyond Botswana this has come into being because “growth in such areas outstrips capacity of official agencies to map, record, monitor, and service and regulate them” (Home 2004, 23). Such is the case with Mogoditshane where central, district and local government institutions and administrative policies, along with the formal legal system, incorporating both state and tribal land, fail to keep pace with the need and expectations of their citizens for “between 1981 and 2001 Mogoditshane was one of the fastest peri-urban zones of any city in southern Africa” (Shabane, Nkambwe and Chanda 2011, 680). Peri-urban areas are important because they fill the existing gap by “providing services which the formal urban sectors fail to provide for significant numbers of the urban population, as well as affordable rental housing and opportunities for plot acquisition through unofficial transactions” (Molebatsi 2004, 81). This has given rise “to unauthorized subdivisions, use from masimo land to residential, unauthorised sales, and irregularities in TLB procedures” (Molebatsi 2004, 88), such that this has become “a major activity in Botswana’s peri-urban areas” (Molebatsi 2004, 88). These activities run counter to the requirements of the formal legal system. This has given rise to what Leitner, Novak and Sheppard (2023, 388) refer to as “everyday speculation” that is “not only financial but also socio-cultural” (391). For as Home and Lim (2004, 4) observe generally, “formal systems are played out in interactions with dynamic, shifting, informal cultures and structures, but also through the lives and strategies of individuals” (4) that make them “places of risk and opportunity” (Home 2004, 25). Consequently, the spatio-temporality that adheres to peri-urban spaces is subject to transformation in ways that require a rethink of state and customary law and an approach to legal pluralism that can take account of their more fluid and constitutive features. For these spaces represent “a complex and diverse intermingling of rural and urban livelihoods, economic activities, and land uses” that involve “a multiplicity of actors” (Leitner, Novak and Sheppard 2023, 389).

While much has been made of such areas attracting the poor (Shabane, Nkambwe and Chanda 2011, 671), the two cases presented here involve claimants who had substantial resources, as evidenced by the amount of money spent on their plots and the fact that they could afford formal legal actions against KLB that are expensive. This is by no means an unusual phenomenon. Mbatha and Ngcoya (2019, 2) report on a township in South Africa where” wealthier residents are acquiring land in an unprecedented fashion…where new imposing stylish homes can be seen along some of the roads”. In Botswana it has long been acknowledged that elites “have taken advantage in the laws governing land, especially tribal land, to amass and privatize chunks of land” (Manatsha and Morapedi 2021, 63). What is at stake here is the power that people can exercise to pursue their interests in land and not all are equally situated in this endeavour.

However, many residents in Mogoditshane feel powerless to participate in this pursuit. For while numbers of them have been on waiting lists for land there for years, they have observed others coming long after them jumping the queue. They perceive of KLB as being slow to act and biased in their dealings, if not corrupt. The 1992 Report of the Presidential Inquiry into Land Problems in Mogoditshane and Other Peri-Urban Areas (Botswana 1992a) highlighted serious allegations that were leveled at KLB’s staff at that time, (none of whom were serving on KLB when I carried out my research) including criminal activities in relation to land. Two government ministers were also alleged to have engaged in illegal land transactions (Lekorwe 2005). As a result, it is hardly surprising that local people engaged in self-help, exercising “traditional ingenuity” in employing their own methods of transferring and selling land (Botswana 1992a, 16). The situation was so dire the government had to set up a Commission of Inquiry in 1991 that gave rise to the Government White Paper No. 1 (Botswana 1992b) that recommended occupiers of land in the area who did not have land certificates issued by KLB and who had substantial buildings on it should pay a fine of BWP 5,000. Once paid, those occupiers could then acquire legal property rights and an official land certificate from the land board. This solution, however, proved to be unworkable because such occupants lined up to pay their fines providing security of tenure, knowing that their illegal acts were now sanctioned. This created great unrest amongst those who had legally acquired their land, whose plots were much smaller than those regularized by squatters who had benefitted from this administrative solution. This situation prompted President Ian Khama, to issue Presidential Directive (No. CAB 28(b)/2000) in order to prevent a complete breakdown in law and order. It adopted a more hard-line pursuing the eviction of illegal occupiers of land as well as the demolition of buildings on it.

Since then the numbers on waiting lists for land in Mogoditshane and other areas have skyrocketed (Manatsha and Morapedi 2021, 64). This prompted the former president, Ian Khama (2008–2018), to announce a controversial system for quotas that would require land boards to apply a preferential approach to locals seeking land in their area. This would be based on place of origin or tribal affiliation. Although this proposal was rejected by Parliament and the final draft of the national land policy (Botswana 2015), President Khama invoked his executive powers in late 2015 to have it implemented. His proposal, however, was not sanctioned by the legislature and as Manatsha and Morapedi (2021, 63) observe, it “is inconsistent with the Tribal Land Act and the Constitution of Botswana and undermines Botswana’s Vision 2016”.

8. Closing observations on legal pluralism relating to land

The Matlho and Mpofu disputes highlight how prioritising some legal orders over others creates dilemmas and opportunities for contestation. They demonstrate the need to engage with legal pluralism that involves the concept of space and time that trace the interactive dynamics at play that reveal the complex matrix within which territorial, political, economic and social relations to land are constituted. Utilising the concepts of space and time opens up the way in which we perceive land and law, not as bounded entities cut off from one another, but as mutually constitutive domains involving flexible and dynamic processes of change. This paper makes clear that peri-urban land is not a space that is clearly demarcated from urban or rural land in practice, while the legal dimensions of land’s regulation, far from following the formal and fixed distinctions between state and customary law, display a more complex and nuanced relationship between the two. This is evidenced by citizens’ perspectives and approaches to the norms governing the legal regulation of land in Mogoditshane, and judges attempts to grapple with the extent to which individual property rights found in the state system may apply to customary law, in their attempts to accommodate processes of transformation that are apparent in the two court cases that are discussed.

Such a perspective allows for a more meaningful understanding of what law entails, one that does not just rely on one interpretive frame, but that covers the multiple dimensions that may exist co-terminously. For this approach to legal pluralism makes visible the multi-faceted aspects of law in which its varying dimensions are embedded. In doing so this depiction of law in relation to land highlights the ways in which actors seek to reinvent or revitalize the legal landscape by restructuring the legal spaces to which they have access. This provides a more informed understanding of the transformations that are taking place that are “constituted by-and in turn constitutive of-complex, normatively charged, and often competing visions of social and political life under law" (Blomley 1994, xi). It is these multiple connections, involving legal plurality, that this article has explored here in order to present a picture of continuity and transformation of the use, access to, and control over land over many years, in a peri-urban area such as Mogoditshane, with all the challenges and dilemmas that this entails.

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 (1997).

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 (2009, 20) and Ansah and Chigbu (2020).

14 Accessed December 27, 2022. https://unhabitat/org./botswana.

15 See also Kleeman et al (2017) on Mali and Nuhu (2019) 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 1992a, 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 (2007, 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 (1992).