ENHANCING PROPERTY RIGHTS THROUGH LAND TENURE REGULARISATION IN BOTSWANA PATRICK MALOPE, AND MOLEFE PHIRINYANE Botswana Institute for Development Policy Analysis Paper prepared for presentation at the “2016 WORLD BANK CONFERENCE ON LAND AND POVERTY” The World Bank - Washington DC, March 14-18, 2016

Presentation Layout Introduction and Objectives Overview of land tenure systems and property rights in Botswana Land governance and administration in Botswana Challenges of the land administration and governance systems Land tenure regularisation in Botswana – LAPCAS Lessons learned from LAPCAS Conclusions

Introduction Botswana is sparsely populated country, 3.5 people per sq. km Despite this, there are numerous land disputes and squatter settlements in peri urban areas Land admin has been that of careful change, responding to particular needs with specific innovations Recently in 2009Botswana undertook a bold step towards tenure regularisation in tribal land areas LTR was undertaken to improve tenure security in tribal land

Introduction and Objectives To undertake a comprehensive review of land tenure regularisation process in Botswana Identify the challenges and successes of LTR in Botswana Identify lessons learned from the LTR process in Botswana and provide advise for countries intending to undertake LTR process Develop guidelines of how to undertake a successful land tenure regularisation process in Africa

Land governance and administration Pre- Colonial Period (Before 1895) Customary/Tribal land Colonial Period ( ) Native Reserves Crown Lands Freehold Land Post Independence Period (1966 – present) Tribal Land (71%) State Land (26%) Freehold Land (3%)

Land governance and administration Land governance is guided by a comprehensive set of laws – 17 Acts A number of policies have been formulated to address land management and administration The most recent policy is “Botswana Land Policy of 2015” A number of institutions are involved in land administration, mostly in the Ministry of Lands and Housing These institutions include Land Boards, Town and Country Planning Boards, Councils, State Land Allocation Committees Land disputes are handled by the Land Tribunal and appeals by the High Court

Land governance & admin. – Tribal Land Previously allocated by Chiefs during the colonial period and before Chiefs allocated land to their tribesmen for residential and agricultural uses Tribal Land Act of 1968, established statutory bodies known as Land Board in each Tribal Territory (12) LBs took the responsibility of allocating land from Chiefs, although the former remained ex-officio members of LBs. The Tribal Act of 1968 stipulated that LBs could allocate land to their tribesmen only

Land governance & admin. – Tribal Land Lack of land for residential purposes in peri-urban areas led to self allocation – squatter settlements Government responded by setting up a Presidential Commission to identify the causes of the problem. The Commission recommended the amendment of the Tribal Land Act of 1968 Tribal Land Act amended in 1993 to remove the word tribesmen so that LB could allocate land to all Batswana After this amendment there was a substantial increase in the number of applications for residential land especially in peri-urban areas and there is long list of applicants waiting to be allocated plots.

Land governance & admin – Tribal land Under tribal/customary land tenure owners have perpetual rights to the land they hold and land can be transferred or inherited However, the land remains the property of the state and can be repossessed for developmental purposes, with compensation determined by the state The holder of tribal land can only transfer ownership with the consent of the LB only after certain developments have been made Tribal land is allocated under two types of grants: customary grant and common law leases Customary grants are for citizens only and land held can not be encumbered

Land governance & admin – Tribal land Customary grants certificates are not accepted as collateral by financial institutions as the land has not been registered in the Deeds Registry Office Customary rights may be turned into common law leases Common law leases are allocated to both citizens and non-citizens Leases are allocated for periods between yrs. Once the common law leases has been registered with the Deeds Registry mortgage bonds may be registered in order to secure loans

Land governance & admin – Freehold and State Land Freehold land is governed by Land Control Act of 1975 Freehold land is held under perpetuity and the owner is free to sell the property Freehold title is inheritable, freely transferable and registrable. Freehold land was created in the colonial period for white settlers, mainly for agricultural purposes State land is owned by Govt. and is governed by State Land Act of 1966 and is found in urban areas and national parks It is allocated under: Deeds of grants, Fixed Period State Grants and Certificates of Grants The holders are free to sell, lease or mortgage their property

How did LTR come about in Botswana LTR was instituted in Botswana because of a number of problems in the administration of tribal land Started with a review of the current land administration and procedures A workshop of all stakeholders was held in 2008 with assistance of the Swedish Government. The workshop was attended by departments within Ministry of Lands and Housing and other external stakeholders The output of the workshop was a problem tree which identified the causes, and the effects of the problems.

Challenges to land administration in Botswana Poor record keeping in many LB No unique plot numbers or similar referencing Some plots allocated before LBs not registered at all No common register for tribal land Poor coordination of land admin institutions and overlapping legislations Inadequate capacity

LTR in Botswana - LAPCAS Land Administration Procedures, Capacity and Systems (LAPCAS) Partnership between GoB and Swedish Mapping and Cadastre and Land Registration Authority and SIDA LAPCAS main objective “successful social and economic development of the nation of Botswana based on efficient, effective and transparent land administration” At the end of the project it is expected that “land administration process and systems are providing the services and information that society needs”

Components of LAPCAS National systems of unique referencing of land parcels and addresses Improvement of land administration processes Deeds Registry computerisation National land registration Development of land information systems Information exchange and dissemination Capacity building

National Land Registration Before LBs tribal land was allocated without records of either the plot owner or the land parcel LBs did not have records of who owns what land and where and what is it used for The aim of this component is to develop a systematic process of adjudication which will clarify tenure and ownership in tribal land The process started with a pilot whose main objective was to train LB officers and get experience of the challenges in adjudication process Guidelines were developed and are now being used for full rollout which is expected to end in December 2016.

Fig. 1: Procedures for Systematic Adjudication CAPTURE IN STARDUST RECORDS MANAGEMENT

National Land Registration The process of requires full participation of stakeholders Communication is an important part of the process Plot owners are required to bring documentation as evidence for ownership Surveying is done for free and current costs are BWP ≈USD6.30 As at February 2016 – only 7.6% of the targeted plots (464,634) had been adjudicated across the country; 45% - surveyed; 41% - inspected; 19% - claimed; 12% - verified; 0.8% - clarified;

Challenges Reluctance of plot owners to put forward their claims No legal framework to compel people to register their plots Insufficient publicity Shortage of land surveyors Delays in finalising new certificates Way forward Implementation of communication action plan – Road shows Expedite approval of legal instruments Institutionalise change management

Lessons Learnt from LAPCAS Need to undertake a diagnostic before undertaking a LTR process Piloting important to build capacity of implementers Sustainability, need to identify training needs and involvement of local staff right from the start LTR is time consuming and a very expensive exercise so far over USD24.5 million has been spent with only 7% of the plots having been adjudicated and waiting for issuance of new certificates Change management needed Need for legislative review