Reflections on the Acquisition of Land by Non-citizens in Botswana

Abstract

There are rising public concerns about the acquisition of prime land by non-citizens/foreigners in Botswana, especially in the sprawling urban and peri-urban areas. Indians, Nigerians and Chinese, among others, are allegedly involved in such land transactions. There is a salient local resentment towards them and/or such transactions. Sensational media reports, emotive public statements by politicians, chiefs and government officials, and anger from ordinary citizens dominate the discourse. These emotive public debates about this issue warrant some academic comment. This article argues that the acquisition of land by foreigners in Botswana, in each land category—tribal, state and freehold—is legally allowed by the relevant laws. But this does not mean that citizens have no right to raise concerns and/or show their disapproval of some of these legal provisions. Aware of the public outcry, the government has since passed the Land Policy in 2015, revised in 2019, and amended the Tribal Land Act in 2018, not yet operational, to try and strictly regulate the acquisition of land by non-citizens. There is no readily available statistical data, indicating the ownership of land by foreigners in each land category. This issue is multifaceted and needs to be cautiously handled, lest it breeds xenophobia or the anti-foreigner sentiments.

Keywords

Botswana non-citizens citizens land acquisitions land law xenophobia

Introduction

There is a consensus among scholars and observers that land is a fundamental resource of the nation state, and it is vital to nation-building (Elden, 2010; Harberson, 1973; Hodgson et al., 1999; Sakeus, 2019). Others also argue that land, as a unique and vital resource, “has always been given special consideration in legal systems throughout the world” (Campbell & Tenzer, 1980, p. 2). For instance, the emergence of the modern state, following the Treaty of Westphalia in 1648 (Wimmer & Feistein, 2010), resulted in other people, who were not citizens, classified as “foreigners” or “aliens.” Their status/classification meant that they had no (full) legal rights to own and use land (Hodgson et al. 1999, p. 1). Such restrictions have continued, albeit with variations, in many jurisdictions, as this article shows. It focuses on access to or the acquisition of land by non-citizens in post-colonial Botswana.

Campbell and Tenzer (1980, p. 2) argue that the discussion on the acquisition or ownership of land by foreigners/aliens dates back to the Middle Ages, where the issue became central in both the Civil and Common Law systems. Fast-forward, access to or ownership of land by foreigners was a fundamental aspect of the colonial land policies throughout the world (Kepe & Hall, 2018). In fact, colonialism was mainly a grand scheme to acquire land and natural resources by the colonisers. The British, for instance, regarded India as “The Jewel in the Crown” because of its strategic location and land resources (Nechtman, 2008). In the 21st century, the discussions on access to land by foreigners dominate national and international discourse in various ways and platforms (Hall, 2011; Murmis & Murmis, 2012). In some jurisdictions, especially in Southern Africa, the land question has become politically volatile and socially disruptive (Jankielsohn & Duvenhage, 2017; Kepe & Hall, 2018). These debates about land indicate that its management is critical in the attainment of socio-economic development, political stability and national security of any country. These are reflected in the (national) land policies and land Acts of many states.

Botswana was a British Protectorate from 1885 to 1966. Thus, colonial land expropriation was not widespread as it was the case in the settler colonies of Southern Rhodesia (Zimbabwe), South Africa and Namibia. In the latter, the land question was the root cause of the liberation struggles against the White minority settlers (Alden & Anseeuw, 2009). This is not to say that Botswana had zero land expropriation during the colonial era. Some pockets of lands were expropriated, without compensation, by colonial syndicates, foreign individuals and churches from the indigenous people (Ng’ong’ola, 1992b). Using the “willing buyer, willing seller” policy, the government of Botswana has been purchasing freehold land, mainly farmland, from non-citizens, including absentee landlords, for redistribution to the landless citizens (Manatsha, 2019b). Since 2000, the year which President Robert Mugabe of Zimbabwe (1980–2017) embarked on the seizure of White-owned land for redistribution to the landless Blacks, citizens of Botswana have also been questioning land ownership by foreigners, which include absentee landlords and former colonial syndicates, such as the Tati Company (Manatsha, 2019b).

For more than a decade now, there have been growing public concerns about the acquisition of prime land by non-citizens in Botswana, especially in the sprawling urban and peri-urban areas, and tourist resorts (Piet, 2010). It is critical to note that it was difficult for the author to get the statistical data in relation to the amount of land owned by foreigners in each land category in Botswana: tribal, state and freehold land. Ng’ong’ola (2017) contends that the extent to which foreigners own land in Botswana has never been quantitatively established. This is a result of poor record-keeping. Land data are not consolidated and readily accessible. Different institutions manage land in Botswana, and this complicates the matter even more. The government of Botswana admits these challenges and shortcomings in the 2015 Land Policy, which pronounces, in Section 81 (i), that “The Ministry responsible for land management will establish a Land Information Centre”, and (iii) “The land information systems will be interlinked for easy access by customers, stakeholders and managers/administrators” (Republic of Botswana, 2015, pp. 21–22). Corruption and mismanagement contribute to the lack of readily available information on land in Botswana (Botswana Daily News, 2015; Manatsha, 2019a).

