Land rights are the most fundamental rights to be given to any people. I argue that Land rights are human rights because without land rights there is no human dignity to preserve, cultivate and uphold. Most of us do not fully understand what land rights mean, land rights mean more than just the right to own land but to also use it for the benefit of self and kind. I give an example of owing a cow, the ownership extends to the benefits of its produce such as meat, milk and the calves. If I give you a cow but deprive you of its meat, milk and its calves then the ownership is a fraudulent illusion and duplicitous.Fellow Batswana, believe it or not but we have not been active participants in the development of our country due to disabling laws that rendered us spectators. 70% of Botswana is Tribal Land, and of that 70% the 50% and more is agricultural land, farmland, grazing areas and fields (Masimo). These land parcels are the natural heritage of Batswana in the historic tripartite land ownership system of the country. This means Batswana have over a 50% stake on the land and common sense would suggest that they should be 50% stake holders in development. However the reverse has been true, Batswana have watched from the sidelines as foreigners and others develop and accrue maximum benefit from their land of Batswana. This undesirable status quo has obtained to this very day owing to such policies as Ministerial Directives such as ref CLH 1/10/1 V1 dated 5th August 2005 titled ‘Applications for Change of Land Use and Subdivision of Fields (Masimo)’. Such policies and directives deliberately forbode any Motswana from applying to change the use of their fields (Masimo) to other non agricultural uses and to further subdivide it. Imagine the effect of such a draconian measure meted out by a government against its own people.
The Directive was across the board with no consideration of the uniqueness of the merit of each application. It is one thing for a foreign government in the days of colonialism to oppress and deny the natives their land rights but it is unacceptable for our own government to do the same or worse under all manner of pretexts.All our former Presidents have contended with this self inflicted malady but the current President of the Republic of Botswana, His Excellency Mokgweetsi Eric Keabetswe Masisi has dealt squarely and head-on with this violation of human rights in his Presidential Directive CAB 14A of 2019 which has been translated into law through the amendment of section 2.10.3 and 2.11.3 of the Development Control Code a subsidiary legislation of the Town and Country Planning Act. This law and guidelines were served to all land, planning and relevant authorities through a savingram from the Permanent Secretary at the Ministry of Land Management Water and Sanitation Services dated the 11th October 2019. This date was a pivotal date in our history but many do not know or understand. It is the duty of those who understand the implications of this Law to explain it in full to those who do not understand it. This Law is in my humble view the best law we have ever had since our independence in September 1966 from a protectorate status.
Unfortunately or fortunately depending on ones perception, for every action there is a reaction, so this new law has produced a reaction from those in positions of authority. The psychology of authorities prior to this new law has been that fields (Masimo) are to be used for nothing else but agriculture and authorities had evolved policies that advocated for repossession of fields that are in the path of development plans. That position has now since been rectified legally by amending the relevant statutes. Well done Mr President. Having said that though the passing of laws does not guarantee the application of those laws if those in positions of authority are indifferent to that law or are having difficulty adjusting mentally to the new dispensation. Generally civil servants implement laws that they are in favour of, it is our duty as an intelligent population to teach them that laws are not a personal thing and must be implemented even if one feels uncomfortable about it. That is what Law and Order is about. Without the action of implementing laws then we have a corrupt society of preferential treatment. Since the formal inception of this law referred to above on the 11th of October 2019, a lot has happened that has made manifest the collective character of our Civil Service.
Firstly there has been wide spread maladministration, actions of government bodies that has led to injustice and denial of lawfully constituted land rights. The new law has prompted some authorities within the greater Gaborone area to scramble and focus only on a small part of this law for corrupt gains and to enrich themselves unfairly. They have naively chosen only to zoom in on annexure 2 section 8(3) the part of the new law that makes reference to acquiring agricultural land and compensation in monetary terms or in kind. However authorities misapplied this section of the law as this section is categoric in that such acquisition takes place if the field or agricultural land is within a planning area. Due to greed and the wrong motives authorities under a plethora of unlawful applications proceeded to enact compensation in kind outside planning areas and where there was no development plan to justify acquisition, purely because the interest was on the compensation and not the enactment of the new law which is a broad law with specific guidelines of how change of land use is done for agricultural land (Masimo).
When it was discovered that our own government officials in land boards were involved in these unlawful actions especially in Kweneng and Kgatleng, Moratoriums were passed that effectively suspended the new law from being applied that was intended to benefit an innocent public that have nothing to do with the false scramble and unlawful actions of some land board officials. As we speak there is an indefinite Moratorium that has been passed by Kweneng Land Board and another passed by Kgatleng Land Board. The reason given for these moratoriums is that there are investigations into the maladministration that took place. In our humble opinion this reason is a pretext to further deny Batswana their long awaited land rights that His Excellency the President of Botswana finally accorded them on the 11th October 2019. The investigations have absolutely nothing to do with peoples land rights. The new land law is clear in terms of how it is to be applied and the authorities did not follow it and now they compound this injustice by suspending a law meant to uplift Batswana’s lives. This is wrong.
