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Division "Agriculture, Fisheries and Food" Page 1
Integration of customary and
modern land tenure systems
Communal Land Boards in Botswana
and Namibia
Tanja Pickardt and Johanna Dienst
Annual World Bank Conference on Land and Poverty April 18th – 20th , 2011
Washington D.C.
Division "Agriculture, Fisheries and Food" Page 2
Structure
1. Introduction and Relevance
2. Botswana2.1 History of Land Structure
2.2 The Land Board Approach
2.3 Constraints and Opportunities
3. Namibia3.1 History of Land Structure
3.2 The Communal Land Board Approach
3.3 Constraints and Opportunities
4. Conclusion and issues for policy consideration
Division "Agriculture, Fisheries and Food" Page 3
Introduction and Relevance
„Customary land tenure has
been adjudged anathema to
development.
Colonial and post-colonial land
law policy in Malawi favoured
individual title in pursuit of a
‚capitalist„ economy.
Customary land tenure was
suppressed and was not
allowed to flourish and evolve.“
(Silungwe 2005)
„This view is changing. Although
there are disadvantages for some
people, customary tenures provide
low-cost access to land for most of
the rural population. Farmers have
long-term and secure usufruct
rights, and in many places,
customary tenures are evolving to
accommodate new technologies
and formal land markets, at costs
lower than state-run land titling
and registration systems.”
(UN 2003)
Land = primary resource of economy
Double structure for land allocation and parallel system of authorities
creates legal uncertainty (esp. regarding Land Grabbing!)
Division "Agriculture, Fisheries and Food" Page 4
Customary law Statutory law
Design • Unwritten customary law • Written modern law
Administration • Traditional leaders • Governmental
administration
Occupation • Active occupation
• Communal use right
• Seasonally different
• Application for title deeds
• Lease certificates
Availability • Family, lineage, clan • Citizenship
Rights • Exclusive residents rights
• Seasonally rights on arable land
• Communal use of natural resources
• Freehold
• Leasehold
• Private property
Transfer • Not alienable
• Customary inheritance rights
• Ability to sell, rent
• Inherit, renew by law
Security • Mind of chief
• Cannot be used as collateral for
loans
• Secure if continuously cultivated
• Registered title deed,
certificate
• Collateral for a credit,
mortgage
Dual co-existence
Division "Agriculture, Fisheries and Food" Page 5
2. Botswana
• 1966 Independence from Great Britain
• Diamond mines discovered
– Helped to establish well-furnished social infrastructure
– State treasury is sustainably administered
• Liberal parliamentary democracy, good governance
• Ethnic groups:
– Tswana = defining culture, cattle owners
– San = minority group, hunter-gatherers
• 2/3 of the population engaged in agriculture, stock-
breeding
Division "Agriculture, Fisheries and Food" Page 7
2.1 The Land Board Approach
• Tribal Land Act (TLA) 1968: Land Boards
Transfer the role of land authority away from the
chief to a statutory body
• TLA governs access, use and disposal of 71% of
land in Botswana
Customary grants
Common law leasehold
• Tribal Grazing Land Policy 1975: Fencing for
leasehold to secure common good
Means to commercialise/ privatise common
resources
Displace people, deny access to land and water
Division "Agriculture, Fisheries and Food" Page 8
2.2 Land Boards
• Divided into 12 Land Boards and 37 subordinate
Land Boards
• 5 members elected
• 5 members appointed by MLH
• Professional positions
• Generate own income through lease fees
• Advice from ex-officio
Source: http://de.wikipedia.org/wiki/Botsuana
Division "Agriculture, Fisheries and Food" Page 9
Composition and links of Land Board
Land Board• Land Board
Secretary
• Land Board
ChairmanChief
District
Council
5 members elected
from the
Kgosi
District
Planning
Unit
Ministry of
Land and
Housing
A
p
p
o
i
n
t
5 members,
appointed by MLH
5 members,
elected by residents and
Tribal administraionCommunity
Elect
Division "Agriculture, Fisheries and Food" Page 10
2.3 Constraints and Opportunities
• Not entirely democratic, locally accountableDo not represent the
need of users
• Grants made before 1970 are not registered
• Ethnical discrimination, unrecognised TAs
• Not immune against bribery
• Proper regulatory framework
• Sustainable institutionGenerates income
Full-time professionals
• Effective infrastructureBuildings
Vehicles
Mapping equipment
Division "Agriculture, Fisheries and Food" Page 11
3. Namibia
• Typical settler colony
Displacement and exploitation under Germany (1884-1915)
Structural apartheid regime under South Africa (1920-1990)
Tribal Homelands
Indirect rule
• 1990 Independence from South Africa
52% of the territory was in the hand of white farmers
