The King of England made the following pronouncement on the 16 May 1904, “And whereas the Chiefs Khama of the Bamangwato, Sebele of the Bakwena, and Bathoen of the Bangwaketse, have abandoned all rights and jurisdiction in and over certain portion of their former territories” and the abandoned lands became “Crown Lands”. This suggests that at some point prior to this pronouncement the mentioned Chiefs had rights and jurisdiction over certain defined territories.
In terms of Proclamation No.19 of 1908 dated 11 March 1908 Chief Khama is recorded as having entered into a verbal agreement with Rhodesia Railways to transfer certain areas of land within his territory to the company. The proclamation records that the said pieces of land were the property of Chief Khama. I make reference to this proclamation because it suggests that Chief Khama had ownership over his territory. As far as the colonial master was concerned the tribe had no property rights over the land.
Parliament of Botswana passed the Tribal Land Act in 1968 which took all rights and title of the Chief and the tribe to their land and vested these on the Land Board. Interestingly there is a suggestion in this Act that the tribe may have had some rights and title to the land. I am not aware of any proclamation that makes reference to any rights and title that the tribe had over the land. The Land Board was mandated to hold the land in trust and for the benefit of tribesmen of the area, and for the purpose of promoting the economic and social development of the peoples of Botswana.
Parliament in 1993 passed an amendment to the Tribal Land Act in terms of which the words “tribesmen of the area” we replaced with “citizens of Botswana”. This suggests that in so far as land in tribal territories is concerned neither the Chief nor the tribe has any property rights to speak of. The rights and title vest in the land board. One might even suggest that the party that has really been deprived on any property rights is the Chief. Other than retaining a Chief who has no property rights over the land what other claims to tribal territories do tribes really have?
The case of the CKGR Basarwa comes into play in that the position taken by government is that only those Basarwa who were party to the CKGR case can benefit from it. I suppose this is primarily because there is no respect for tribal group property or cultural rights under our constitution and laws that are tied tribes to any tribal land. This suggests the same applies to Bangwato and other tribes. They do not, as a tribe have any claim to property rights over their tribal territory. The question then becomes that of how culture is to be treated.
It seems to me that following the CKGR Basarwa case the rights of user of land for cultural purposes is recognized for those who claim such rights through obtaining a court order, where such are denied, otherwise the government is in control, and can dictate the nature of the relationship between culture and land. From the above it seems that even though as a matter of culture, the tribe meets at its kgotla, because both the Chief and the tribe have lost rights and title to the land to the land board, they need the land board’s permission to use the kgotla. Now we all know that the land board, by law, takes direction from the Minister, who takes direction from the President.
I remember that there is a case where our court of appeal makes mention of “community rights” without going into what this means. Our courts also apply the concept of “legal interest” as distinct from other interests for one to have the right to sue at court. The question that then arises is what legal interest do members of a tribe have in the use of the kgotla? If the argument is advanced that they have freedom of assembly, the very constitution that recognizes this right allows parliament to make laws that restrict this right, and such laws exist in our statutes. If the tribe is denied the cultural or community privilege to use the kgotla by the land board, and it applies for a permit to assemble there, who is in charge?
To put the position of tribes into context let us refer to the proclamations dealing with the Tati District. Proclamation Number 2 of 1911 states that it is” confirming the full, free and undisturbed possession as owners of all the land within Bechuanaland Protectorate usually known as Tati District” I am not aware of any proclamation, or post- independence statute that sets out the rights of any tribe to tribal land to the same detail.
It is interesting that in the face of such a proclamation asserting the rights of Tati Concessions Limited, there is never such a proclamation in regard to the Chiefs. They are said to have renounced all rights and jurisdiction. Then again perhaps the colonial master was never in doubt as to the extent of the Chiefs’ right to the land, at least is so far as it related to alienation of the land in favour of the colonial master.
I am of course familiar with what Isaac Schapera and others have written about customary law, but where customary law conflicts with statute, the statute takes precedence. Even assuming that in terms of customary law the Chief held the land in trust for the tribe, the effect of the Tribal Land Act was to vest such rights in the Land Board.
In the Balete case relating to their farm, of which they have a title deed where the Chief supposedly held the land in trust for the tribe, again an interrogation of the diminished status of the tribe arises. In trusts the trustee becomes the special owner, and the trust beneficiaries have no ownership rights, the issue of tribal ownership of the farm does not really arise. But because ownership is “right and title” the Chief lost these in 1970 if the Tribal Land Act is constitutional. If we assume that it is, then the issue becomes that of the amount of compensation due for the dispossession.
The Mineral Rights in Tribal Territories Act also dispossessed the tribes of mineral rights. The question then becomes given that the tribes do not own tribal land in their territories and do not own mineral rights in their territories, just what do tribes own? It seems to me that tribes own only their tribal identity and have chiefs who themselves have lost ownership of tribal land and mineral rights. When regard is had to this I believe I am justified to conclude that tribes have been detribalized, it is just pure sentimental attachment to cultural identity, an appeal to a glorious past, or past injustices that holds tribes together.
Interestingly with regard to Mineral Rights in Tribal Territories there are agreements between the Chiefs and Sir Seretse Khama transferring such rights to him for no compensation. I am not sure that any such agreements exist with regard to tribal land. Then again if one takes a cue from the colonial master the claimant will be the Chief not the tribe. It is a bit strange that the Chiefs would exclude compensation with regard to minerals by entering into agreement, but not expressly so with regard to tribal land or any other land that they hold.
It is perhaps time we abolish the Ntlo ya Dikgosi, what I prefer to call “House of Birth” because other than being born of certain parents, there is no requirement for merit for one to be a member of that body. Further if regard is had to how the Chiefs have been inept at protecting their own property rights, in land and minerals, what reason do we have to hold them up as being successful at anything. All I hear is arguments about culture and that they should be given more powers. What really is the value of a culture that excludes land and minerals? What really is the notion of tribe that does not own land and minerals, that cannot legally assert a link between culture and land?
In the final analysis the situation of Bangwato and all other tribes, is coming out as no different from the Basarwa of the CKGR. They both have lost their land and minerals. They both have no legal interest to use of the kgotla that is independent of government control, discretion or coercive power. In a way Bangwato and other tribes, have to join Basarwa in advocating for recognition of indigenous cultural rights that have a link to the land, not hired venues. Tribes, as currently constituted and led, are just labels that justify membership of the “House of Birth” nothing else.