The application of this new law in no way shape or form has a bearing on investigating and prosecuting those who committed offences. Criminals are always among us but we do not stop the running of government because there are thieves, we isolate the thieves, prosecute them whilst continuing to let the public enjoy their God given rights. When on the highway or A1 and some drivers overspeed, the police issue tickets to the offenders and allow the law abiding drivers the rite of passage. They do not shut down the highway because of those who overspeed. These unlawful moratoriums have effectively shut down the avenue of development for law abiding citizens on account of offenders. Flawed reasoning. It is so ironic that a law was passed to empower Batswana but now the reverse is happening. Many have got their livelihoods at a stand still because Land Boards have in the process of changing their land use taken their land rights and now have suspended all transactions so those individuals are sitting with nothing to their name. This is wrong.
The case of Kgatleng:
We have noted with great concern the unlawful moratorium instituted by Kgatleng Land Board on the 2nd September 2020 for all change of land use applications in Kgatleng District. This moratorium was issued against the backdrop of the following:
• Many applicants who had been granted change of land use permission by Oodi Sub Land Board and received planning permission from the Kgatleng District Council, also with approved survey diagrams being denied the right to be issued land board leases as per the law. • Many applicants who had received approvals for change of land use by Oodi Sub land board have had their approvals revoked or rescinded without lawful justification. • Many applicants who had Oodi Sub Land Board approval for change of land use, Council approval for subdivision and proceeded to do cadastral surveys on their land parcels have the Department of Surveys and Mapping refusing to examine and approve their surveys unlawfully. • Many applications that have been submitted dating all the way back to last year have been indefinitely deferred by Kgatleng Land Board well outside the stipulated 14 day period stipulated in the Development Control Code, this is unlawful.
It is clear that the Kgatleng Land Board is acting contrary to the Law enshrined in the Town and Country Planning Act and the Subsidiary Legislation that stipulates conditions under which a moratorium in planning applications may be issued. Kgatleng Land Board is also acting contrary to Section 5 of the Tribal Land Regulations. Kgatleng Land Board has also acted contrary to section 17 of the Tribal Land Act.It is also blatantly clear that the moratorium issued by Kgatleng Land Board defeats the principles of natural justice as it worded to work retrospectively in the words, ‘this includes applications that are at the time of commencement of this moratorium also held or partly processed by the Land Board’.The process for the application of change of Land Use and development of agricultural land is clearly outlined on page 6 of 8 annexure 2 section 8 of the Development Control Code and as stakeholders and citizens we have a duty to make sure that the aforementioned land rights are observed and reinstated by setting aside the unlawful moratorium for Kgatleng Land Board and equal observance to all the other pertinent processes regarding change of land use which are the following:
1 Setting aside Kgatleng Land Board Moratoriulm dated 2nd September 2020. 2 Issuance of leases within the stipulated time frames. 3 Approval of Survey Diagrams of Change of Land Use by the Department of Surveys and Mapping. 4 Rendering of decisions on applications for change of land use as per the stipulated time frames.
We have a duty to our government as citizens and professionals such as myself who have taken oath to serve the country as a Land Surveyor, without fear, favour or affection but only in terms of the law. So in the face of these gross violations by our own government we have gone on record with letters to the President of the Republic of Botswana, Minister of Land Management Water and Sanitation Services, Director of Surveys and Mapping, Land Board Secretaries and Council Chairman for Kgatleng and Kweneng. We know from experience that even though the Moratorium is worded to suggest that on the 31st of October 2020 it will be lifted this is not going to happen, they will keep extending it indefinitely to postpone giving Batswana their land rights. We know this as a fact because even in Tlokweng there is an indefinite Moratorium that has denied developments on agricultural land for over two years going on to three. This is what they do. Land Rights should not be denied under false pretexts.
On that note we have resolved to take our matters to court, as a Botswana Registered Land Surveyor in direct association with Lediretse Attorneys we successfully prevailed in a case MLT LB 004/18 in the Land Tribunal held at Maun for the change of land use of a field in the Maun Planning Area using the tenets of the new law and its correct application. The judgement entered into in favour of our client went unchallenged and is now precedent. We have determined to draw from that legal position and take the Land Boards of Kgatleng and Kweneng to court to have their illegal Moratoriums set aside and the implementation of the new law by all government departments such as Councils, Land Boards, Department of Surveys and Mapping and Deeds Registry. Then armed with such a court order or court orders we can begin to derive the benefits that our President promised us in his election message on land. We need to help our President and help his vision. Each application has its own merits and the claim that this new law will bring anarchy by government bureaucrats has been quashed in the judgement referred to above. The law must be applied equally and to all, not selectively and preferentially as it currently is. We need a court order or court orders unfortunately to put our government right with pure logic.
It costs money to carry out these processes and we are asking for donations and sponsorships from the general public, particularly the land owners where Oodi Sub Land Board and Mogoditshane Sub Land Board have jurisdiction. This is a very dynamic area of development that has the potential of involving hundreds of thousands of Batswana developers and beneficiaries, we should not be left out and the only way is court. Please send donations to Lediretse Attorneys and reference with your name and whether its for Kgatleng or Kweneng. Once the case is done a statement of accounting will be issued and refunds if any will be made. The more the people who contribute (any amount) the easier. We already have contributions started by the Kgatleng Land Owners and many pledges. Help us help you to get our country on course before the wheels come off. Take this message to all community organisations, take it to the church and pray over it because it is the will of God that Batswana get their land rights in full and uncurtailed. I am bringing this to you in pen but there is a lot more about land the time and what must be done from where this came from.