Even if so, senior government officials, politicians, dikgosi (chiefs/traditional authorities) and ordinary citizens use every opportunity to condemn the ownership of and access to land by foreigners in Botswana (Bagwasi, 2015; Piet, 2010; Regonamanye, 2015; Republic of Botswana, 2009, p. 16, 2010, pp. 150–154; Sunday Standard, 2015, October, 18). It is a serious concern that newspapers and public debates seem to insinuate that non-citizens exclusively acquire land illegally (Bagwasi, 2010; Piet, 2010; Sunday Standard, 2015). This article dispels this. Moreover, the tone in which the situation is presented in the public discourse, mainly in the media, resonates with the debate on “land-grabbing” or “land rush” elsewhere in Africa by international actors (Hall, 2011, pp. 194–195; Holmen, 2015, pp. 459–466). This article contends that, as in other parts of Africa and the world, Botswana’s laws allow non-citizens to acquire land, albeit with some limitations. It also argues that the rising public concerns, as elsewhere in Africa and beyond, have forced the Government of Botswana to introduce legislative measures to strictly regulate access to and ownership of land by foreign nationals. In 2010, a Botswana senior government official decried that:

Chinese, Indians, Nigerians and Zimbabweans are busy buying residential, commercial and even ploughing fields from Batswana who are enticed by the huge sums of money offered. They later [re]sell the plots for hefty sums making [huge] profits after they have made some developments […] The syndicates involve [local] lawyers who are involved in tricking Batswana into believing that they are protected by the law. (Piet, 2010)

Citizens’ resentment towards non-citizens often reflects “an extension of the conflict generated by the distribution of (or access to) social services among citizens” (Campbell, 2003, p. 78). The mineral-rich Botswana, for instance, grapples with widespread socio-economic inequalities. In 2009, its Gini-coefficient was 0.635, while poverty rate was 20 percent. In 2012, the unemployment rate was 18 percent (Okatch, 2015, pp. 1–3). In such glaring inequalities, competition over resources, including land, becomes fierce, divisive and potentially volatile. Worldwide, since the 1980s, the growing inequalities have seen the increasing “obsession with belonging and the questioning of conventional/assumptions about nationality and citizenship” (Nyamnjoh, 2002, p. 755). In Botswana, for instance, access to, and control of, land has pitted citizens against non-citizens and citizens against each other as this article shows.

The famous court victory by the Basarwa/San in the Central Kgalagadi Game Reserve against the Government of Botswana over their land rights demonstrated the insecurity of customary land tenure or indigenous land rights. Between 2010 and 2015, Batswana (citizens of Botswana) in the land-starved peri-urban areas demanded a land quota system to favour them when allocating tribal land, mainly residential plots. The National Assembly had rejected this in 2013, 2014 and 2015 on the basis that “preferential treatment” was against the spirit of the Tribal Land Act (TLA) and the Constitution of Botswana (Republic of Botswana, 2013a, b, 2014a, 2015). In Botswana, access to tribal land is determined by citizenship, not tribal affiliation. Botswana is faced with the challenges of land shortage in the peri-urban areas. President Ian Khama (2008–2018) supported the land quota system as a “quick-fix” approach. He used his executive powers, bestowed on him by the Constitution, to impose it in late 2015 (Republic of Botswana, 2018a). When debating the land quota system, most Batswana in the peri-urban areas lamented that “outsiders,” referring to other Batswana, mainly from the north, flock into their villages to acquire land at the expense of them as the “owners of the land” (Pheage, 2014; Republic of Botswana, 2013c).

This article was prompted by the intense public debate on the acquisition of land by non-citizens in Botswana, a debate which cuts across the political and social divide. For instance, Members of Parliament (MPs) from the ruling party, the Botswana Democratic Party (BDP), in power since 1966, and the opposition have made several calls to the government to pass laws that will prohibit and/or strictly regulate the acquisition of land by non-citizens. In a nutshell, the article’s key focus is on the public debate and the legal provisions which permit non-citizens to own land in Botswana. Therefore, the absence of statistical data, on the amount of land held by foreigners in Botswana, does not compromise its central thesis. It relies on secondary literature in the form of books, journal articles, legal documents and newspaper articles.

A Southern African Context

After attaining independence, Africa’s new political leaders replaced, repealed or adapted indigenous and imposed foreign land laws to suit their political ideologies and social realities. Many of these new leaders, especially those who subscribed to the Marxist–Leninist ideology, nationalised all the land. Some abolished customary land tenure and introduced privatisation, while others opted for long-term leases (Kalabamu, 2011, p. 118; Ng’ong’ola, 1992b). Nonetheless, African countries constantly revise or amend their land policies to respond to the changing local, regional and global dynamics, especially the socio-economic and political realities. For instance, the increasing ownership of or access to land by non-citizens, especially in the context of the “land rush” (Hall, 2011) or “land grabbing” (Holmen, 2015) by international actors, necessitate policy revisions. This helps to understand some policy shifts in many Southern African countries.

In Tanzania, for instance, the National Land Policy states, explicitly, that “Non-Citizens shall not be granted land unless it is for investment purposes under the Investment Promotion Act” (The United Republic of Tanzania, 1997, Section 4.2.4 (iii)). The same Act, in Section 4.2.4 (iv), reiterates that “Non-Citizens and foreign companies will not be allowed to acquire land through transfer or purchase of customary land.” This principle is also found in Mozambique’s Land Law No. 19 of 1997, which states, that “Foreign individuals and corporate persons may be holders of the right of land use and benefit, provided that they have an investment project that is duly approved...” (Republic of Mozambique, 1997, Chapter III, Article II). The Lesotho Land Act of 2010 also states that foreign enterprises can only hold title to land for investment purposes (Republic of Lesotho, 2010, Section 6(1)(c)). In Malawi, the transfer of private land, by sale or tender, is prohibited unless the intention to sell “has been published in a newspaper in daily circulation in Malawi not less than twenty-one days before the date of sale…” (Republic of Malawi, 2016, Section 38 (i)). In the event of selling, the priority is given to a Malawian citizen. In February 2015, former President Jacob Zuma of South Africa, pronounced, during his State of the Nation Address (SONA), that the government will introduce the Land Holdings Bill to restrict the ownership of agricultural land by foreigners (Corke, 2015). This was never implemented owing to policy shift on land reform in South Africa. Thus, due to incessant pressure from the radical Economic Freedom Fighters (EFF), the ruling African National Congress (ANC) now favours the compulsory acquisition of land without compensation (Kepe & Hall, 2018). In Namibia, pressure groups, such as the Affirmative Repositioning Movement, want parliament to enact a law that will prohibit “foreign nationals from owning land in Namibia” (Sakeus, 2019). Some politicians, including those in the ruling party, favour this. In Botswana too, as this article reveals, many call for the introduction of similar stricter laws.

