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Gender and Land Rights Database

Botswana

Rights entrenched in the Constitution

The Constitution of 1966, amended in 1987, 1992, 1997, 2005 and 2006 (16):

  • Article 3 states that “Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest to each and all of the following, namely - 
    (a) life, liberty, security of the person and the protection of the law;
    (b) freedom of conscience, of expression and of assembly and association; and
    (c) protection for the privacy of his home and other property and from deprivation of property without compensation”.
  • Article 8 provides that no property shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied: 
    (a) the taking of possession or acquisition is necessary or expedient—
    i. in the interests of defence, public safety, public order, public morality, public health, town and country planning or land settlement;
    ii. in order to secure the development or utilization of that, or other, property for a purpose beneficial to the community; 
    iii. in order to secure the development or utilization of the mineral resources of the country;
    (b) provision is made by a law applicable to that taking of possession or acquisition—
    i. for the prompt payment of adequate compensation; and
    ii. securing to any person having an interest in or right over the property a right of access to the High Court, either direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining prompt payment of that compensation.
  • Under Section 15(1), no law shall make any provision that is discriminatory either of itself or in its effect.
  • Section 15(2) states that no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
  • Section 15(4) provides that Subsection (1) shall not apply to any law so far as that law makes provision [c] with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law; and [d] for the application in the case of members of a particular race, community or tribe of customary law (17).

Women's property and use rights in personal laws

The Married Persons Property Act of 1971:

  • It provides intending couples a choice to marry under out of community of property or in community of property or under customary law.  
  • Under out of community of property, properties belong entirely to the spouse in whose name they are registered to the exclusion of the other partner (18). Women are recognized as adults and retain full legal ownership rights (19).
  • Under the in community of property regime, properties acquired by either partner belong to both parties in equal but undivided shares but under the administration of the husband (18). Women are permitted to own immovable property in their own names and neither spouse can dispose of joint property without the consent of the other (19).

In 2001, the government changed the marriage law and increased the legal age of marriage to 18 for both sexes, conditional on parental consent; without parental consent, the legal age is 21. Previously, girls could be married with parental consent at the age of 14 (19).

The Employment Act of 1982:

  • Article 23 states that “Notwithstanding anything contained in a contract of employment, an employer shall not terminate the contract of employment on the ground of [d] the employee’s race, tribe, place of origin, national extraction, social origin, marital status, political opinions, sex, colour or creed” (20).

Inheritance legal mechanisms

Both common and traditional laws grant children the right to inheritance from their parents (19).

Land Legislation

The Tribal Land Act of 1968, overhauled in 1993:

  • A Land Board is established for any tribe listed in the First Schedule as a body corporate, as per Sections 3 and 9. 
  • Section 10 states that all rights and title to land in each tribal area listed in the Schedule shall vest in the Land Board.
  • Part II concerns the Land Boards making grants, variations and determinations of customary forms of land tenure. 
  • The powers of a board are outlined in Section 13. 
  • Appeals against decisions of a board may be had with the Minister, according to Section 14. 
  • Section 15 outlines the grounds on which a customary right may be cancelled. The Land Board shall issue certificates of grant of rights. 
  • Granting of rights in land notified to be for grazing is restricted under Section 17. 
  • Grazing land may be set aside for commonage under Section 18. 
  • Section 19 states that the President may create subordinate Land Boards. 
  • Section 20 provides for the establishment of a Land Board Service Commission, which shall inspect land board offices. Land shall be granted only to tribesmen, unless there is an exemption from the Minister.
  • Provisions of Part IV shall apply in relation to the Land Boards making grants, variations and determinations of common law forms of land tenure. 
  • Section 23 provides for a lease on a monthly basis. 
  • Section 32 concerns compulsory acquisition of land by the State of lands vested in a Land Board for public purposes.
  • A Commission of Inquiry is set up under Section 35 if there is disagreement between a Land Board and the Minister.
  • Section 33 concerns compensation in the form of a right to land to holders of customary rights in lands which are acquired by the State under Section 32. Every Land Board shall establish a fund (21).
  • In the 1993 overhaul, the words “tribesman” and “tribesmen” were replaced with “citizen/citizens of Botswana”. 
  • The Act does not spell out gender rights for married, unmarried, single, divorced or cohabiting women and their siblings (18).

The State Land Act of 1966:

  • Section 2 defines state land as unalienated state land and reacquired state land and includes any land outside of the country where ownership is vested in the Republic.
  • Under Section 3, the President may make and execute grants or other dispositions of any state land or of any interest therein.
  • Section 4(1) states that the powers conferred upon the President may be exercised on behalf of the President by any person so authorized by the President by notice published in the Gazette .
  • Section 10 provides that no contract for the sale or other disposition of any state land or of any interest in any state land shall be of any force or effect unless it is in writing and the agreement of the President is signified under the hand of the President or such person (21).

The Deeds Registry Act of 1996:

  • Sub-sections 18(3) and (4) provide that neither spouse, whether married in community of property or not, may alone deal with the Registrar of Deeds without the written consent of his/her partner. 
  • Sub-sections 18(1) and (2) require women to disclose their marital status and husbands’ full names while the same is not required of men (10).

Policies/Institutional mechanisms enforcing or preventing women’s land rights

- The Ministry of Agriculture initiated the development of the Agricultural Sector Gender Policy Framework in 2003 to address the needs of different groups – men, women and youth – so that they could effectively participate in agriculture.
The overall goal of the Framework is to promote gender equality and equity in all agricultural development processes to ensure the creation of employment, reduction of poverty and achievement of household and national food security. This Framework was approved at the ministerial level in July 2007 as a guiding document for all processes and procedures in the agricultural sector (11).

- Recently, all agricultural extension regions have received assistance to establish Regional Gender Committees, which include representatives from all departments and parastatal organizations available in the regions. The purpose of these committees is to assist in cascading the gender mainstreaming concept and to facilitate information flow from the headquarters to the regional/district offices and the farming communities and vice versa (11).

- A number of policies, programmes and projects are being reviewed and strengthened to ensure equal participation of women and men. For example, the recently developed schemes, like ALDEP III, require that female beneficiaries make a down payment of 20 percent while their male counterparts pay 30 percent of the total loan.
There is also a provision, in the Young Farmer’s Fund, for applicants to lease land in cases where they do not own land (11).

- The Department of Women Affairs promotes the enhancement of the status of women, geared towards their improvement and full integration into the national development process. Its main objectives are to:
i. enhance the status and role of women in decision-making and leadership at all levels;
ii. promote access to and control of factors of production and to remove all forms of legal and sociocultural constraints to women's participation across all sectors of development;
iii. promote health, especially reproductive health and rights, including family planning;
iv. enhance the education of women and girls; 
v. eliminate the growing poverty among women, particularly female-headed households;
vi. create awareness of gender issues at all levels (22).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography