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Court of Appeal decision on novel land applications is a welcome relief

PRIMA FACIE
 

It is not uncommon to meet many Batswana who have been frustrated by a Land Board in one way or the other. Common complaints are about,delays in processing land applications,double allocations,allegations of corrupt allocations to list a few.
 

Land Boards were established in terms of the Tribal Land Act of 1970 Cap 32:02. The Act came into effect on the 30th Of January 1970.Prior to the establishment of Land Boards, communal land (tribal land) was held and administered on behalf of the Tribe by a Chief.
 

The coming into effect of the Tribal Land Act thus vested land control and administration onto Land Boards. Section 10 of the Tribal Land Act is of great significance. It reads as follows “All rights and title to land in each tribal area listed in the first column of the first schedule shall vest in the land board set out in relation to it in the second column of the schedule in trust for the benefit and advantage of the citizens of Botswana and for the purpose of promoting the economic and social development of all the peoples of Botswana”.
 

The effect of this section was to transfer all tribal land control to land Boards.The second effect of the Section was to ensure that every Motswana irrespective of their origin had a right to apply for tribal land in any part of the country.The third and significant effect of the Section was to dress the land board with the power to manage the land for the economic and social development of Botswana.
 

Surprisingly Land Boards are slow to give effect to this Section.The Tribal Land Act makes it easy for a Land Board to achieve this mandate.Section 11 of the Act gives the Land Board authority to consult with the District Council for purposes of the formulation of Policy which would give effect to its mandate.
 

The complaints about the failure of the Land Board to exercise its core function under section 10 were addressed as far back as 2001.Part of Justice Kirby’s speech in Ker & Downey(Botswana) V The Land Tribunal and Another 2001 volume 2 of the Botswana Law Reports is captured as follows  “The Tribal Land Act as a whole is in my judgment designed to promote the fair and equitable distribution of tribal land in Botswana. For example the land is "held in trust for the benefit and advantage of the   citizens of Botswana" (section 10), that is, for all the citizens of Botswana without exception, and customary land grants may be cancelled "to ensure the fair and just distribution of land among the citizens of Botswana" (section 15(c)). I hold that it was also entirely legitimate for the and board to have regard to and give due weight to the fact that the appellant was operating two other sites, while Heart and Soul had none. This also serves to "promote the economic and social development of all the peoples of Botswana" as required by section 10 of the Act.”
 

A common complaint arises out of Land Grants issued following a tender process.Applicants complain of over-reliance on technicalities.Interestingly Kirby addressed this issue in the following terms “The land board is given the discretion by law to grant leases over land which is vested in it. In doing so it is entitled to lay down conditions to be adhered to by persons wishing to apply for leases, whether by tender or otherwise. The Tender Procedures Document commences with the words: "The following are the procedures to be followed by companies wishing to tender for any of the lodge and campsites . . ."
 

It continues as follows:
 

  "This document shows the requirements for allocation, the documents prospective tenderers are required to submit and outlines the allocation process.")The General Guidelines referred to earlier, and supplied with the Tender Procedures, state than:     "The tendering process is subject to the terms, conditions and stipulations as contained in the 'Tendering Procedures ..' which forms part of the documentation issued. Tenderers that do not adhere to these terms, conditions and stipulations will be disqualified." Here it is clearly stated that in the case of the tenderer, non-compliance will be visited by disqualification. The drafters of the procedures intended that they should be obligatory insofar as the tenderer is concerned.
 

The position is entirely different with regard to the land board. The document is stated only to "outline the tender process". Moreover, the document must be interpreted as a whole, and clause 11 of the tender procedures provides that "The    appropriate Land Authority is not bound (the emphasis is mine) to accept the highest land rental offered, the highest scoring technical proposal or any technical proposal or tender . . ."If the land board is not bound to accept any tender, then it retains its unfettered discretion to accept or reject any tender after full consideration of its merits, and clause 8, with its almost formulaic approach can represent no  more than guidelines to be followed in appropriate circumstances.”
 

It is thus important for Land Boards to at all times consider the merits of an application before it.The Court of Appeal has recently expanded on the views expressed in the Ker & Downey case.In Ngwato Land Board V Philimon Autwetse CAHFT-000002-11, the Court emphasised the importance and relevance of Section 10 of the Act.

 

Writing for a unanimous bench made up of Lesetedi JA and Brand JA, Justice Gaongalelwe made the following profound remarks “In terms of the section a Land Board holds land in trust for the benefit and advantage of Batswana and for the purpose of promoting their economic and social development.Every Land Board must learn to accept that with development as envisaged by the section it would be called upon to deal with applications relating to commercial activities of a novel nature never dealt with in the past.