Land Tenure Administration in Post-Colonial Botswana

In 1966, the Government of Botswana retained the colonial land tenure system: freehold land, tribal land and state land (former crown land). It considered land as “the very base on which the nation stands” (Republic of Botswana, 2015, p. 9). It, therefore, took a firm political decision to control land and mineral resources. This section discusses, albeit briefly, each land tenure system.

Tribal Land

Upon assuming political power in 1966, the BDP-led government introduced progressive legislative and institutional reforms to guide the management of tribal land. One of the key legislative interventions was to curtail the powers of the chiefs over tribal land matters. Thus, the traditional authorities’/chiefs’ role in tribal land administration was replaced by the statutory Land Boards, created in 1970. Their formation was preceded by the TLA, enacted in 1968 and amended in 1994. The system is not perfect, but it has prevented conflicts associated with tribal land ownership, a common feature in Africa. In 2013, tribal land constituted 71 percent of all the land in Botswana from 49 percent in 1966 (Republic of Botswana, 2015, p. 2). The holders of tribal land are granted a certificate of customary land rights, which confers “user rights” not full ownership. The Act prohibits “exclusive” ownership of land by tribes (merafe) by stating that:

All the rights and title to land in each tribal area […] shall vest in the land board […] for the benefit and advantage of the citizens of Botswana and for the purpose of promoting the economic and social development of all the peoples of Botswana. (Republic of Botswana, 1994, Section 10 (1))

Before independence, each tribe enjoyed “exclusive” rights over its tribal land. In 1966, the government considered this as regressive and anti-development (Masire, 2006, p. 185), especially in the context of nation-building. Botswana’s second President, Ketumile Masire (1980–1998), admits that it was difficult to convince the chiefs and Batswana that the TLA and Land Boards were necessary (Masire, 2006, p. 184). Botswana’s third President, Festus Mogae (1998–2008), contends that “the chiefs had over time become too dictatorial, conservative, and resistant to progressive changes on land” (Mogae, 2013, p. 5). Quite forcefully, the TLA states that:

All the powers previously vested in a Chief and a subordinate land authority under customary law in relation to land […] shall vest in and be performed by a land board acting in accordance with powers conferred on it by or under this Act. (Republic of Botswana, 1994, Section 13 (1))

The main functions of the Land Boards are (a) the granting of rights to use any land, (b) cancellation of the grant of any rights to use any land, (c) imposition of restrictions on the use of tribal land, (d) authorising any change of use of tribal land and (e) authorising any transfer of tribal land (Republic of Botswana, 1994, TLA Section 13 (1)). Before the TLA was amended in 1994, tribal land allocation, in each tribal territory, was mainly based on tribal affiliation, as noted. The amendment replaced the word “tribesmen” with the phrase “citizens of Botswana” to ensure inclusivity. Since then, eligible Batswana, as per the TLA, can acquire tribal land anywhere in the country, without being restricted by their tribal origins. Some Batswana were apprehensive of the amendment of the TLA because they “thought of availability of land for their children, not just themselves” (Masire, 2006, p. 185). As much as the holders of tribal land enjoy “user rights,” Section 32 of the TLA empowers the president to sanction the acquisition of any tribal land in the public interest, and “adequate” compensation is granted, as provided for in Section 33 of the same Act. There are complaints about low compensation and the “arbitrary” manner in which the state, sometimes, acquires tribal land for public good or interest (Manatsha, 2019a).

Freehold Land

In Botswana, a freehold title, which basically means the privatisation or individualisation of land, is a foreign concept, which was brought by the British during the colonial era. Using freehold titles, the colonisers expropriated land from the indigenous people without compensation. In 2013, freehold land constituted 3 percent of all the land in Botswana, down from 5 percent in 1966 (Republic of Botswana, 2015, p. 2). It is mainly held, occupied and administered “in conformity with common law notions and conceptions,” introduced by colonial rule (Ng’ong’ola, 1992a, p. 140). This land is mainly regulated by the Deeds Registry Act and the Land Control Act (Ng’ong’ola, 2017, p. 115; Republic of Botswana, 1986, 2015, Section 55 (ii)). A freehold title confers unlimited rights to land, and it is inheritable, transferable, registrable and readily hypothecated. The Government of Botswana always purchases freehold land to augment tribal land in the land-starved districts, such as the North-East and South East. These two districts had chunks of their land expropriated by the Tati Concessions and the British South Africa Company, respectively, during the colonial era. After independence, freehold titles became “the commonest individual interest on land in the urban centres,” and in Gaborone, the capital city, they were “seen as an incentive to assist with the rapid development of the new capital” (Frimpong, 1993, pp. 391–392). Freehold land is the only type of land that “individuals and companies can own in perpetuity. This makes it the most valuable and sought after type of land” (Ng’ong’ola, 2017, p. 115).

