¹ This article arose out of a verbal presentation made at a workshop on Human Rights and the Right to Development, University of Botswana, Gaborone, 27–28 February, 1995. I must record my gratitude to several colleagues who contributed to the completion of the work. Sidsel Saugestad of Tromsø University, Norway, cajoled me into thinking about Basarwa land issues and provided invaluable materials and information. Anthony Sanders of Vista University, South Africa, commented on an earlier draft and encouraged wider dissemination of my research efforts on this topic and on land tenure issues in Botswana. B. Moeletsi of the University of Botswana collaborated on a similar project for the Christian Michelsen Institute of Norway. I am of course solely responsible for the errors that might be apparent in the work, and for the views and opinions which some might disagree with.

² Hitchcock, R., “Socioeconomic change among the Basarwa: an ethnohistorical analysis”, (1987) 34, 3 Ethnohistory 219.CrossRefGoogle Scholar

³ See, for example, Good, K., “At the ends of the ladder: radical inequalities in Botswana”, (1993) 31, 2Journal of Modern African Studies 203.CrossRefGoogle Scholar

⁴ See, for example, Mogwe, A., Who was (t)here first? Botswana Christian Council, Occasional paper No. 10, 1992, 5–10;Google ScholarKahn, U. et al. , Let them talk: a review of the Accelerated Remote Area Programme, Gaborone, 1990, xii–xiiiGoogle Scholar; and Saugestad, S., “Developing Basarwa research and research for Basarwa development”, Report from a workshop on Basarwa research held at the University of Botswana, Gaborone, 1993. At least two international/regional conferences on Basarwa issues were held between 1992 and 1993; in Windhoek, Namibia, 16–18 June, 1992, and in Gaborone, October 1993.Google Scholar

⁵ For an indication of some of writings on this overworked topic see Cant, G., Overton, J. and Pawson, E. (eds.), Indigenous Land Rights in Commonwealth Countries, Christchurch, New Zealand, 1993.Google Scholar

⁶ Opinion on “Re common law leases”, 23 January, 1978, as quoted by Hitchcock, R., Kalahari Cattle Posts, Ministry of Local Government and Lands, October 1978, Vol. 1, 242.Google Scholar

⁷ Spinage, C., History and Evolution of the Fauna Conservation Laws of Botswana, Gaborone, 1991, 30.Google Scholar

⁸ Liz Wily, The TGLP and Hunter-Gatherers: A case study in land politics, NIR Working Paper No. 33 January 1981, 66. This aspect of the opinion was also arguably erroneous. The Prescriptions Act, Cap. 13, 01, suggests that rights may not be acquired by acquisitive prescription over State land or tribal land. The categorization of land in Botswana is taken up later.

⁹ The literature on this concept is immense and overwhelming. Notable books and monographs include Lee, R., The Rung San: Men, Women and Work in a Foraging Society, Cambridge, 1979;Google ScholarGuenther, M., The Farm Bushmen of the Ghanzi District of Botswana, Stuttgart, 1979;Google ScholarTanaka, J., The San Hunter-Gatherers of the Kalahari, Tokyo, 1980;Google ScholarSilberbauer, G., Hunter and Habitat in the Central Kalahari Desert, Cambridge, 1981; and Barnard, A., Hunters and Herders of Southern Africa: Comparative Ethnography of Khoisan Peoples, Cambridge, 1992. The following chapters and articles are also worth citing:Google ScholarBarnard, A., “Kalahari Bushman settlement patterns”, in Burnham, P. and Ellens, R. (eds.), Social and Ecological Systems, London, 1979, 134—144;Google ScholarCashdan, E., “Territoriality among human foragers: ecological models and an application to four Bushmen groups”, (1983) 24, 1 Current Anthropology 47–66;CrossRefGoogle Scholar and Wilmsen, E. and Denbow, J., “Paradigmatic history of San speaking peoples and current attempts at revision”, (1990) 31, 5 Current Anthropology 489–524.CrossRefGoogle Scholar

¹⁰ Wilmsen, E., “Those who have each other: San relations to land”, in Wilmsen, E. (ed.), We Are Here: Politics of Aboriginal Land Tenure, California, 1989, 65.Google Scholar

¹¹ Sidsel Saugestad, “To corner the Bushman market: research paradigms and use of research on the indigenous people of Botswana”, paper presented to the Norwegian Association for Development Research annual conference, Tromsø, May 1994, and “Developing Basarwa research and research for Basarwa development”, report from a workshop on Basarwa research held at the University of Botswana, September 1993.