It must accept that with development the young generation would often desire to venture into commercial activities of an enterprising nature.It must always be borne in mind that gone are the days when commercial activities in rural areas and in small villages, in particular, were predominantly confined to general dealers' business,a bar or a bottle store.Failure to keep abreast with society’s ever changing needs would have the undesirable effect of frustrating the would be entrepreneurs who are capable of coming up with ideas that would promote the economic and social development in a particular locality”
 

With this judgement, we have no doubt that the Land Boards have been freed from the shackles of policy.This decision should assist Land Boards to fully achieve their core mandate under the Act.Over-reliance on technicalities and policy are in violation of Section 10 of the Tribal Land Act.The Minister might also have been saved all the trouble of having to explain himself had somebody at Kgatleng Land Board looked up Section 10 of the Tribal Land Act!

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Opinions

Internal party-democracy under pressure

21st June 2022

British novelist, W. Somerset Maugham once opined: “If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too.”

The truism in these words cannot be underestimated, especially when contextualizing against the political developments in Botswana. We have become a nation that does not value democracy, yet nothing represent freedom more than democracy. In fact, we desire, and value winning power or clinging to power more than anything else, even if it harms the democratic credentials of our political institutions. This is happening across political parties — ruling and opposition.

As far as democracy is concerned, we are regressing. We are becoming worse-off than we were in the past. If not arrested, Botswana will lose its status as among few democratic nations in the Africa. Ironically, Botswana was the first country in Africa to embrace democracy, and has held elections every five years without fail since independence.

We were once viewed as the shining example of Africa. Those accolades are not worth it any more. Young democracies such as South Africa, with strong institutions, deserves to be exalted. Botswana has lost faith in democracy, and we will pay a price for it. It is a slippery slope to dictatorship, which will bring among other excess, assault on civil liberties and human rights violations.

Former President, Festus Mogae once stated that Botswana’s democracy will only become authentic, when a different party, other than the Botswana Democratic Party (BDP) wins elections, and when the President of such party is not from Serowe.

Although many may not publicly care to admit, Mogae’s assertion is true. BDP has over the years projected itself as a dyed-in-the-wool proponent of democracy, but the moment its stay in power became threatened and uncertain, it started behaving in a manner that is at variance with democratic values.  This has been happening over the years now, and the situation is getting worse by the day.

Recently, the BDP party leadership has been preaching compromise and consensus candidates for 2024 general elections. Essentially, the leadership has lost faith in the Bulela Ditswe dispensation, which has been used to selected party candidates for council and parliament since 2003. The leadership is discouraging democracy because they believe primary elections threaten party unity. It is a strange assertion indeed.

Bulela Ditswe was an enrichment of internal party democracy in the sense that it replaced the previous method of selection of candidates known as Committee of 18, in which a branch committee made of 18 people endorsed the representatives. While it is true that political contest can divide, the ruling party should be investing in political education and strengthening in its primary elections processes. Democracy does not come cheap or easy, but it is valuable.

Any unity that we desire so much at the expense of democracy is not true unity. Like W. Somerset Maugham said, democracy would be lost in the process, and ultimately, even the unity that was desired would eventually be lost too. Any solution that sacrifice democracy would not bring any results in the long run, except misery.

We have seen that also in opposition ranks. The Umbrella for Democratic Change (UDC) recently indicated that its incumbent Members of Parliament (MPs) should not be challenged for their seats. While BDP is sacrificing democracy to stay in power, UDC is sacrificing democracy to win power. It is a scary reality given the fact that both parties – ruling and opposition — have embraced this position and believe democracy is the hindrance to their political ambitions.

These current reality points to one thing; our political parties have lost faith in democracy. They desire power more than, the purpose of power itself. It is also a crisis of leadership across the political divide, where we have seen dissenting views being met with persecution. We have seen perverting of political process endorsed by those in echelons of power to manipulate political outcomes in their favour.

Democracy should not be optional, it should be mandatory. Any leader proposing curtailing of democracy should be viewed with suspicion, and his adventures should be rejected before it is too late. Members of political parties, as subscribers of democracy, should collectively rise to the occasion to save their democracy from self-interest that is becoming prevalent among Botswana political parties.

The so-called compromise candidates, only benefits the leadership because it creates comforts for them. But for members, and for the nation, it is causing damage by reversing the gains that have been made over the years. We should reject leaders who only preach democracy in word, but are hesitant to practice it.