State Land

State land is former Crown land. In 1966, it became state land after the enactment of the State Land Act. In 2013, state land constituted 26 percent of all the land in Botswana, down from 46 percent in 1966 (Republic of Botswana, 2015, p. 2). This is because some districts were created from state land by converting state land into tribal land. The State Land Act of 1966 vested state land on the president (Republic of Botswana, 1966), who has since “delegated” his powers to the minister heading the Ministry of Land. The management and allocation of state land falls under this Ministry, but the land allocated for residential plots under the government-funded Self-Help Housing Agency scheme, targeting low-income class, is the responsibility of the City/Town Councils. State land also comprises forest land, national parks, game reserves and the land acquired by the state outside Botswana, and non-freehold land in urban areas (Republic of Botswana, 2015).

State land is also held by citizens and non-citizens and citizen-owned and non-citizen-owned companies as leaseholds under the Fixed Period State Grant (FPSG). The FPSG concept was pioneered in Selibe-Phikwe Township in the 1960s, and it extended to other urban areas in 1972. “Under a freehold grant the state permanently alienates its interest in the state land to a private individual” (Frimpong, 1993, p. 393), but this is not the case with the FPSG. In 1985, the FPSG became the standard grant in urban areas after the state stopped the conversion of state land and tribal land into freehold land. FPSG leases run for “50 years for commercial and industrial concessions, and 99 years for residential purposes” (Frimpong, 1993, p. 392). Only citizens are eligible for the direct allocation of residential land under the FPSG (Republic of Botswana, 2015, p. 10). The FPSG “can be alienated and inherited,” but it cannot be transferred “for a period exceeding the remaining period of the grant” (Frimpong, 1993, p. 392). The transfer is only allowed if the development covenant of the grant had been complied with. Botswana’s 2015 Land Policy states that “The terms and conditions under which state land is granted will include a provision for renewal at the end of the FPSG” (Republic of Botswana, Section 55 (ii)).

Reflections on the Acquisition of Land by Non-citizens in Botswana

Botswana’s rapid economic growth in the 1980s, due to diamond and copper–nickel mining, led to rapid urbanisation. This attracted foreigners, especially skilled and semi-skilled expatriates and business people. This also attracted many people from Botswana’s rural areas to the sprawling urban centres. As a result, there were housing problems and land shortage in the urban and peri-urban areas. Citizens and non-citizens increasingly became involved in illegal land dealings to circumvent the housing problem. Extremely worried “about lawlessness in land transactions in the Mogoditshane area,” a high-density village adjacent to Gaborone, President Masire instituted The Presidential Commission of Inquiry into Land Problems in Mogoditshane and Other Peri-Urban Villages, the Kgabo Commission, on July 25, 1991. Its primary objective was to investigate the illegalities involving tribal land in these areas and recommend remedies (Republic of Botswana, 1991).

During the public hearings, some villagers in Mogoditshane told the Kgabo Commission that the situation in their village “has shocked the nation.” After completing its task, the Commission had “managed to identify 841 plots, which have been illegally acquired,” but it believed “that the actual figure [was] higher.” The situation was so bad such that even those who had been illegally “allocating” land “were not sure of how many plots they had allocated” (Republic of Botswana, 1991, pp. v–vii). The situation was utter lawlessness. Over 90 percent of ploughing fields were subdivided and “converted to residential use without the authority of the Land Board” (Republic of Botswana, 1991, p. 20). The acquirers were “tribesmen and non-tribesmen, citizens and some non-citizens” (Ng’ong’ola, 1992a, p. 161).This evidently shows that non-citizens had also taken advantage of the loopholes in the TLA and acquired tribal land, a phenomenon which was not common in Botswana. In most cases, foreigners were associated with freehold and state land.

Before the amendment of the TLA in 1994, tribal land was mainly allocated on tribal affiliation as noted. The Kgabo Commission found that some tribesmen used this to illegally sell land to non-tribesmen and non-citizens alike. Another serious legal loophole was that the deleted Section 10 (2) of the 1968 TLA was vague, in that it seemed to recognise that certain lands and water rights were held in private capacity before the formation of the Land Boards in 1970. The High Court of Botswana had confirmed this in the case of Kabelo Matlho and Another versus the Mogoditshane Land Board (Ng’ong’ola, 1997, pp. 17–18). Due to this legal absurdity, some tribesmen, mainly in Mogoditshane, subdivided their ploughing fields and sold plots to willing buyers. In a swift and decisive political intervention to stop this, the National Assembly stepped in and amended the TLA by deleting Section 10 (2). It also added the punitive Section 39, which imposes, “hefty penalties for unauthorised land dealings and other transgression” (Ng’ong’ola, 1997, p. 18). The Kgabo Commission made broad recommendations to decisively deal with the ensuing lawlessness. It settled for recommendation “A,” which urged the government to:

[…] repossess all the land […] that was acquired without lawful authority in the affected areas and the present holders should be reimbursed expenses actually incurred for improvements that are immovably attached to the land. All affected people must produce proof […] of the expense incurred. (Republic of Botswana, 1991, pp. 75–76)

Recommendation “B” (3), on the plots illegally held by non-citizens, reads thus:

[…] all illegal plots, developed and undeveloped, held by non-citizens be forfeited to the Land Board. Non-citizens should, in keeping with the principle of unjust enrichment, be reimbursed expenses actually incurred for improvements that are immovably attached to the land. (Republic of Botswana, 1991, p. 79)

After examining mitigating factors, such as acute housing problems and the government’s failure to timely avail serviced land, and that a harsh punishment would have left over 4,000 citizens homeless, the president decided to pardon all citizens. All citizens, who had illegally developed land, were instructed to immediately pay a mandatory fine of BWP 5,000 each, and then regularise (Republic of Botswana, 1992). All undeveloped plots reverted to the state. Non-citizens were required to forfeit all the illegally acquired plots (developed or undeveloped) (Republic of Botswana, 1992). Non-citizens do not qualify for customary grants without the minister’s consent. In this case, they illegally acquired the land. Non-citizens qualify for common law grants under Section 24 of the TLA, but this was not considered, in order to regularise their illegal landholdings (Ng’ong’ola, 1992a, p. 164) because this would have set a bad precedent.

