PRIOR CONSULTATION AND CONSENT AS NECESSARY CONDITIONS FOR COMPULSORY ACQUISITION OF COMMUNAL LAND IN BOTSWANA- THE GA-MATELE TRIBE AND FOREST HILL

 PRIOR CONSULTATION AND CONSENT AS NECESSARY CONDITIONS FOR COMPULSORY ACQUISITION OF COMMUNAL LAND IN BOTSWANA- THE GA-MATELE TRIBE AND FOREST HILL

ES Nwauche (Prof)

The nature of the title held by indigenous African communities over their communal land tenure has appeared tenuous and at the mercy of the State that could, in the exercise of its eminent domain, expropriate such property and, at best, be liable to pay constitutionally sanctioned compensation. The requirement that such expropriation requires the consent of the indigenous community appeared far-fetched in many African countries. Botswana is an outlier and reformed her communal land tenure through legislative schemes in the early seventies by recharacterizing tribal land into state land with the consultation and consent of Batswana Tribes. That process of nationalization may have led State officials to believe that it is a continuous process and that all Tribal Land that, for one reason or the other, was not included in the nationalization process of the early seventies automatically became State land at the behest of the State and at best, entitles the holder of such property to compensation. To imagine otherwise, so that Tribal Land that was not part of the first nationalisation process is another possibility that better protects Batswan indigenous communities. Thus the consultation with and consent of the Tribe to such acquisition would be essential for the constitutional validity of expropriation legislation. It is now the law that consultation with and consent of an indigenous community is critical because of a recent majority decision of the Botswana Court of Appeal in Attorney General of Botswana v Seboko (Court of Appeal Civil Appeal No. CACGB-153-21 of 7-03-3023). The Court of Appeal held that the purported acquisition through a 1973 amendment to section 7 of the Tribal Land Act 1970, on which the Malate Land Board on behalf the Botswana government, argued had acquired part of the Ga-Matele Tribal Land amounted to an unconstitutional deprivation of property because it breached sections 3(c), 8 and 15 of the Botswana Constitution. The Ga-Matele Tribe purchased the land in question in 1925 to address the shortage of land for grazing purposes. A deed of transfer was registered in the Deeds Registry in favour of the Tribe. It is common cause that during Botswana's communal land tenure nationalisation, part of Forest Hill in contention was not part of the land transferred to the Matele Land Board. After the nationalisation process, the Ga-Matele Tribe requested the Matele Land Board to manage its property which continued until 2003, when the Tribe resolved to take over the management of this property and registered a trust to that effect. After establishing and commencing the Trust, the Tribe began negotiations with the Government of Botswana for the possible purchase of part of Forest Hill covered by the Trust. A High Court matter instituted by the Matele Land Board, argued that the Deed of Transfer in favour of the Trust was invalid because the tenor of Botswana’s legislative scheme vested the land in question in the Malete Land Board. The High Court and the Court of Appeal agreed with Ga-Matele Tribe that the legislative scheme through which the State assumed ownership of Tribal Land outside the 1970 legislative schemes amounted to compulsory land acquisition because of the lack of consultation and consent to such takings. The import of the decision of Botswana Court of Appeal is enhanced protection of the communal land of Batswana indigenous communities.  

The fact that consultation and consent of the indigenous community property owner are essential to the validity of a legislative expropriation of property is significant and an improvement to the widely held view that payment of compensation discharges the duty of the State in compulsory acquisition. The decision of the Botswana Court of Appeal is hugely significant as an encouragement to other African judiciaries to find that the consent of indigenous African communities is vital to the validity of all administrative and legislative acquisition of their property.