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Opinions

The Big Deal About Piracy

21st June 2022
piracy

Piracy of all kinds continues to have a massive impact on the global creative industry and the economies of the countries where it thrives.

One of the biggest misconceptions around piracy is that an individual consumer’s piracy activities, especially in a market the size of Botswana’s, is only a drop in the pool of potential losses to the different sectors of the economy piracy affects.

When someone sitting in Gaborone, Botswana logs onto an illegal site to download King Richard online, they don’t imagine that their one download will do anything to the production house’s pocket or make a dent in the actors’ net worth. At best, the sensitivity towards this illegal pirating activity likely only exists when contemplating going about pirating a local musician’s music or a short film produced locally.

The ripple effects of piracy at whatever scale reach far beyond what the average consumer could ever imagine. Figures released by software security and media technology company, Irdeto, show that users in five major African territories made approximately 17,4 million total visits to the top 10 identified piracy sites on the internet.

The economic impact of this on the creative industry alone soars to between 40 and 97.1 billion dollars, according a 2022 Dataprot study. In addition, they estimate that “illegally streamed copyrighted content consumes 24% of global bandwidth”.

As Botswana’s creative industry remains relatively slight on the scale of comparison to industries such as Nollywood and Nilewood where the creative industry contributes a huge proportion to West and East Africa’s respective GDPs, that does not imply that piracy activities in Botswana do not have a similar impact on our economy and the ability of our creative industry to grow.

When individuals make decisions to illegally consume content via internet streaming sites they believe they are saving money for themselves in the name of enjoying content they desire to consume. Although this is a personal choice that remains the prerogative of the consumer, looking beyond the fact that streaming on illegal content sites is piracy, the ripple effect of this decision also has an endless trail of impact where funds which could be used to grow the local creative industry through increased consumption, and revenue which would otherwise be fed back into Botswana’s economy are being diverted.

“Why can’t our local creative industry grow?” “Why don’t we see more home-grown films and shows in Botswana?” are questions constantly posed by those who consume television content in Botswana. The answer to this lies largely in the fact that Botswana’s local content needs an audience in order for it to grow. It needs support from government and entities which are in a position to fund and help the industry scale greater heights.

Any organisational body willing to support and grow the local creative industry needs to exist and operate in an economy which can support its mandates. Content piracy is a cycle that can only be alleviated when consumers make wiser decisions around what they consume and how.

This goes beyond eradicating piracy activities in so far as television content is concerned. This extends to the importation and trade in counterfeit goods, resale of goods and services not intended for resale across the border, outside its jurisdiction, and more. All of these activities stunt the growth of an economy and make it nearly impossible for industries and sectors to propel themselves to places where they can positively impact society and reinvest into the country’s economy.

So what can be done to turn the tide here in Botswana in order to see our local production houses gain the momentum required to produce more, license more and expand their horizons? While those who enforce the law continue to work towards minimizing piracy activities, it’s imperative that as consumers we work to make their efforts easier by being mindful of how our individual actions play a role in preventing the success of our local creative networks and our economy’s growth.

Whether you are pirating a Hollywood Blockbuster, illegally streaming a popular Motswana artist’s music, or smuggling in an illegal decoder to view content restricted to South Africa only, your actions have an impact on how we as a nation will make our mark on the global landscape with local creative productions. Thembi Legwaila is Corporate Affairs Manager, MultiChoice Botswana

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Opinions

Our Strength is our Unity

18th March 2022
Craig-Cloud

Putin Chose War.  We Remain United with Ukraine.

U.S. Ambassador Craig L. Cloud

This is a dangerous moment for Europe and for freedom-loving people around the world.  By launching his brutal assault on the people of Ukraine, Vladimir Putin has also committed an assault on the principles that uphold global peace and democracy.  But the people of Ukraine are resilient.

They’ve had a democracy for decades, and their bravery is inspiring the world.  The United States, together with our Allies and partners across the globe, will continue to support the Ukrainian people as they defend their country.  By choosing to pay for a war instead of investing in the needs of Russians, Putin’s invasion of Ukraine will be a strategic failure for the Kremlin and ravage the future of the Russian people.

When the history of this era is written, it will show that Putin’s choice to launch an unprovoked, unjust, and premeditated attack left the West more unified and Russia exponentially weaker.

United in Our Response

This will not end well for Vladimir Putin.  Together, the United States and our Allies and partners are taking action to hold Russia accountable.  As a result of unprecedented global sanctions coordination, the United States, the United Kingdom, the European Union, Japan, and Canada have removed selected Russian banks from the SWIFT messaging system and imposed restrictive measures on the Russian Central Bank.

