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Botswana (2019)

Relevant Legislation


i. Tribal Land Act of 1968

  Under this Act, the Land Board was established as an institution for managing all tribal/customary land. The Land Board grants customary land rights to citizens of Botswana. The Land Board also leases land under common law forms of tenure. Part V of the Act specifically addresses procedures for dealing with the application of expropriation for tribal land required for public purposes. Section 32 of the Tribal Land Act provides that land may be granted to the state for public purposes only if the president determines that the purpose for which it is acquired is in the interest of the public. The President possesses power of the eminent domain for expropriation of land. The president may acquire any real (immovable) property where the acquisition of such is necessary for public purposes. Section 33 (2) of the Tribal Land Act (1968) provides that compensation is payable when land is acquired for a project and the acquiring body is financially responsible for all aspects of the project; this includes payment for compensation to claimants. The displaced person may be granted the right to use other land if available and is entitled to adequate compensation.

In accordance with this Act, Roads Department approached Ngwaketse and Rolong Land Boards through respective Sub Land Boards to seek servitudes for their proposed road alignments. The respective land authorities (Sub Land Boards) consequently constituted compensation assessment committees for purposes of assessment and valuation of affected properties. Following approval of the valuation reports, PAPs were compensated in accordance with the compensation guidelines and eligibility requirements.

ii. Tribal Land (Amendment) Act (Cap.32:02 of 1993)

The Act allows for determination of land use zones in tribal areas. According to the Act, a Land Board shall after due consultation with the District Council determine and define land use zones within a tribal area. The Land Board shall not make grants of land for any use which is in conflict with the use for which land is zoned. Land Boards may determine management plans for use and development of the zones.

In both Packages 1 and 2, all the affected properties were in conformity with the zoning requirements of the land authorities (Sub Land Boards). Hence, there were no land use conflicts.

iii. Environmental Assessment Act of (2011)

The EA Act provides for Environmental Impact Assessments to be used to assess the potential effects of planned development activities; to determine and to provide mitigation measures for effects of such activities as may have a significant adverse impact on the environment; to put in place a monitoring process and evaluation of the environmental impacts of implemented activities; and to provide for matters incidental to the foregoing. Only after the competent authority, the DEA, has approved the Environmental Impact Statement can the project proceed.

For the undertaking of environmental studies in compliance with the EA Act (2011), the Environmental Assessment Guidelines (2012) have been developed. These guidelines clearly outline the activities to be undertaken during each of the assessment stages, as well as the information and format to be submitted to the DEA for review.

In fulfilment of the EA Act, the Roads Department commissioned an EIA for the proposed project. The EIA process considered the pre-construction, construction and post construction impacts and mitigations. The EIA reports for the 2 packages were subsequently prepared and approved by the competent authority (Department of Environmental Affairs) thus paving way for the project. The Environmental Management Plan is currently being implemented through the road construction contractor.

iv. Monuments and Relics Act 2001

All archaeological sites and to some extent historic sites are protected under the Monuments and Relics Act (2001). This Act requires that Archaeological Impact Assessment (AIA) is undertaken for all major development projects and that a Development Permit is obtained from the National Museum before any construction can take place. Section 18 prohibits any alteration, damage or removal from original site of any national monument, relic or recent artefacts. Section 19 of the Act provides for pre-development archaeological impact assessments and mitigation where planned developments are likely to disturb the earth s surface.

In adherence to the requirements of this Act, an AIA was undertaken and development permit issued by the competent authority (Department of National Museum and Monuments) thus paving way for construction.


Relevant Policies

v. Planning and Environmental Impact Assessment of Road Infrastructure, Guideline No. 5 of September 2001

The guideline is used as a guide in the planning and EIA of linear developments, with particular reference to roads. All road project impacts are included in the assessments, both monetary and non- monetary. All significant impacts are described and discussed in order to optimize the benefits of the roads and minimize the adverse effects. The planning and construction of roads is guided by a 5-year National Development Plan (NDP), outlining projects that are to be undertaken during the period of the plan. The guideline sees consultation as necessary for ensuring that the road network is planned and implemented in an accountable and transparent manner.

The EIA process considered the requirements as outlined in this guideline and key amongst them being consultations. Public meetings and invitations for public review were advertised in the print media as required by the EA Act. Proceedings for such meetings are presented in the reports.

vi. Ministry of Land Management, Water and Sanitation Services- Compensation Guidelines

The compensation guidelines are in line with the Tribal Land Act of 1968 and deals with both customary land rights and common law grants. The compensation guidelines were prepared by the Department of Lands in 1977 and revised in 2010. There are three (3) main categories of land in Botswana: customary, freehold and state land. Customary land is administered by the Land Boards and covers over 70% of the total land area.

