The Government of Botswana and the Balete tribe’s fight over Kgale Farm has finally ended. A question on who owns the land was mediated and adjudicated by a panel of three judges: Judge Michael Mothobi, Judge Mokwadi Chris Gabanagae, and Judge Gabriel Gadzani Komboni.
The government has been pushing for the cancellation of the title deed covering a portion of Farm Forest Hill 9-KO owned and managed by the tribe, while the latter insists it is the rightful owner.
According to court documents, the dubious land in question dates back to 1925 when Balete bought a farm known as Forest Hill 9-KO for investment purposes. The tribe contributed to raising the 3,000 Sterling Pounds required to purchase the land from Aaron Siew. To this day as Balete claim the title deed is in the name of Kgosikgolo for and on behalf of the tribe. At the helm of the case against the government was Balete Paramount Chief Kgosi Mosadi Seboko.
Malete Land Board, acting on behalf of government, slapped Kgosi Mosadi Seboko and the Gamalete Development Trust with a lawsuit for the title deed of the land in question. The land board claims that upon acquiring the land, it will be turned into a commercial site. On the other hand, Balete could not allow this to happen without reimbursement, arguing that Balete already do not have enough land for residential purposes.
The Land Board’s case is that the acquisition of the contested farm was not unconstitutional because it was done with the consent of the tribe by own admission in a previous court case relating to the same issue.
According to the government, which has been trying to cease the tribe’s ownership of the farm through the Malete Land Board by cancelling its title deed, it admitted that subsequent to the introduction of the land boards, the tribe was the one that requested the State to manage its various farms.
“The land was incorporated into the Bamalete Tribal Territory at the request of the tribe and under an amendment of the Tribal Territory Act of 1973,” read part of the documents.
The government has explained that the incorporation of the property as part of the Bamalete Tribal Territory was effected with the consent and agreement of the tribe.
“Indeed it was initiated by the board which was chaired at the time by the Kgosi of the tribe”, read the documents.
Moreover, the tribe said the Board itself has historically treated the land as the tribe’s freehold property noting that even in their previous court case with the State, the Board admitted in its documents.
Senior counsel Nigel Redman represented the government while Oteng Motlhala who instructed advocates senior counsel Geoff Budlender and Mitchell De Beer represented the Balete tribe.
Meanwhile, land owners in Kgatleng petitioned President Mokgweetsi Masisi over grumbles with the Kgatleng Land Board. Disgruntled land owners also reported the Ministry of Land Management, Water and Sanitation Services and Kgatleng Land Board to the Police for violating the Town and Country Planning Act.
Land owners petitioned President Masisi on account that: he issued a Presidential Directive in May 2019, which was then confirmed by Ministry Permanent Secretary, Bonolo Khumotaka, in October 2019, who then issued guidelines to achieve the same. Further, in September 2020, Kgatleng Land Board issued a Moratorium on the receiving and consideration of change of use applications in Oodi Subordinate Land Board Area of jurisdiction.
They said in their petition that in September 2020, a notice was issued from the same Ministry, gazetting the whole of Kgatleng as a planning area. Permanent Secretary Khumotaka in October 2020 issued a savingram to all land board secretaries titled ‘Proposals of Development of Agricultural Land’.
Petitioners say, government moved to revoke in principle leases that reflect a change of land use on agricultural land especially where there are subdivisions that yield plot sizes lower than 1 hectare.
Land boards and planning authorities suspended all issuance of leases for change of land use and subdivision, they said in their petition. They indicated that government refused the approval of survey diagrams that pertain to change of land use and subdivision of agricultural land.
Land owners argue that “there are too many instances to quote of preferential treatment by Kgatleng Land Board, wherein they reject, revoke or they defer indefinitely applications and in the same breath approve similar or even identical applications. This practice of nepotism by the authorities of favouring one citizen over the other is unlawful and must be challenged to the fullest extent of law.”
Furthermore, land owners say these practices are a violation of Schedule 2 of Section 19(4) of the Town and Country Planning Act, and also suspends indefinitely the provisions of Section 22 of the Tribal Land Act. It is said this is a violation of the Presidential Directive and the guidelines amending the Development Control Code at Section 5(4), 6(2) and Section 8.
“The Kgatleng Land Board under the pretext that Oodi Sub Land board has no authority to preside and authorize change of land use have since suspended further land developments in Kgatleng of Agricultural land on that account.”
Former High Court Judge Professor Key Dingake has made his opinion known about gay rights in a glowing tribute to his retired former colleague Justice Ian Kirby.
Late last month a panel of Court of Appeal (CoA) led by Judge Kirby upheld a 2019 High Court ruling that decriminalised same-sex relations and stroke down two sections in the penal code. In his seminal judgment, Justice Kirby said these sections served only to incentivize law enforcement agents to become keyhole peepers and intruders into the private space of citizens.
In this case one Letsweletse Motshidiemang, a homosexual had instituted an application in the High Court challenging the constitutionality of Sections 164 (a) and 164 (c).
Paying tribute to Justice Kirby, Justice Dingake said overall the Kirby court was restrained and brilliant in its genre of conservatism. Judge Dingake said the case of Motshidiemang is evidence of the latter. “In a stroke of a pen, he ended the long and tortuous road to equality of gay people.
I was reminded of this long and tortuous road by a piece written by, Zackie Achmat, that indefatigable human right defender, recently, when he reflected on a union of gay men, one Khoi and the other a Dutch sailor, way back in 1735, who for their love for each other were brutally murdered,” Justice Dingake said.