In the 2000s, Botswana was hit by yet another shocking land scandal, this time involving state land allocations in Gaborone. This showed that there was gross mismanagement of land in the country. For instance, citizens and non-citizens, and citizen-owned and non-citizen-owned companies were involved. President Mogae swiftly responded, like his predecessor, by instituting The Judicial Commission of Inquiry into State Land Allocations in Gaborone, hereafter the Lesetedi Commission, on April 19, 2004. Its main objective was “to investigate certain land allocations within Gaborone” (Republic of Botswana, 2004). Like the Kgabo Commission, it held public hearings and received oral and written submissions. In some cases, the Commission found that civic and community land was allocated to non-citizens, despite that this land was/is “reserved for allocation only to citizens and companies with citizen majority held shareholding” (Republic of Botswana, 2004, p. xi). In 2009, President Khama complained about Batswana’s tendency of selling their land to non-citizens: “We have observed that citizens acquire land and fail to develop it for the purpose for which it was allocated and, with the passage of time, often sell it to non-citizens” (Republic of Botswana, 2009, p. 16). In 2010, a Botswana senior government official warned that a syndicate, comprising Indians, Chinese, Nigerians and Zimbabweans,

go around carrying huge sums of cash [and buy land on] the spot. They buy that plot for [BW]P100,000 [about US$10,000] for example, and within a month or two they [re]sell it for [BW]P2 million to other members of their syndicates from abroad. All they do is put a few structures and the price goes up immediately. This is going to disadvantage Batswana and very soon all our land will be in foreign hands. (Piet, 2010)

Land-related motions, bills and policies tabled before Botswana’s National Assembly between 2003 and 2018, such as the Tati Company land motion in 2003; land policy drafts of 2011, 2013, 2014 and 2015; the land audit motions in 2013 and 2014; the land quota motion in 2013; the Tribal Land Bill in 2017; and the TLA No.1 of 2018, were explicitly and or tacitly aimed at strictly regulating or even barring non-citizens from acquiring land, mainly tribal land and state land (Botswana Daily News, 2003, August 5; Manatsha, 2011, 2019a; Republic of Botswana, 2011, 2013a; 2013b; 2013c, 2014a, 2014b, 2015, 2017, 2018a, 2018b). In August 2003, Robert Molefhabangwe, a former Botswana National Front (BNF) MP for Gaborone North, tabled a controversial motion, requesting the government to repossess the land owned by the Tati Company, former Tati Concessions and absentee landlords in the North-East District (NED). This district was once described as a “colony within a protectorate” because of the massive expropriation of land by the Tati Concessions during the colonial era, in the 1880s (Manatsha, 2011, 2019b). The land belonged to Africans, who tried to get it back to no avail. In 1911, the British colonial administration unjustly granted “The Tati Concessions, its successors and assigns […] the full, free and undisturbed [rights] as owners of all the land within the Tati District” (Tati Concessions Land Act, 1911, Section 2). The Tati Company still owns chunks of freehold land in this district amidst landlessness. Absentee landlords, who acquired the land from the company, are protected by the same Act. The motion, which sought to compulsorily acquire this land, was defeated because the BDP MPs voted against it, arguing that this would violate the rule of law. The government admits that some absentee landlords are not known, save that most are/were of European descent (Manatsha, 2011, pp. 74–76). In the 1960s and 1970s, the Botswana Peoples Party had tabled similar motions, but the BDP had always insisted that the Constitution protects private property rights (Botswana Daily News, 2003, August 5; Manatsha, 2011). This means that non-citizens, who acquired the land during the colonial era and whose identities are a mystery, are still protected by the Constitution. When the British departed, they made sure that they include the clause, which protects private property rights, especially land, for their kith and kin.

In 2012, the Botswana Congress Party (BCP) leader, Dumelang Saleshando, deferred his motion, which sought to request the “government to carry out a land audit” because the substantive Minister of Lands was absent (Republic of Botswana, 2012, p. 131). He said that this would establish who owns what and where. This motion was tacitly targeting the local elites and foreign citizens. In 2013, the government introduced the Land Administration Procedures Capacity and Systems (LAPCAS) to register all landholdings, and the process is still ongoing. However, the opposition parties argue that LAPCAS is not the solution to Botswana’s land problems, and it suggests a comprehensive land audit. In March 2013, an independent MP, Odirile Motlhale, tabled a motion in the National Assembly requesting the “government to consider reserving a quota for locals of any land administrative area” when allocating tribal land, especially residential plots (Republic of Botswana, 2013a, p. 344). The motion was rejected, as noted.

In August 2014, Saleshando finally tabled his land audit motion, which sought to “establish [the] factors that led to demand outstripping supply in most urban centres as well as establish land ownership patterns in the country” (Republic of Botswana, 2014a). It was defeated because of the BDP’s numerical strength, not on its substance. Botsalo Ntuane, a BDP MP, strongly supported the motion and also called on the government to pass stringent laws prohibiting foreigners from owning land. Ntuane remarked that: “I know of no Motswana who owns land in China, India or Nigeria. At the very least, limit the number of plots a foreigner can own in the country” (Moeng, 2013). In some parts of Gaborone, it is known that certain foreign nationals are involved in the buying of land, building of houses and reselling. Ntuane’s views were pursued by Kgosi/Chief Mmirwa Malema when debating the Tribal Land Bill in 2017 as shown below.