1991 National Land Reform Conference
Realignment of society
Ethnic collective demands, Resettlements
Create equity and efficiency
Address colonial injustice
Division "Agriculture, Fisheries and Food" Page 12
3.1 History of Land Structure
• 1991: „transfer some land from those with too much of it
to the landless people“ (NLRC 1991)
Communal farmland (43%)
Freehold tenure (44%)
State land (13%)
• Communal Land Reform Act 2002
CLB in cooperation with traditional authorities
Retain powers of chiefs
Division "Agriculture, Fisheries and Food" Page 14
Communal Land Boards: Functions and challenges
Challenges:
Seriously delayed in processing applications for certificates and leases
Three-year term in-acceptable for efficient functioning
Insufficient technical, logistical and organizational assistance by GoN
Extended training needs in legal interpretation and advice, conflict mediation, role of traditional authorities
Functions:
• Control allocation and cancellation of Customary Land Rights by Chiefs and
Traditional Authorities
• Decide on new applications, transfer and cancellation of Rights of Leasehold
• Create and maintain a register where all land allocations, transfers and
cancellations are recorded (to avoid double allocation)
• Dispute resolution
• Advise the Minister on regulations and actions needed to meet the
objectives of the Act, report on the activities to the Ministry in an annual
report
Division "Agriculture, Fisheries and Food" Page 15
Composition and linkage of CLB
Communal
Land Board
Member of
organized farming
community
Officer of
regional
council
2 women engaged
in farming activities
2 women with
expert
knowledge
Representative of
conservancy
CHIEF
Representative of
each recognized TA
Regional
Council
MLR
Division "Agriculture, Fisheries and Food" Page 17
Botswana Namibia
Representation and
Members
• Appointed and elected
members
• No representation of chief
• Independent bodies
• Office, infrastructure
• No-civil service
• Follows Tswana culture,
minority groups neglected
• Appointed members
• Representatives from
different groups
• Representative of chief
• Broad representation of
stakeholders
Application and
Granting of
customary rights
• Handled by Land Board • Goes to Chief/ traditional
authority, checked by CLB
Payment of members • Monthly salary for Land
Board members,
• Performance contracts
• Full-time positions
• Sitting allowances, transport
for CLB members
• No full time jobs, leave of
absence
Funding of Land
Board
• Own income through
leases + national budget
• Own income (marginal)
through leases + national
budget
Division "Agriculture, Fisheries and Food" Page 18
Botswana Namibia
Impacts on land • Land speculation • Increased land competition
• Prevent land grabbing by
locals (?)
Impacts on
population
• Legal security,
• Capital investment,
income
• Privatisation
• Eligibility to serve as a
collateral, (micro)-credits
• Not much influence yet,
feeling of legal security
• Not (yet) bancable
Relationship to
central government
• Funding MLH
• Own sources of revenue
• Rental fees, business
plots, conservancies
• Not governmental body, but
government-funded
• Other ministries and
stakeholders present
Relationship to
traditional authorities
• TA are more assistants to
Land Boards, than
decision-makers
• Problem of unrecognised
authorities
• Complementary institution,
• Remain two institutions,
• clear understanding of roles
and competencies
• Problem of unrecognized
Traditional Authorities
Division "Agriculture, Fisheries and Food" Page 19
3.3 Constraints and Opportunities
Double structure remains with regard to unauthorized Traditional authorities
Namibia: Double structure remains (communal vs. commercial areas)
Not professionally staffed, underfinanced
Use of common resources (pasture) remains unsolved
Role of TA in land allocation process remains, combination of customary and modern law
Legal security for customary land rights
Leasehold avoids commercial exploitation of commonage
Land must be used, investment: speculation is banned
Requires all existing rights to be registered
Division "Agriculture, Fisheries and Food" Page 20
4. Closing remarks and issues for
policy consideration
The establishment of Land Boards provide structures to
combine traditional and modern land tenure systems and
creates institutional possibilities for both.
It should be considered, that an integration of customary
systems in the statutory systems happens only on communal
land and not nationwide, a double structure of land
administration customary land rights in one part and
commercial activity in other parts of the country) is the
consequence.
How to represent the interests of neglected minority groups /
unrecognized TAs?
Weaken or retain the institution of traditional authority? Enlarge
their spheres of decision?