integration of customary and - world...

Division "Agriculture, Fisheries and Food"

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.


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


4. Conclusion and issues for policy consideration


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!)


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


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


Land Use in Botswana 2008


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


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


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



• 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


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


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


Land Ownership in Namibia 2006


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


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


16


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


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



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


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?


Thank you very much for your

attention!

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