In July 2015, the National Assembly approved the Land Policy, following years of consultations and vacillation. When debating this policy in April 2015, Gaborone South MP, Kagiso Molatlhegi, decried that foreigners buy land from citizens cheaply, develop it and then rent out apartments or resell houses to citizens exorbitantly. He lamented that in Block 8 in Gaborone, “Batswana no longer own land as it has been bought by the Nigerians and Indians” (Regonamanye, 2015). He insisted that the land policy “should be clear about […] foreigners. They should hire and rent not […] own land and homes […] They have their land and homes in their original countries” (Regonamanye, 2015). The said policy is briefly discussed in this article. The then Minister of Lands, Prince Maele, objected saying that this would violate the TLA. Nonetheless, on August 7, 2017, Maele presented the Tribal Land Bill in the National Assembly and revealed that the “loss of land rights to non-citizens” partly led to the review of the TLA, although this new Act is not yet operational (Manatsha, 2019a; Republic of Botswana, 2017).

Before the Tribal Land Bill was endorsed by the National Assembly, it was taken to Ntlo ya Dikgosi for the chiefs’ input. The chiefs also lamented the loss of land rights to non-citizens. Kgosi Mmirwa Malema, for instance, called on the government to limit the number of plots an individual can acquire through the market. Kgosi Maruje III lamented that “Batswana are literally killing themselves; Batswana have become their worst enemies” (Bagwasi, 2015). Nonetheless, Minister Maele argued that what Kgosi Malema suggested would violate the TLA and the Constitution. Interestingly, in October 2015, Minister Maele informed the nation that:

We have deliberately made it stringent for Batswana to sell their land to foreigners. Foreigners are going to have hard times buying land from Batswana as the new [2015] land policy encourages them [Batswana] to give fellow Batswana priority should they find need to sell their land. (Sunday Standard, 2015, October, 18)

In late March 2017, Minister Maele addressed Batlokwa at their kgotla (a village gathering place) in Tlokweng about the land crisis and water issues in their village. Tlokweng is a peri-urban village adjacent to Gaborone. He told them that 54,331 applicants were on the waiting list for tribal land allocation in Tlokweng alone, but only 600 plots were available. Maele decried that some Batlokwa continue selling their tribal land to non-citizens and citizens alike. In 2016, 387 residential, 252 agricultural, 5 commercial and 1 industrial plot were sold in Tlokweng alone (Bothoko, 2017; Mokwena, 2017). The minister did not specifically inform his audience on the number of foreigners involved, but he made some remark directed to non-citizens:

What worries me the most is that you [Batlokwa] have the tendency of selling plots to the people that we cannot pronounce their names. If it was Batswana buying those plots it could be better even though we do not encourage the selling of plots. (Bothoko, 2017)

The Law and the Acquisition of Land by Non-Citizens in Botswana

As elsewhere in Africa, the acquisition of land by non-citizens in Botswana has aroused controversies. For instance, ordinary citizens, chiefs, politicians and the government agree that the acquisition of land, especially tribal and state land, by non-citizens should be strictly regulated or even prohibited. These debates mainly centre on the identity of these foreigners and how they acquire(d) land in Botswana. The manner in which such views are expressed can incite xenophobia. For instance, the Chinese, Indians and Nigerians always top the list whenever the issue is discussed publicly or in print (Piet, 2010). Having noted this, this section looks at the provisions in law/policies that allow non-citizens to acquire land in each land tenure category in Botswana: tribal, state and freehold. Despite the resentment, it notes that foreigners are legally permitted to own land in Botswana, although some find “illegal” ways of acquiring it.

The Acquisition of Tribal Land by Non-citizens

Generally, Batswana view the acquisition of tribal land by non-citizens as “unlawful” (Manatsha, 2019a). They do not anticipate the okaying of the acquisition of tribal land by foreigners, more so that the core spirit of the TLA is to protect citizens’ interests in tribal land as stated in its Section 10 (1). This section resonates well with the nation-building project adopted since independence. Since the amendment of the TLA in 1994, the allocation of tribal land is based on citizenship, not tribal affiliation. This is expressed in Section 10 (1). This section is clear, in that tribal land is for the benefit of all citizens of Botswana for the advancement of their socio-economic development. Whenever it mentions non-citizens, it is secondary. Nonetheless, non-citizens can legally acquire tribal land as per some sections of the TLA as shown later. This is at odds with the core spirit of the TLA as stated in Section 10 (1). Thus, Batswana are generally unhappy about this (Moeng, 2013; Piet, 2010; Regonamanye, 2015; Republic of Botswana, 2010).

Sections 24 (2) and 31 (1) and (2) of the TLA empower a Land Board to grant or lease tribal land to non-citizens under common law, provided there is the minister’s written consent. Section 24 (1) states that “A land board may not grant land under this section to a person who is not a citizen of Botswana without the consent in writing of the Minister.” Section 31 (1) also states that:

No land may be leased or granted to any person under the provisions of this part for agricultural or horticultural purposes except to a tribesman [citizen] or to the Government of Botswana except with the prior consent of the Minister.