He said in truth Botswana’s Constitution never denied the right to equality for gay men. It was society and the judges who did – some arguing that the time is not right to extend equality rights to gay persons – forgetting the self-evident truth that we are all born equal and that rights are not negotiable – not even with Judges.
“It ought to be remembered that the Motshidiemang case was similar to the case of Kanani that preceded it. Justice Kirby was part of the panel that sat in Kanani. In Kanani he agreed with the other Justices and refused to strike down the offensive legislation. The same legislation he struck down in Motshidiemang.
There is no doubt in my mind that Kanani was wrongly decided at the time, as several of my writings thereafter contended, having regard to the legal injunction to always interpret constitutional rights liberally and to treat the constitution as a living organism,” Justice Dingake wrote.
He added that in Kanani the Court of Appeal held back “our march to freedom for more than a decade – and perpetuated the suffering of gay persons as their being was criminalized based on an inaccurate and narrow reading of the Constitution”.
The truth of the matter is that, he said, our Constitution never denied gay persons the rights to equality and the right not to be discriminated against. “Some sections of society (may be the majority) and the bench did so. The bench did so because of the choices they exercised.
They chose to interpret the constitution restrictively, which is not permissible; they chose to be blown away by ‘public opinion’, which was not right, and they chose not read: ‘sexual orientation’, into section 15 of the constitution, which they could have done.”
Botswana’s Constitution he said commands that it be interpreted in a manner that saves humanity from the scourge of indignity – and with a sense of the future – and to secure the rights of generations yet to be born. It is always the duty of Judges to breathe life into the Constitution – and to effect the promise of the Constitution – by among other things rejecting the tyranny of the majority.
“Section 3, the principal section conferring fundamental human rights in Botswana has always been there. It was ignored in Kanani, and thankfully given effect to in Motshidiemang. A big lesson here is the often overlooked fact: Judges matter! Who the Judge is may be life changing in any given matter.
When one considers the decision in Kanani and Motshidiemang, based on similar facts and the diametrically opposed conclusions, one may be given to think that may be: ‘the constitution is what the Judges say it is’, at any given time, as that brilliant luminary judge and scholar, Charles Evans Hughes (1862 -1948) LLD, once ruminated.”
Interestingly, Judge Dingake wrote about homosexuality more than 12 years ago in his book ‘Key Aspects of the Constitutional Law of Botswana’. Justice Dingake expressed his views on what was said then to what was said in the recent judgment.
In that book, he began the debate by stating that homosexual issues are not frequently debate in Botswana. “Empirically, the extent of homosexual tendencies is not known. In any event the phenomenon does not appear to be widespread,” the Judge wrote.
He said serious debate however cropped up sometime around August 1995, after president Robert Mugabe’s much publicized anti homosexuals speech at the Harare International Book Show. Even then, he said, the debate was only confined to a small circle of intellectuals, with the broader community generally contemptuous and not willing to engage in serious debate about the issue.
“Although the intellectual community is by no means unanimous, there are some voices, particularly emanating from the University of Botswana, that are calling for equal treatment for homosexuals. Despite the enormous capacity of such arguments to court controversy general response of the public was one of cynicism. This general lack of interest among the general populace contrasts sharply with the enthusiasm and interest on the issue, just across the border, in South Africa, where there are numerous homosexual associations,” he said.
He explained that the South African Constitution prohibits discrimination on the basis of sexual orientation, which has paved the way for homosexuals to be employed in the army, an advance that is unparalleled in modern democracies. He also explained that Botswana’s criminal law prohibits consenting adults of the same sex from having a sexual relationship, because that is said to be unnatural.
“Within the framework of Botswana’s Constitution there can be no doubt that the prohibition of sexual relationships between consenting male adults of the same sex is unconstitutional. No free society can, in this era, afford to treat its citizens differently on the basis that is patently irrational.
Every individual, is in terms of the Constitution equal before law and has the right of equal benefit of the law without discrimination. The legal recognition of homosexuals will confirm Botswana as a democratic country that is advancing with time.”
He added that it needs to be said that it is however fruitless to bury “our heads in the sand and hope the issue will disappear for good”. He concluded: “In time we will have to confront the issue head on. In time blind prejudice that stigmatizes homosexual relationships will have to stand up to rational scrutiny. It is advisable not too turn a blind eye to the pain of discrimination suffered by few of our fellow countrymen and women. In a democracy it is unacceptable that the majority should oppress the minority”.
Consumers could pay more for electricity this year, as the government owned power producer, Botswana Power Corporation (BPC) plans to increase prices for electricity by 5% with effect from the 1st of April 2022.
BPC recent statement on tariff adjustment shows that with the planned 5% increase in electricity tariffs, electricity prices per kWh could increase by 111 thebe for household users, 226 thebe for government, 148 thebe for commercial businesses and 111 thebe for the mining sector.
Botswana economy is registering growth as the country emerges from one of its worsts economic recessions since independence, following the outbreak of COVID-19 pandemic.
In late December 2021 Statistics Botswana released the country’s Gross Domestic Product (GDP) figures for the third quarter of 2021.
The nominal GDP for the third quarter of 2021 was P49, 260.5 million compared to P48, 684.0 million registered during the previous quarter. This represents a quarterly increase of 1.2 percent in nominal terms between the two periods.