What is wrong with the landboard system?
Correspondent | Friday October 25, 2013 15:49
Tribal land comprises about 71% of the national land area, state land makes up 25% of our land and freehold the remainder of just over 4 percent. Consequently, tribal land is a major national resource.
Prior to 1970, the chiefs administered all tribal land in Botswana in the traditional manner, following the norms and rules of customary law. In 1968, the government enacted the Tribal Land Act, which transferred the chiefs' powers over tribal land to landboards, statutory bodies whose members were mostly nominated by the Minister responsible for land matters. The purpose of the change was stated at the time to be to enable the modernisation of rural land tenure and to democratise (and make more accountable) rural land administration. The Act came into force in 1970.
The Tribal Land Act transferred all the powers vested in a Chief under customary law in relation to land to the landboards. These powers included:
* the granting of rights to use any land for any purpose,
* the cancellation of any right to use any land (including grants made by the Chief before the Act came into force),
* the hearing of appeals from the decisions of subordinate land authorities,
* the settlement of disputes between right-holders, and
* the imposition of restrictions on the use of tribal land.
The Act introduced the principle of leases under common law for commercial uses of tribal land, e.g. trading stores and other businesses, fenced commercial ranches etc. There have been a number of amendments to the Act since it came into force. The most important were those introduced in 1993 which abolished the notion of tribesmanship and provided that all citizens have equal rights to access tribal land throughout the country.
This change has not been universally welcomed. While popular amongst the elite because it has empowered them to acquire tribal land throughout the country, particularly in peri-urban areas where it is very valuable, it has been strongly opposed by those who formerly had tribesmanship in those same peri-urban areas.
The reason is that they see rich people from rural areas where land has a lower value competing with them for access to valuable land in their home areas, while their reciprocal right to access land in other rural areas is of little value to them. This change is also unpopular amongst some elements in the rural communities, who see their land rights as being threatened by pressure from the urban elite wanting farms and smallholdings in the communal areas where they derive their livelihood.
Issues and problems
There have been mounting complaints for some years past of increasing corruption within the landboard system. The records of the Land Tribunals, the High Court and newspaper reports all show that corruption involving the administration and allocation of tribal land is now widespread throughout the system. Substantial tracts of communal land have been allocated as game farms and cattle ranches to both citizens and non-citizens in contravention of established procedure and, in some cases, of the Tribal Land Act itself.
There have been numerous instances of the unlawful sale of tribal land, mostly in the peri-urban areas for residential, industrial or intensified agricultural use. False certificates to 'legitimise' these parcels have been corruptly obtained from landboards or sub-land boards. Land over which rights are known to already exist has been allocated to others, often in return for a bribe. In some areas, landboard staff have 'allocated' themselves parcels of land, issued themselves false 'certificates' and then sold it on, often to non-citizens.
Landboard officials perpetrate most corruption in landboards and there is strong evidence that corruption networks in the system reach up to very high levels within the Ministry of Lands and Housing with links to the Office of the President. Relatively little corruption is actually perpetrated by board members, although they may know what is going on and connive at it. The reason for this state of affairs is that board members are almost powerless to control the boards while almost all power is concentrated in the hands of the board secretary and officials in the Ministry of Lands and Housing. Why this is so is discussed further below.
Associated with this high level of corruption is a widespread lack of competence, despite an enormous investment in training. Double allocations, rejection of applications for insufficient reason and long delays in attending to applications and disputes are commonplace and frequently aired in public meetings and in the press, as well as at the Land Tribunal and in the courts. It is noticeable that the proportion of technically qualified staff in the landboards is low in relation to administrative cadres.
Combined with the rising incidence of corruption, the frequency of incompetence and long administrative delays have led to a clear decline in public confidence in the system and a marked increase in the number of cases referred to the Land Tribunals and other courts. Both Land Tribunals and other courts are inundated with cases and are unable to dispose of them at a rate approaching that at which they are filed, so both have large backlogs of cases. The underlying causes of these issues are mainly problems of governance, institutional design and administrative procedure.
Governance issues
The primary governance problem is lack of accountability, particularly local political accountability. The administrative structure of the land board system is centralised, but it lacks effective controls, checks or balances from the centre on the activities of landboards on the ground. At the local level, residents (whether individually or as communities) and local institutions, such as the district councils or the Tribal Administration, have little or no power to influence the conduct by the landboards of their business.
