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.”
Following their loss to the Duma Boko-led lobby in the Botswana National Front (BNF)’s national congress last month, some members of the party are reportedly considering forming a new political party.
According to members, the new party will be formed after they receive a tip-off that the BNF will do all it can to ensure that the aggrieved members do not participate in the 2024 national elections. This will reportedly done through a carefully orchestrated primary elections elimination campaign.
Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.
Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.
She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”
Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.
On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.
“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.
One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.
The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”
The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.
Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.
Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.
The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.
The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.