¹² Hitchcock, R., Monitoring Research and Development in the Remote Areas of Botswana, report to the Remote Area Development Programme, Ministry of Local Government and Lands, July 1988, 3–37 t o 3–38 and 4–39, attempts to collate and present such information, but he too cannot vouch for the accuracy or reliability of some of the details.Google Scholar

¹³ See n. 9.

¹⁴ See Hitchcock, Monitoring Research and Development, Appendix 4, 30 for a basic description of these features of the region.

¹⁵ Schapera, I., Khoisan Peoples of Southern Africa, London, 1930, 75.Google Scholar

¹⁶ See Cashdan, “Territoriality among human foragers”, 52–53; Lee, R. “!Kung spatial organization: an ecological and historical perspective”, (1972) 1, 2 Human Ecology 125–147;CrossRefGoogle ScholarSilberbauer, G., Hunter and Habitat in the Central Kalahari Desert, chs. 4–5; andGoogle ScholarHeinz, H., “Territoriality among the Bushmen in general and the! Ko in particular”, (1972) 67 Anthropos 405–415.Google Scholar

¹⁷ The literature is on the! Kung of Dobe is more specific on this issue. Band leaders, identified as owners of water holes, were apparently called K'ausi. The territory within which one or more water holes were located was called a n'ore. See Lee, “!Kung spatial organization”, 125–147, and Men, Women and Work in a Foraging Society, ch. 12; and Wilmsen, “Those who have each other: relations to land”, 51–61.

¹⁸ See Hitchcock, “Socioeconomic economic change among the Basarwa”, 219–244; Wilmsen, “Those who have each other”, 43–66; and Wilmsen and Denbow, “Paradigmatic history of San–speaking people”, 489–507.

¹⁹ For salient aspects of Tswana land tenure the standard and most frequently cited works are Schapera, I., Native Land Tenure in the Bahuanaland Protectorate, London, 1943, and A Handbook of Tswana Law and Custom, London, 1984.Google Scholar

²⁰ See C. Ng'ong'ola, “Land problems in some peri-urban villages in Botswana and problems of conception, description and transformation of tribal land tenure”, [1992] 36, 2J.A.L 144–48.

²¹ Wilmsen, E., “The political history of minorities and its bearing on current policies”, in Botswana —Education, Culture and Politics, Seminar Proceedings No. 29, Centre of African Studies, University of Edinburgh, 1988, 31–52.Google Scholar

²² Datta, K. and Murray, A., “The rights of minorities and subject peoples in Botswana: a historical evaluation”, in Holm, J. and Molutsi, P. (eds.), Democracy in Botswana, Botswana, 1989, 58–74.Google Scholar

²³ The court was established by a Proclamation of 1 February, 1893. Two important legal instruments preceded this Proclamation. First, the Bechuanaland Protectorate Order in Council of 9 May, 1891, gave the High Commissioner for South Africa the necessary powers to exercise jurisdiction within the Protectorate and to provide, by means of Proclamations, for the “order and good governance of all persons”. The Bechuanaland Protectorate General Administration Proclamation of 10 June, 1891, then declared that claims to land in the Protectorate by persons of European descent will not be recognized until approved in such manner as the High Commissioner would determine.

²⁴ One morgen was equal to 2.1165 English acres. Some of the well–known freehold farms of Botswana with quaint names like Ramatlabama Kuil, Crocodile Pools, Forest Hill, Traquair and Hildavale came out of the original approvals by the Concessions Court. Botswana National Archives (BNA) file HC 119 contains a report on the work of the Concessions Court.

²⁵ S. 19 of the Bechuanaland Protectorate General Administration Proclamation of 10 June, 1891.