President Biden announced sweeping financial sanctions and stringent export controls that will damage Russia’s economy, financial system, and access to cutting-edge technology.  After Putin began his invasion, the ruble hit its weakest point in history, and the Russian stock market plunged.

Along with the United Kingdom and European Union, the United States imposed sanctions on the architects of this war, including Putin himself.

By moving in close coordination with a powerful coalition of Allies and partners representing more than half of the global economy, we have magnified the impact of our actions to impose maximum costs on Putin and his regime.  In response to Putin’s war of choice, we will limit Russia’s ability to do business in U.S. dollars.

We will stunt Russia’s ability to finance and grow its military.  We will impair Russia’s ability to compete in the global economy.  And we are prepared to do more.

In addition to economic penalties, this week President Biden authorized an additional $1 billion over the $350 million of security assistance he recently approved, and a $650 million in 2021, to immediately help Ukraine defend itself, bringing America’s total security assistance to Ukraine over the past year to $2 billion.

We also stand ready to defend our NATO Allies.  President Biden has coordinated with Allied governments to position thousands of additional forces in Germany and Poland as part of our commitment to NATO’s collective defense.

He authorized the deployment of ground and air forces already stationed in Europe to NATO’s eastern and southeastern flanks:  Estonia, Latvia, Lithuania, Poland, and Romania.  Our Allies have also added their own forces and capabilities to ensure our collective defense.  There should be no doubt about the readiness of the greatest military Alliance in the history of the world:  NATO is more united than ever.

The United States has also coordinated with major oil-producing and consuming countries to underscore our common interest in securing global energy supplies.  We are working with energy companies to surge their capacity to supply energy to the market, particularly as prices increase.

Putin’s Unprovoked and Premeditated War

This was an attack that Vladimir Putin has planned for a long time.  He methodically moved more than 150,000 troops and military equipment to Ukraine’s border.  He moved blood supplies into position and built field hospitals, demonstrating his intentions all along.

He rejected every good-faith effort by the United States and our Allies and partners to address his fabricated security concerns and to avoid needless conflict and human suffering by engaging in diplomacy and dialogue.

Putin executed his playbook exactly as we had warned he would do.  We saw Russia’s proxies increase their shelling in the Donbas.  We saw the Russian government launch cyber-operations against Ukraine.  We saw staged political theater in Moscow and heard outlandish and baseless claims made about Ukraine in an attempt to justify Russia’s aggression.

Russia continues to justify its military aggression by falsely claiming the need to stop “genocide” in Ukraine – despite there being no evidence that genocide was occurring there.  We saw Russia use these tactics before when they invaded Ukraine in 2014 and Georgia in 2008.

And then, at almost the very same moment the United Nations Security Council was meeting to stand up for Ukraine’s sovereignty and forestall disaster, Putin launched his invasion in violation of international law.  Missiles began to rain down, striking historic cities across Ukraine.  Then came air raids, columns of tanks, and battalions of troops, all riding a renewed wave of disinformation and outright lies.

We have been transparent with the world.  We declassified our intelligence about Russia’s plans so there could be no confusion and no cover up.  Putin is the aggressor.  Putin chose this war.  And now his people will bear the consequences of his decision to invest in war rather than in them.

Transatlantic Unity and Resolve Stronger Than Ever

Putin’s goal of dividing the West has failed.  In the face of one of the most significant challenges to European security and democratic ideals since World War II, the United States and our Allies and partners have joined together in solidarity.  We have united, coordinating intensively to engage as one with Russia and Ukraine, provided assistance to Ukraine, developed a broad response, and reaffirmed our commitment to NATO.

Putin has failed to divide us.  Putin has failed to undermine our shared belief in the fundamental right of sovereign nations to choose their destiny and their allies.  And Putin will fail to erase the proud nation of Ukraine.

The next few days, weeks, and months will be incredibly difficult for the people of Ukraine.  Putin has unleashed great suffering on them.  But the Ukrainian people have known 30 years of independence, and they have repeatedly shown they will not tolerate anyone who tries to take their country backwards.

The world is watching this conflict closely, and if Russian forces commit atrocities, we will explore all international mechanisms that could be used to bring those responsible – whether members of the military or their civilian leadership – to account.

Putin’s aggression against Ukraine will cost Russia profoundly, both economically and strategically.  The Russian people deserve better from their government than the immense cost to their future that this invasion has precipitated.

Liberty, democracy, and human dignity are forces far more powerful than fear and oppression.  In the contest between democracy and autocracy, between sovereignty and subjugation, make no mistake:  Freedom will prevail.

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