The changing dynamics of customary land tenure: Women’s access to and control over land in Botswana

• Jurisdiction: South Africa
• Date: 15 August 2019
• Pages: 83-113
• Author: Anne Griffiths
• Published date: 15 August 2019
• Citation: 2011 Acta Juridica 83

The changing dynamics of customary land

tenure: Women’s access to and control

over land in Botswana

ANNE GRIFFITHS*

This contribution examines women’s access to and control over land in

Botswana. It explores the dynamics creating a transformation in women’s

relationship to land that have come about over time. These include better

education and formal- and informal-sector employment that have enabled

some women to be more proactive, along with a shift in social attitudes

towards the role of women in society.The article highlights the importance of

family networks in promoting women’s acquisition, development and control

of land, revealing diverging trajectories based on family – or genealogical

histories that ref‌lect processes of social stratif‌ication within the country.

I INTRODUCTION

Access to and control over land is crucial to national development for

countries in southern Africa, as well as for the economic and social

well-being of these countries’ citizens. Within Africa, rights to land have

always been the subject of contestation, fuelled by changes in demogra-

phy, the mobility and density of populations, and economic develop-

ment. A key resource for family and household livelihood, land has been

the subject of ongoing debate, especially in the broader context of nation

building and development. In engaging with these debates there is a need

for empirical data to inform discussions that are taking place, especially

with regard to policymaking in this area. Such data are important because

they provide concrete evidence about the way in which land is dealt with

in daily life, evidence that may be used to assess prevailing normative or

ideological assertions that underpin the promotion of land tenure

reform.

1

In recent years land has been linked, more broadly, with the

alleviation of poverty strategies adopted by international agencies, such as

the United Nations (UN), World Bank and the United Kingdom’s (UK)

* Professor of Anthropology of Law in the School of Law, Edinburgh University. The

author is indebted to the IGK International Research Centre on Work and the Human Life

Cycle in Global History, Humboldt University, Berlin, where she was able to work on this

article as senior research fellow.

1

See past debates on the pros and cons of individual, registered title to land compared with

unregistered, communal tenure under customary law: A Griff‌iths ‘Making gender visible in

law: Kwena women’s access to power and resources’ in A Hellum et al (eds) Human Rights,

Plural Legalities and Gendered Realities: Paths areMade by Walking (2007) 139.

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2011 Acta Juridica 83

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Department for International Development (DfID).

2

For, in recognising

that women and children feature disproportionately among the poor,

3

these agencies have expanded the concept of poverty to include not only

material deprivation but also powerlessness and vulnerability, in order to

uphold the principles of good governance and accountability that under-

pin development. In doing so, they have acknowledged the need to take

account of traditional or ‘informal’justice (that is generally associated with

oral, unwritten forms of ordering derived from customary law), on the

grounds that ‘informal’ justice is an important phenomenon worldwide,

which in sub-Saharan Africa deals with about 80 per cent of disputes.

4

In

dealing with access to justice land cannot be ignored, for it has been

identif‌ied in the 2008 Report of the Commission on Legal Empower-

ment of the Poor

5

as one of the four pillars of legal empowerment.

General observations, however, need to be substantiated by concrete

data. In this contribution I explore women’s access to land in Botswana

and the changes that have ensued over time. Based on f‌ield research I

carried out in the 1980s,

6

and in 2009–2010, under a grant from the

Leverhulme Trust, the contribution examines the factors that have led to

a situation where women are now clearly represented in land transactions.

These factors derive from institutional, legal and social transformations,

brought about in part by the role played by NGOs. They include better

education and informal- and formal-sector employment that have

enabled some women to be more proactive, along with a shift in social

attitudes towards women’s role in society that is harder to def‌ine but

stands in marked contrast to views expressed in my earlier research. This

earlier research highlighted the diff‌iculties that women faced in gaining

access to and control over resources, including land. These diff‌iculties

derived from the gendered position women occupy within kinship

networks and from the economic, political, ideological and social

domains that shape the world in which they live. Understanding the

transformations that have taken place and the social dimensions of change

is important, but it is something that is often overlooked by international

donors. For donors have a tendency to focus on reforming laws and

institutions without having a clear grasp of how these interact with the

2

World Bank World Development Report 2006, Equity and Development (2005); Programming

for Justice: Access for All (2008) Guidance Note on Early Recovery; DfID, Policy Division (2004)

Non-State Justice and Security Systems. Guidance Note, (2008) Justice and Accountability.

ADfID Practice Paper; SIDA, (2002) Swedish Development Cooperation in the Legal Sector.

3

T Ruzvidzo & H N Tiagha ‘The African Gender Development Index’ in C van der

Westhuizen(ed) Gender Instruments in Africa (2005).

4

L H Prion ‘Donor assistance to justice sector reform in Africa: Living up to the new

agenda?’(2005).

5

Commission on Legal Empowerment of the Poor Making the Law Workfor Everyone (2008)

vol 1.

6

AGriff‌iths In the Shadow of Marriage: Gender and Justice in an African Community (1997).

84 PLURALISM AND DEVELOPMENT:STUDIES IN ACCESS TO PROPERTY IN AFRICA

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