Gender and Land Rights Database


Prevailing systems of land tenure

- There are three categories of land tenure: tribal/communal land; state land; and freehold land.
These three categories were inherited from the British rule except that they were then called native land, crown land and freehold land respectively. Most of the people were and still are resident on customary land (24). Customary land was administered under customary law by the Chiefs of the respective areas. Land was allocated free and each family was entitled to land for residential purposes, livestock grazing and arable farming. The families were given exclusive rights to residential and arable land and these rights were secure, inheritable and transferable. The customary land rights did not lapse with time. Grazing land was used communally by those who had livestock. The farmers were allowed to drill boreholes or open wells and had exclusive rights to such developments only. Grazing areas were also used for other customary purposes such as cutting grass and collecting wood and wild fruits. Portions of crown land were hived out to create freehold farms that were granted to individual settlers (24).

Tribal land is either held by the Land Board itself or by eligible applicants as customary grants or common law grants of leases (12). All Botswana are entitled to part of tribal/communal land but they do not acquire exclusive or perpetual individual rights to it. However, ownership of a borehole provides de facto rights to the water and surrounding grazing areas. Also, 50-year leases have been introduced on part of the tribal land that has been zoned for commercial use (8).

> State land is reserved for national parks, game reserves, wildlife management areas, towns and cities (8). State land is administered according to the State Land Act by the central government and local government councils (14).

Freehold land entitles the owner to perpetual and exclusive rights to the land (8).

- In 2003, tribal land comprised 70.9 percent of the land area – i.e. 411 349 ha; freehold was 4.2 percent – i.e. 24 572 ha – and state land was 24.9 percent – i.e. 144 588 ha (12).

- Customary grants are available only to citizens and only for a period of up to 50 years (24). These grants are for residential and ploughing purposes (14). The rights are not transferable and property is not capable of being encumbered.
On application to the Land Board, a customary grant may be converted to a common law grant of lease (24).
- Common law grants of lease are also referred to as agreements of grant of lease. They are made by the Land Board with the consent of the Minister of Local Government and Lands. Such a grant is not valid without the Minister’s consent (24). They are for non-customary land use – i.e. residential, commercial and industrial – and are limited in time and subject to eventual reversion to the community.  They can be registered under the Deeds Registry Act and are mortgageable and therefore transferable without the Land Board’s consent (14).
They are granted for periods of time between 15 and 99 years and once they are registered in the Deeds Registry, mortgage bonds may be registered in order to secure loans (24).

National and local institutions enforcing land regulations

The Land Tribunal hears appeals against the decisions of the Land Boards. It also helps with enforcing the decisions of the Land Boards.
The Tribunal is currently determining appeals on matters affecting customary land only (23).

Land administration institutions and women quotas

The Land Boards were created by the Tribal Land Act of 1968 and started functioning in 1970.
The Act transferred powers previously vested in the chiefs to the Land Boards (13). Each Land Board has a specific area of jurisdiction and, subject to the approval of the Ministry of Local Government and Lands, it has rights to allocate land to citizens and non-citizens (24).
At present, there are 12 main and 38 subordinate Land Boards. The area of jurisdiction of each Land Board follows the boundaries of the tribal territories (23).
Their duties and responsibilities include: i. allocating land; ii. imposing restrictions on the use of land; iii. cancelling land rights; iv. authorizing change of land use and transfer of land rights; and v. hearing land disputes and appeals.
They allocate land for residential areas, industrial areas, commercial areas, civic and community areas, arable fields, commercial livestock and game ranches, commercial arable farms, tourist camps and lodges and hunting and photographic concession areas (23).

Funding provisions to guarantee women’s land transactions

The Women’s Finance House was founded in 1989 to assist low-income women entrepreneurs by providing credit, savings and training services to enable them to participate in economic activities of the country (15).

Other factors influencing gender differentiated land rights

- Some of the main factors constraining women from owning and controlling land include: (a) unmarried women younger than 21 years of age have to obtain the consent of their parents in all property transactions; (b) women who marry become minors unless they explicitly marry under out of community of property Dutch law; and (c) most women lack the assets, capital or labour to use the land productively (26).

- Women married in community of property are permitted to own immovable property in their own names; however, their husbands still retain considerable control over jointly-held assets of the marriage. Moreover, the law also stipulates that neither spouse can dispose of joint property without the written consent of the other party. Women increasingly exercised the right to marriage out of common property, in which case they retained their full legal rights as adults (6).

- Since most women do not own land and other resources, like cattle and boreholes, it is difficult for them to obtain such resources through purchase. This is because they lack capital and also do not have security to provide as collateral with the banks and other financial lending institutions to access credit and other support services (11).

- In farming communities, farming associations are mostly dominated by men. Women do not make any major decisions or even respond to any agricultural surveys in the absence of their male counterparts, who are the decision-makers. The expectation of agricultural extension is also that a male should answer and make decisions (11).

- Recently, there has been an increase in gender-based violence cases, including rape, murder and sexual harassment on females, in farm lands which are detached from service centres and, in some cases, in very remote areas that have limited infrastructure such as telecommunications, roads, police services and electricity. Furthermore, the households are sparsely distributed in these areas. This alienates females from practising ranching and other agricultural activities (11).

- The agricultural sector is dominated by men and few women occupy decision-making posts. As of 2006, the Ministry of Agriculture staff included 2 001 women, or 27 percent, and 5 478 men, or 73 percent. Furthermore, women comprised only 11 percent of the people in decision-making levels and men accounted for 89 percent (11).

- Women belonging to minority ethnic groups are further marginalized. This affects particularly the Basarwa, who live in remote locations where access to education, public services, employment and land is extremely limited.
A number of non-governmental organizations have made efforts to promote the rights of indigenous people; however, the programmes have had limited impact (6).

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