Section 31 (1) states the conditions under which the leasing of “agricultural or horticultural land” to non-citizens can occur. Section 31 (2) says that “No land may be leased or granted to any person other than a [citizen] by a land board except in accordance with the provisions of this Part.” Frimpong (1993, p. 389) argues that “For residential purposes it is mainly non-citizens residing in those areas who have benefited from lease grants” under tribal land. Lease grants are for residential and commercial purposes. Section 23 (1) conditionally states that “A land board may lease to any person an area of land, not exceeding five acres in extent.” This section puts restriction on the amount of land that can be leased, while this is not the case with Section 24 (1). All these sections address the direct leasing and granting of tribal land to non-citizens by a Land Board, not secondary acquisitions of land. Thus, the transfers and interest in tribal land, which also involve non-citizens, are covered under Section 38 of the TLA. Section 38 (1) explains that:

The rights conferred upon any person in respect of any grant or lease of any tribal land [...] shall not be transferred, whether by sale or otherwise, to any other person without the consent of the land board concerned:

Provided that the provisions of this subsection shall not apply in the case of the following:

land which has been developed to the satisfaction of the land board concerned;

a sale in execution to a citizen of Botswana;

a hypothecation by a citizen of Botswana; or

the devolution of such land on inheritance.

Using Section 38 (1) (i), non-citizens can lawfully acquire developed plots under tribal land tenure. Section 38 (1) (iv) also allows non-citizens to acquire tribal land through inheritance. Section 38 (2) also states that tribal land or rights to such land can only be registered by the Registrar of Deeds provided it is supported by a valid lease and one of the above conditions applies. Legally, Section 38, in its entirety, does not prohibit the transfer of developed tribal land to a non-citizen. In a nutshell, Sections 24, 31 and 38 do not prohibit the acquisition of tribal land by a non-citizen. There is no law or policy, which prohibits secondary dealings in tribal land by non-citizens. This is, however, at odds with the core spirit of Section 10 (1) of the Act. Non-citizens’ rights to land are also protected under freehold land tenure. It, thus, seems needless to have non-citizens’ rights to land also enforced under the TLA.

Section 38 allows non-citizens and citizens to acquire as much land as they can. The TLA has no limit on the transfers one can make. This means that those with money can buy as much land they can. This, in the process, leads to land concentration in the hands of a few. In Mozambique and Tanzania, the sale or purchase of customary land by non-citizens is prohibited. Botswana’s 2015 Land Policy does not also limit the amount of land one can acquire through the market (Republic of Botswana, 2015, p. 12). These undermine the strict regulation of the acquisition of tribal land by non-citizens, and hence the public outcry. It is also absurd that citizens’ disposal of tribal land to non-citizens by leasing or private treaty does not require consent from a Land Board. Yet, when the disposal is by way of sale in execution, the consent is required. What does this legal mishap intend to achieve because both processes result in tribal land being acquired by non-citizens? “Whether in respect of Tribal land or State land, restrictions on further alienations of undeveloped land have proved exceedingly difficult to enforce,” notes Ng’ong’ola (2017, p. 120). In view of these, it is understandable that citizens are angry about the acquisition of tribal land by non-citizens. Thus, it is in this context that we should understand the public outcry.

The Acquisition of State Land by Non-Citizens

In 1985, the government phased out freehold titles on-state land in urban areas and replaced them with the FPSGs. Freehold grants were cancelled to avoid the “possibility of much of the township lands being controlled by a few rich individuals and some foreigners” (Frimpong, 1993, p. 393). Non-citizens can acquire state land through the FPSG. Leases for commercial purposes run for 50 years. As for the 99-year leases for residential purposes, non-citizens can only acquire them through secondary land dealings with citizens, and this is happening (Republic of Botswana, 2015, p. 3). In the National Assembly, there has been repeated mentioning of foreign citizens owning state land in some parts of Gaborone. In Blocks 7 and 8, for instance, some low-income citizens, originally from Old Naledi, a squatter settlement in the outskirt of Gaborone, were allocated residential plots there in the 2000s. Some of these individuals alienated their FPSG titles to the willing buyers, including non-citizens. Some non-citizens developed the land and resold houses to citizens (Regonamanye, 2015). In the tourist hubs in the north and north-west, a substantial number of non-citizens hold leases for tourism businesses. Ordinary Batswana and politicians always complain about the domination of the tourism industry by non-citizens.

The Acquisition of Freehold Land by Non-citizens

A freehold title grants land in perpetuity, and it is regulated by the Deeds Registry Act and the Land Control Act. Non-citizens acquire freehold land for various purposes, such as agricultural, business and residential. Wealthy suburbs near Gaborone, such as Phakalane, Mmokolodi and Gaborone North, and also around Francistown, are preferred by wealthy non-citizens. The Tati Company in Francistown still holds a freehold title to chunks of land in and around Francistown. Armed with a freehold title and the Constitution of Botswana, which guarantees the “protection from deprivation of property,” non-citizens’ land rights are protected. Section 3 of the Land Control Act regulates the transfer of freehold agricultural land to non-citizens. The minister’s consent is required in transactions involving non-citizens (Republic of Botswana, 1986). Nonetheless, “The proposed sale must be advertised to inform citizens and the transactions can only be concluded if no citizens have shown interest” (Republic of Botswana, 2011, p. 3). In short, non-citizens have unlimited rights to land under freehold titles, as elsewhere in the world.

The Tightening of Land Laws Against Non-citizens?

Ng’ong’ola (2017, p. 120) argues that “Legal and other devices are involved to circumvent the law and policy. One such device, approved by the Courts, is the granting of an option, exercisable upon completion of the required developments” [as per Section 38 (1) (i) of the TLA]. Concerned about the weaknesses and loopholes in the laws and policies regulating the acquisition of land by non-citizens, the government has since introduced measures to address this. This section comments on the 2015 Land Policy, and the amended TLA No.1 of 2018, not yet operational.

The 2015 Land Policy

This policy has been a subject of academic inquiry, and there is no need to reinvent the wheel (Isaacs & Manatsha, 2016; Ng’ong’ola, 2017). It, however, suffices to state that, among others, its objective is to “Encourage citizens’ retention of rights to land” (Republic of Botswana, 2015, p. 9). To achieve this, it states, among others, that:

a person will not be allowed to alienate their last residential plot acquired directly from the land authority and

the alienation of any land will give preference to citizens, and any alienation to non-citizens will be subject to advertisement of notice of intention to alienate. (Republic of Botswana, 2015, p. 17)

This seems like an exercise in futility since these pronouncements are not legally supported by the operational (1994) TLA. However, Section 34 of the TLA of 2018 talks about prioritising citizens when Batswana alienate their land rights. The condition stated in (i) above is not even legal because the operational TLA, Section 38, and even the 2018 one, has nothing of this sort. In fact, the 2015 Land Policy was revised in October 2019. Upon realising the unconstitutionality of provision (i) earlier, the National Assembly decided to delete the whole Section 69 (iv) of the 2015 Land Policy (Republic of Botswana, 2019). The state has no legal authority to refuse an individual to transfer his/her property even if it is the only one he/she has, provided the transaction fulfils the conditions listed in Section 38 of the TLA. Citizens have the right to own and depose their properties, and this is enshrined in the Constitution. By deleting Section 69 (iv) in the 2015 Land Policy, non-citizens will continue acquiring developed tribal land as before. In any case, the policy pronouncement would not have prevented it because a policy is lesser than an Act. The National Assembly failed to legally manoeuvre around the secondary acquisition of land by non-citizens. As noted earlier, in Mozambique and Tanzania, the transfer of customary land by sale or purchase to non-citizens is prohibited by law. When the two countries attained independence, they nationalised all the land unlike Botswana, which adopted a mild approach.

Tribal Land Act No. 1 of 2018

This Act is not yet operational although the National Assembly approved it in 2017. It was assented to by the president in February 2018, but it “shall come into operation on such a date as the Minister may, by Order published in the Gazette, appoint” (Republic of Botswana, 2018b, Section (1)). It is not clear why the minister has not done so. Yet, the Minister of Lands hailed this Act as a robust legislation, which was partly prompted by the rising loss of citizens’ land rights to non-citizens (Manatsha, 2019a; Republic of Botswana, 2017). In his view, Batswana are protected from self-inflicted deprivation since many willingly engage in secondary land dealings with non-citizens. Land sharks, which include non-citizens, use legal loopholes, as noted. Specifically addressing secondary dealings in tribal land, Section 34 (1) of the 2018 TLA states that “Any person who proposes to enter into transaction […]with a non-citizen shall, not less than 30 days prior to the proposed date of such transaction, publish a notice in the Gazette and in at least one newspaper circulating in Botswana…”

The notice shall, among others, give (a) description of the land, (b) full names of the parties to the proposed transaction, (c) details of the proposed transaction and (e) “a reference to the right of any citizen of Botswana interested in entering into a similar transaction in respect of the property in question to receive priority notwithstanding the proposed transaction set out in the notice” (Section 34 (1)). This provision is also found in the Malawi Land Act, as argued. The provisions under Section 34 (1) of the Botswana’s 2018 TLA shall not apply when a non-citizen acquires land through inheritance or when the land is “transferred to a non-citizen in execution of a court order resulting from divorce proceedings” (Section 34 (2) (a) (b)). Section 40 imposes a fine of not exceeding BWP 50,000 (about US$5,000) or a prison term not exceeding 5 years, or both, if any person knowingly gives false information in relation to land application under this Act. This may address (illegal) dealings in tribal land, mainly in the peri-urban areas.

Conclusion, Recommendations and Future Research

This article has argued that there is a public outcry about the acquisition of land by non-citizens in Botswana, especially tribal and state land. It has noted that the absence of readily available statistical data makes it difficult to gauge the magnitude of the problem. This, however, does not mean that the public concerns should be downplayed. Land is an emotive topic in post-colonial Africa, and governments ought to take such concerns quite seriously. In Botswana, the secondary dealings in tribal land, although legal in principle, as per Section 38 of the TLA, negates the core spirit of the TLA as expressed in its Section 10 (1). Fundamentally, the TLA argues that land is a key asset in nation-building. It, therefore, confuses ordinary citizens when foreigners are allowed to legally own tribal land, for instance. Foreigners can also access land under the state and freehold land categories. That there is no limit on the number of plots one can acquire through the market is also problematic. In such a scenario, there would be land concentration in the hands of the few rich and politically connected citizens and non-citizens. Eventually, this may cause serious land conflicts. It is also worrying that Batswana seem to attach little economic value on land.

This article suggests that the government should implement the TLA of 2018 as soon as possible. This Act may address some of the issues discussed in this article. For instance, the 2015 Land Policy and its amended version of 2019 contradict the operational TLA. The 2018 TLA addresses some of the issues raised in the two policies. There should be alignment of land policies. The government should also embark on the process of consolidating statistical data on land ownership by non-citizens in each land category. It is not clear if LAPCAS would yield that. Finally, multidisciplinary studies, which would look at the issue of non-citizens’ acquisition of land in Botswana, are recommended. To start with, a quantitative study on this issue is needed. It would be difficult for the government to intervene when it has no concrete data on this issue. Thus, this article provides some direction in which future researches should focus on.

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

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