²⁶ See BNA, file HC 119, Assistant Commissioner to Resident Commissioner, Mafeking, 31 December, 1898, and Selolwane, O., “Colonizing by concession, capitalist expansion in the Bechuanaland Protectorate 1885–1950”, (1980) 2, 1PULA: Botswana Journal of African Studies 85–91.Google Scholar

²⁷ See Lord, Hailey, Native Administration in the British African Territories, Part V London, 1953, 230–34; andGoogle ScholarWerbner, R., “Land an d chiefship in the Tati Concession”, (1969) 2 Botswana Notes and Records 6–13.Google Scholar

²⁸ See, for example, Sillery, A., Founding a Protectorate, History of Bechuanaland 1885–1895, London 1965, especially chs. XI–XIII: andGoogle ScholarSanders, A., Bechuanaland and the Law in the Politicians' Hands, Gaborone, 1992.Google Scholar

²⁹ See Bechuanaland Protectorate (Lands) Order in Council, 16 May, 1904; and BNA files RC 2/8/1, RC 2/8/2 and RC 2/8/5; and Lord Hailey, op. cit., 200. Land for the railway project was also ironically promised without any cast-iron guarantees as to the future status of the Protectorate. The prospect of company rule remained imminent, at least until the infamous Jamieson raid in late 1895 confirmed the argument that the company was not fit to be entrusted with the administration of the Protectorate.

³⁰ Ss. 1 and 2 of Proclamation No. 4 of 1905, 7 February 1905; and s. 1 of Proclamation No. 2 of 1911, 21 January 1911.

³¹ See, generally, BNA file HC 147 for the Ghanzi settlements. Different figures are given in some accounts as to the number of families or farmers allocated land or the number of farms actually laid out.

³² BNA file S 462/8/ 2 confirms that some of the farms were repossessed for non-payment of rent.

³³ BNA file HC 147, Resident Commissioner, Mafeking to High Commissioner, Cape Town, 16 March, 1899.

³⁴ Guenther, The Farm Bushmen of the Ghanzi District of Botswana, 54–57.

³⁵ BNA file RC 2/8/1.

³⁶ Proclamation No. 9 of 1899. This created reserves for the Ngwato, Kwena and Ngwakwetse “tribes”, from whom land was taken for the railway project, as well as for the Kgatla and Tawana.

³⁷ Art. 1 of Proclamation No. 2 of 1911.

³⁸ Proclamation No. 28 of 1909 created the Malete reserve. Proclamation No. 44 of 1933 created a reserve for the Tlokwa of Gaborone; and Proclamation No. 77 of 1935 declared that the Barolong Farms in the south should be regarded as a reserve for administrative purposes.

³⁹ This was the case with Tad reserve and the Tlokwa reserve. See Art. 1(1) of Proclamation No. 2 of 1911; and Hailey, op. cit, 238–239 and 312.

⁴⁰ See Hailey, op. cit., 311, and Ng'ong'ola, “Compulsory acquisition of private land in Botswana: the Bonnington Farm case,” (1989) CILSA 299–301.

⁴¹ See, for example, Palmer, R., Land and Racial Domination in Rhodesia, London, 1977, chs. 2 and 3, and C. Ng'ong'ola, “The State, settlers and indigens in the evolution of land law and policy in colonial Malawi”, (1990) 23, 1 International Journal of African Historical Studies 50.Google Scholar

⁴² Tito v. Waddell No. 2 [1977] CH 106, 210–226 and Town Investments Ltd v. Department of Environment [1978] AC 359–382.

⁴³ Art. 1 of Bechuanaland Protectorate (Lands) Order in Council, 1910. Under the earlier Bechuanaland Protectorate (Lands ) Order in Council of 16 May, 1904, Crown lands were narrowly denned as “the lands abandoned by Chiefs Khama, Sebele and Bathoen” which were then passed over to the B.S.A. company in freehold as part of the railway project. The 1910 Order inelegantly included such lands within the definition of Crown lands although they were already converted or destined for conversion in to freehold land.

⁴⁴ Clive, Spinage, History and Evolution of Fauna Conservation Laws of Botswana, Gaborone, 1991, especially 26–46.Google Scholar

⁴⁵ Ibid., 30.

⁴⁶ Ibid., 59–60. At 52,800 square kilometres this was also apparently the largest game reserve in Africa at that time.

⁴⁷ Silberbauer, G., Report to the Government of Bechuanaland on the Bushman Survey, Gaborone, 1965, 132.Google Scholar

⁴⁸ Fauna Conservation Proclamation, No. 22 of 1961.

⁴⁹ Central Kalahari Game Reserve (Control of Entry) Regulations, GN 38 of 1963.

⁵⁰ For estimates of the sizes of the three main land categories at independence, see Machacha, B., “Botswana's land tenure: institutional reform and policy formulation” in Arntzen, Ngcongco and Turner, (eds.), Land Polity and Agriculture in Eastern and Southern Africa, Tokyo, 1986, 39.Google Scholar

⁵¹ State Land Act, Law 29 of 1966.

⁵² Republic of Botswana, National Development Plan 7, 1991–1997, Ministry of Finance and Development Planning, Gaborone, December 1991, 293.

⁵³ See Ng'ong'ola, “The post–colonial era in relation to land expropriation laws in Botswana, Malawi, Zambia and Zimbabwe,” (1992) 41 International and Comparative Law Quarterly, 117–136.

⁵⁴ S. 14(1).

⁵⁵ S. 14(3)(a)

⁵⁶ Ibid.

⁵⁷ S. 15(4). In terms of section 15(4)(e) it is also generally permissible to differentiate or accord privileges or advantages which having regard to the special circumstances, can be said to be “reasonably justifiable in a democratic society”.

⁵⁸ Moeletsi, B., “The San of Botswana: legal status, access to land, development and natural resources”, paper presented at the Second Regional conference on Development Programmes for the San People of Southern Africa, Gaborone, 7 October, 1993.Google Scholar

⁵⁹ This is notwithstanding judicial pronouncements suggesting that the Constitution and the Bill of Rights in particular should, where appropriate, be interpreted in a generous manner. See Attorney-General v. Moagi 1981 BLR 1; Petrus and Another v. The State 1984 BL R 14; Dow v. Attorney-General, High Court MISCA 124/90; and Attorney-General v. Dow, Court of Appeal, Civ. App. 4/91.

⁶⁰ The National Development Plan 7 indicates that National Parks and game reserves take up 16% of state land; Forest reserves take u p 1% and Wild Life Management Areas take up the remaining 8%. These figures relate to what s. 2 of the State Land Act describes as “unalienated State land”. There is no indication of the percentage of “reacquired State land” which is presumably predominantly used for urban land allocations in terms of the Act.

⁶¹ The Tribal Land (Amendment) Act No. 21 of 1976.

⁶² Fauna Conservation (Amendment) Act No. 47 of 1967, quoted by Spinage, op. cit., 30.

⁶³ Fauna Conservation (Unified Hunting) Regulations, passed under the Fauna Conservation Act No. 1 of 1979.

⁶⁴ Hitchcock, R., “Rights and resources: the special game licence and remote area dwellers in Botswana”, paper presented at the National Institute of Research and Development, NIR, University of Botswana, 1995.Google Scholar

⁶⁵ Act No. 54 of 1968.

⁶⁶ See Sir Seretse Khama, National Assembly, Official Report, Hansard 23, 2nd Session, 1st Meeting, 8–17 January, 1968, 14, and debates on the Second Reading of the Tribal Land Bill in Hansard 25, 2nd Session, 3rd Meeting, 6–9 August, 1968, 68–69.

⁶⁷ Ng'ong'ola, “Compulsory acquisition of private land in Botswana”, op. cit, 299.

⁶⁸ For general, comprehensive reviews of the Tribal Land Act and tribal land tenure reform in Botswana see Frimpong, K., “The administration of tribal lands in Botswana”, [1986] 30, 1 J.A.L. 51–74; Ngfong'ola, “Land problems in some peri–urban villages in Botswana”, [1992] 36, 1 J.A.L. 140–167; and “Ownership of Tribal Land in Botswana”, [1993] 37, 2 J.A.L. 193–98.Google Scholar

⁶⁹ Ss. 3(1) and 19(1) and First Schedule to the Act.

⁷⁰ Tribal Land (Amendment ) Acts Nos. 4 of 1979, 26 of 1982, 3 of 1983, 3 and 24 of 1984, 16 of 1985, and 15 of 1987.

⁷¹ Establishment of Subordinate Land Boards Order SI 55 of 1987.

⁷² Ss. 17 and 18.

⁷³ Reg. 5 of the Establishment of Subordinate Land Boards Order, 1973.

⁷⁴ The literature on the Tribal Grazing Lands Policy is voluminous and still growing. For a sample see Republic of Botswana, Notional Policy on the Tribal Grating Land Policy, Government Paper No. 2 of 1975; Hitchcock, R., “Tradition, social justice and land reform in Central Botswana”, in Werbner, Land Reform in the Making, 1–28; and “Water, land and livestock, the evolution of tenure and administration patterns in the grazing areas of Botswana”, inGoogle ScholarPickard, J. (ed.), The Evolution of Modern Botswana, London, 1985, 84–121;Google ScholarPeters, P., “Embedded systems and rooted models, the grazing lands of Botswana and the commons debate”, in McCay, B. and Acheson, J. (eds.), The Question of Commons, The Culture and Ecology of Communal Resources, Tucson, 1987, 171–194;Google ScholarMolomo, M., “ALand reform and the tragedy of the commons in Botswana”, (1989) 6, 2PULA 67–73;Google Scholar and Frimpong, K., “A review of the Tribal Grazing Land Policy in Botswana”, (1995) 9, 1PULA 1–16.Google Scholar

⁷⁵ See Monu, E., “The tragedy or benefits of the commons? Common property and environmental protection”, (1995) 9, 1PULA 81–95.Google Scholar

⁷⁶ See Tribal Land (Amendment of Schedule) Orders, SI Nos. 102 of 1981, 91 of 1984 and 35 of 1986; and Establishment of Subordinate Land Boards Orders, SI Nos. 36 of 1986 and 55 of 1987.

⁷⁷ Republic of Botswana, Report of the Review of the Tribal Land Act, Land Policies, and Related Issues, Ministry of Local Government and Lands, Gaborone, 1989; Report of the Commission of Enquiry into Land Problems in Mogoditshane and other Peri-urban villages in Botswana, Gaborone 1990; and Land Problems in Mogoditshane and Other Peri-Urban Ullages, Government paper No. 1 of 1992. For a discussion of diese reports and the litigation that arose see Ng'ong'ola, “Land problems in peri–urban villages in Botswana”, 140–167; and “Ownership of Tribal Land in Botswana”, 193–98.

⁷⁸ See ss. 77 and 78 of the Constitution, on the composition of the House of Chiefs; The Common Law and Customary Law Act, No. 51 of 1969; The Chieftainship Act, Cap. 41,01; and A. Sanders, “The Bushmen of Botswana—From Desert Dwellers to World Citizens,” (1989) 4 Law and Anthropology 118–19.

⁷⁹ Wily, The TGLP and Hunter-Gatherers, 67. This, to some extent, was a wrong interpretation because members of minority ethnic groups could be incorporated into Tswana tribes and be considered as tribesmen. On the other hand, many Basarwa were also incorporated into “Tswanadom” as serfs, without any claim to land rights. See Datta and Murray, “Land rights of minority and subject peoples in Botswana”, 58–74.

⁸⁰ Kweneng Land Board v. Kabelo Matlho and Others, High Court, MISCA 137/1990, unreported; and Court of Appeal, Civ. App. 10/91, unreported.

⁸¹ Act No. 14 of 1993 which came into force on 8 July, 1994.

⁸² Wily, Liz, “Hunter–gatherers in Botswana and the land issue”, (1994) 2 Indigenous Affairs 12.Google Scholar

⁸³ The Tribal Land (Amendment) Regulations, SI No. 64 of 1994, for example, have added to the requirements for a customary grant consideration of other land rights which the applicant possesses in the tribal territory and in any other tribal territory or city or town. Land boards ca n be enjoined to desist from making customary grants in certain areas, and to persons enjoying similar rights elsewhere. It is arguable that the introduction of citizenship as the primary qualification for customary land grants has not removed the power of the boards to be discerning in the allocation of land rights and to plan and zone areas for particular, exclusive uses.

⁸⁴ S. 15, amending s. 24(1) of the Tribal Land Act.

⁸⁵ Ibid.

⁸⁶ S. 38(1), introduced under s. 19 of the amendment.

⁸⁷ Republic of Botswana, Report of the Presidential Commission on Land Tenure, Gaborone, 1983, 7–9; and Report of the Commission of Inquiry into Land Problems in Peri Urban Villages, 107.

⁸⁸ See, for example Molomo, “Land reform and the tragedy of the commons” passim, and compare Frimpong, “A Review of the Tribal Grazing Land Policy in Botswana”, passim.

⁸⁹ See Keijsper, V.P., The Tribal Grazing Lands Polity at the Crossroads: Fencing by Individuals in the Communal Areas of Botswana? A Position Paper, Gaborone, 05 1992.Google Scholar

⁹⁰ Hitchcock, Monitoring Research in the Remote Areas of Botswana, 2–13 to 2–20; and, generally, Wily, The TGLP and Hunter–Gatherers.

⁹¹ Wily, The TGLP and Hunter-Gatherers, 66.

⁹² Ibid., 52

⁹³ These regulations were renumbered as regulations 20(3) and 20(4).

⁹⁴ S. 8 of the Constitution, described above. It may be noted that s. 13(2) of the Act gave land boards the power to cancel grants, including those “made prior to the coming in to operation” of the Act. But this had to b e done on specific grounds enumerated in s. 15 which did not include the requirement of the land for Tribal Grazing Lands Policy allocations. And even these provisions did not attempt to authorize unconstitutional cancellations.

⁹⁵ Notices published by the Tawana Land Board on the allocation of Tribal Grazing Lands Policy ranches in the Haina Veld area so claimed in 1990.

⁹⁶ Report on the Review of the Tribal Land Act, 22–23.

⁹⁷ Report of the Presidential Commission into Land Problems in Peri-Urban villages, 88–89.

⁹⁸ Ng'ong'ola, “Compulsory acquisition of private land in Botswana”, 302–308.

⁹⁹ S. 3 of Proclamation 76 of 1959, Cap. 13, 01.

¹⁰⁰ See Silberberg and Schoeman's Law of Property, 3rd ed.Durban, 1992, 223–237.Google Scholar

¹⁰¹ Ng'ong'ola, “Compulsory acquisition of private land in Botswana”, 308–315.

¹⁰² S. 14(3) of the Prescriptions Act.

¹⁰³ Wily, “Hunter-gatherers in Botswana and the land issue”, 12.

¹⁰⁴ Mabo v. Queensland (No 2), (1992) 107 ALR 1Google Scholar; 175 CL R 1; and [1993] 1 LR C 194.

¹⁰⁵ This the underlying theme of Alice Mogwe's report with the catchy title Who Was (t)here first? cited above.

¹⁰⁶ See Bennett, T.W., “Historical land claims in South Africa”, paper presented at the International Colloquium on Property Law at the Threshold of the 21st Century, Maastricht, The Netherlands, August 1995, 9–14.Google Scholar

¹⁰⁷ See Stokes, E., “The Treaty of Waitangi and the Waitangi Tribunal: Maori claims in New Zealand”, in Cant, G. et al. (eds.), Indigenous Land Rights in Commonwealth Countries, 66–80;Google ScholarHiatt, L.R., “Aboriginal land tenure and contemporary claims in Australia”, in Wilmsen, We Are Here, 99–117; andGoogle ScholarYoung, E., “Aboriginal land rights in Australia: expectations, achievements and implications”, (1992) 12 Applied Geography 146–161.CrossRefGoogle Scholar

¹⁰⁸ For my brief observations on this case I have relied on the summary of the judgment in (1993) 19, 1 Commonwealth Law Bulletin 45 and benefited from a succinct review by P. Butt, “The Mabo Case and its aftermath: indigenous land title in Australia”, paper presented at the International Colloquium on Property Law at the Threshold of the 21st Century, Maastricht, The Netherlands, August 1995.

¹⁰⁹ In Nyali v. Attorney General [1952] 1 Q.B. 15, for example, the colonial courts propounded the “Act of State” doctrine under which colonial officers in the African colonies or protectorates were protected from the consequences of failure to carry out their duties properly, in accordance with the law.Google Scholar