ABSTRACT
Several countries in southern Africa have plural or multi-layered land tenure systems under which land is classified as private or freehold land, customary or tribal land and state land or public land. Private land and public land were appropriated from customary land almost at the onset of colonial rule. Private land was land appropriated from the customary pool for occupation and use by settlers of European descent, under forms of tenure then unknown to indigenous communities, such as leases, freehold rights or rights of ownership. In countries with larger settler communities, most of the land suitable for commercial agriculture fell into this category. State or public land is land originally appropriated for government use by colonial authorities, and passed on to succeeding governments at independence. State land in some of the countries is also the residual land category, encompassing all land that may not be classified as private or customary land. In yet other countries in sub-Saharan Africa, radical title to customary land may be vested in the state, thus blurring the distinction between these two categories. In southern African countries with a significant settler presence, one of the
most difficult and intractable land tenure problems has for long been reclamation of some private or freehold land from settler control, so that commercial agricultural production may be indigenized. In some political and other circles, the problem is accentuated by constitutional constraints passed on at independence, particularly those requiring payment of adequate or fair compensation for expropriation of land required for public purposes. This work attempts a textual description and analysis of property guarantees in the Constitutions of several southern African countries, namely: Botswana, Namibia, South Africa and Malawi. Botswana is one country in the region that has not seen fit to overhaul the Constitution under which political independence was negotiated and attained in 1966. Are the property guarantees in Botswana’s Constitution quintessential examples of the problem alluded to above? As some clamour for accelerated land reclamation and redistribution in southern Africa, unimpeded by obstructive legal and constitutional devices, others contend, perhaps not so loudly, that land problems must be addressed in a manner consistent with the rule of law. Namibia (1990), South Africa (1993 and 1996), and Malawi (1994 and 1995), are the southern
or human
What can we glean from the property guarantees in these Constitutions, in contrast to what is in the Botswana Constitution? The issue to be broached or determined at the end of these case studies is whether popular political and academic vilification of property guarantee clauses in discourses on land tenure in southern Africa is in order, or whether the proverbial finger of blame for lack of success must point elsewhere.