Freehold land is administered by the Department of Lands through the Attorney Generals Chambers which is responsible for all land transactions. Freehold land entitles the landholder to perpetual and exclusive rights to land and constitutes 5% of the total land area in the country. State land is administered by the Department of Lands and makes up 25% of the land area and comprises National Parks and Wildlife Management Areas (19.4%), Forest Reserves (1%) and all urban land (4.6%).

a.Land Rights and Entitlements

Compensation for tribal land is considered under two categories:

• Customary Land Rights

• Common Law Land Rights

Customary Land Rights Regarding customary land the displaced people are entitled to adequate compensation for the following, where applicable:

• The value of any standing crops taken over by the state

• The value of any improvements effected to such land, including the value of any clearing or

preparation of land for agricultural or other purposes

• The costs of resettlement, and

• The loss of the right of user of such land

NB: The last bullet above refers to where no alternative land is identified or any portion of land taken cannot be replaced. Compensation shall include the value equivalent to loss of right to use that land.


Common Law Land Rights When dealing with leases, there may be complications arising due to the following factors;

  • The lease being registered

  • The lease being mortgaged

  • Subletting of one or more portions of leased property

  • The disruption or closure of business operations

NB Where there are complications, such cases are referred to the Department of Lands. 


Acquisition procedures in the case of leased properties are as follows:

  • The Land Board acquires vacant possession and negotiates the best price. Where the occupier agrees and there is no burden to personal interest, compensation would follow

  • The Land Board may use its powers under the lease to permit construction of pipelines, power lines, roads, drains etc. for public purposes. Compensation is paid only for direct damage to improvements, nuisance and for any land taken for the above servitudes and cannot be replaced

  • The Land Board may exercise its right to terminate the lease as provided for in the lease agreement in which case adequate compensation is payable.


Other Cases. Where fixed costs which are compensated can in fact be salvaged and transported to the alternative site, then removal costs shall be payable based on the actual costs incurred or 10% of the total compensation sum per affected household, taking the higher value.

In the case of existing business operations, the following situations are also covered:

  • Loss of goodwill

  • Injurious affection and severance where access or other conditions are changed

  • The loss sustained by reason of moving to an alternative site (disturbance)



Land Acquisition Procedures

When government or a statutory body undertakes a project, which is of national importance and the only land suitable for that project is already occupied, the President shall determine in accordance with Section 32 of the Tribal land Act that it is in the public interest that the land be acquired for the project. When such land is taken, compensation is payable as per Section 32 (2) of the Tribal Land Act. The Acquiring body is responsible for aspects of the project including payment of compensation direct to the claimants. National projects include new airports, power stations, dams, schools, roads, village expansions etc.

The compensation guidelines require that the acquiring body informs the relevant Land Board of its intention at least six months prior to commencement of the project, both of which shall consult the affected parties as appropriate and specified in the guidelines.


The required consultation shall involve the District Land Use Planning Unit (DLUPU), District Council, as well as Department of Environmental Affairs (formerly National Conservation Strategy Unit). In accordance with the guidelines, the Land Board shall in the case of big projects insist that an Environmental Impact Study be commissioned to assess the project’s implications. The results of the study are to be used as a factor in deciding the nature of the development and enable the Land Board to state the appropriate conditions under which the application may be approved. The identification of amelioration measures to overcome the suggested impacts should be included in a programme for compensation.

In the event of acquisition of already occupied tribal land, Regulation 15 of the Tribal Land Regulations of 1970 is invoked. The acquiring authority with the assistance of the Land Board, make reasonable effort to identify and contact all occupiers within the zoned land. If deemed necessary, the Land Board shall request for a kgotla (community) meeting to advise the people of the scheme and their rights.

The views of the affected communities are documented to ensure that they are taken into consideration when a decision to implement the project is made. Using an Environmental Impact Study, DLUPU or the National Steering Committee should give an early recommendation, in principle, to the Land Board, which then forms the basis of subsequent detailed recommendations.

Once it has been decided to proceed with the project the compensation assessment committee conducts a physical inspection recording all the details of all improvements to the land and any other fixed assets affected within the zoned area. The inspection report is the basis upon which compensation is assessed. The assessment committee invites the various affected occupiers to submit any additional or counter claims for their improvements if they so wish. Some claimants may engage the services of professionals and should be given time to do so. The compensation assessment committee then meets to discuss and agree on the appropriate rates of compensation.

Compensation rates are reviewed yearly and for improvements they are based on depreciated replacement value. Where only part of the land is required and the part remaining cannot be used by itself because of size, access or negative impact of the project, the assessment report gives full details as the acquiring authority may be required to take the whole land and pay compensation for improvements.

The Land Board should consider the compensation assessment and submit its recommendations to the Department of Lands for checking and adjustment where necessary. The Department of Lands then advises the acquiring authority of the approved report. The acquiring authority then immediately releases payment directly to claimants. In the case of emergencies, an order is issued by the Minister of Lands and Housing to the effect that people should vacate their land before compensation is paid with commitment by the acquiring authority for full compensation at a subsequent date with interest. In the event of the applicants being dissatisfied with the compensation assessment, they are advised to appeal to the Minister of Lands and Housing who may then appoint an arbitrator in accordance with section 25 (2) of the Tribal Land Act, Cap. 32:02. The claimants have the right to take the appeal to Court if they so wish.

NB Section 40 of the Tribal Land (Amendment) Act of 1993 provides for the establishment of the Land Tribunal to assume the responsibility of the Minister in adjudicating on these appeals.

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