Selection of board members and staff
The only qualification required for appointment to the landboard is a Junior Certificate. There is no requirement for candidates to have any training or experience in land matters, although many do. Members' pay is also poor. A member receives a daily sitting allowance and a monthly responsibility allowance that is roughly equivalent to the salary paid to a senior clerk in government irrespective of their level of qualification or experience. This makes it difficult to attract candidates of high calibre. Experience has shown that landboards work best when their members have a diversity of experience.Board members are now (since 2011) appointed by the minister advised by the recommendations of a Landboard Selection Committee whose secretary is the Board Secretary. There is no public participation in their appointment. A further deleterious change introduced in 2011 is that the board itself no longer has the power to elect its own Chairman or Vice Chairman.
The minister, acting on the advice of the Board Secretary, now makes these appointments. The consequence of these procedures is that people appointed members and chairmen of land boards lack independence and tend to be those who will not challenge or oppose a Board Secretary's wishes. The situation is tantamount to the mouse hiring the cat.
The members and chairmen of landboards are, in-fact, accountable to the Board Secretary and not vice versa as it should be. The Board Secretary also has the power both to recommend that a member be surcharged and to recommend that a member be removed from the board. These powers re-enforce the Board Secretary's power over the members. Where a board secretary is corrupt, as some are, it is almost impossible for board members to act against him even if a majority were minded to do so. Nor can the members assert effective control over the actions of their staffs and the execution of their decisions.
Due to poor pay and the low level of qualification and experience required, some landboards have found difficulty in recruiting members of a high calibre who understand their role. The great majority of board members are dependant upon their income from the landboard and all are aware of the Board Secretary's power over their membership. As a result, they are rarely willing to challenge a Board Secretary's actions and decisions for fear that they may be removed from the board or not re-appointed. This has led to a number of wrong decisions, dilutes accountability and encourages tolerance of incompetence and corruption.
Board members do not have the right to record their dissent from decisions which they believe to be wrong, unlawful or unjust. A dictatorship of the majority exists which makes it very difficult for independent minded members to do their job, scrutinise the conduct of board officials and prevent corrupt practices. At the same time, the landboard's own staff is appointed by the Ministry of Lands and Housing and is subject to the Ministry's control. The board's members have no say whatever in the appointment of the Board Secretary or of any of their staff. The landboard itself is not permitted to give any instruction to the Board Secretary or any member of its staff. It may only pass resolutions and leave them to the Board Secretary to implement (or not). As a result, the landboard's ability to act independently is curtailed.
Senior politicians and officials in the Ministry of Lands and Housing support this system, apparently because they think it gives them 'control' over the actions of landboards. The fallacy of this belief is well illustrated by the inability of that ministry to control events on tribal land in Mogoditshane, which is on its doorstep. The unfortunate fact is that Board Secretaries are virtual 'loose cannons' that are not effectively monitored or held to account either by the ministry or by their boards.
Conclusion
There are serious problems concerning the administration of tribal land, mainly due to poor governance and largely the result of ill-advised changes to the Tribal Land Act and its regulations. The basic problem is that the service providers themselves, in order to satisfy their own agenda rather than to meet the needs of service users, designed the system for administration of tribal land. This problem is not unique to land administration in Botswana, but it needs to be addressed as a matter of urgency if national aspirations for economic growth and social justice are to be met.
The system appears as if it has been designed to be dysfunctional, with an inappropriate distribution of power and responsibility, risk and reward between the various actors and stakeholders. In particular, board members need to be made accountable to the people they are supposed to serve and given more power over their staffs while the powers of the Board Secretary over the appointment and retention of board members should be curtailed.
The above notwithstanding, the basic principle of a decentralised and locally accountable system of administration of communally owned land is a sound one and should be pursued. However, we need to learn from past mistakes and to re-apply the founding principles upon which the system was designed consistently. In particular, more emphasis on meeting the real needs of system users is required if the land rights of the poor are to be protected and upheld and national goals for social and economic development achieved.
* Richard White was appointed a District Officer (Lands) in 1979 and has been involved in land issues on tribal land ever since. In 2002, he was deputy team leader of a review of land policy in which he focused on rural land use issues. From 2007 to early 2011, White was a member of the Kgalagadi Landboard of which he was Chairman in 2009 and again in 2011.