5. Protection of Property Rights
Property rights are enforced in Botswana. The World Bank ranks Botswana 82 out of 190 in the Registering Property category. There are three main categories of land in Botswana: freehold, state land, and tribal land. Tribal and state land cannot be sold to foreigners. There are no restrictions on the sale of freehold land, but only an approximate five percent of land in Botswana is freehold. All minerals in Botswana, even those on private lands, are viewed as property of the State. In the capital city of Gaborone, the number of freehold plots is limited. In 2019, the GoB increased the rate of Transfer Duty on the sale and transfer of property to non-citizens (both individuals and companies) from five percent to 30 percent.
State land represents about 25 percent of land in Botswana. On application to the Department of Lands, both foreign-owned and local enterprises registered in Botswana may lease state land for industrial or residential use. Commercial use leases are for 50 years and residential leases are for 99 years. Waiting periods tend to be long for leasehold applications, but subleases from current leaseholders are available. In 2014, the GoB changed its implementing regulation to allow companies with less than five employees to operate in residential areas if their operations do not pose a health or safety risk to residents.
Tribal land represents 70 percent of land in Botswana. To obtain a lease for tribal land, the investor must approach the relevant local Land Board. Processes are unlikely to be streamlined or consistent across Land Boards.
Since independence, the trend in Botswana has been to increase the area of tribal land at the expense of both state and freehold land. Landlord-tenant law in Botswana tends to be moderately pro-landlord.
In addition to helping investors who meet its criteria obtain appropriate land leaseholds, BITC has also built factory units for lease to industrialists with the option to purchase at market value.
Intellectual Property Rights
Botswana’s legal intellectual property rights (IPR) structure is adequate, although some improvements are needed. The key challenge facing the GoB is effective implementation. CIPA was established in 2014 and is comprised of three offices: the Companies and Business Office, the Industrial Property Office, and the Copyright Office. Intellectual property is registered through CIPA. This organizations’s priorities n are to strengthen and implement Botswana’s IPR regime and improve interagency cooperation. IPR infringement occurs in Botswana primarily through the sale of counterfeit items in low-end sales outlets. According to CIPA, targeted raids by local law enforcement have reduced the availability of counterfeit goods across the country. In 2019, CIPA and the Botswana Police Service seized 3,888 counterfeit CDs and DVDs valued at USD 30,000 compared to nearly 13,000 counterfeits valued at over USD 107,000 seized in 2017. The U.S. government continues to work with the GoB to modernize and improve enforcement of IPR.
IPR is protected under the Industrial Property Act of 2010, which provides protections on patents, trademarks, utility designs, handicrafts, traditional knowledge, and geographic indicators. The 2000 Copyright and Neighboring Rights Act also protects art and literary works, and the 1975 Registration of Business Names Act oversees corporate name and registration procedures. Other IPR-related laws include the Competition Act, the Value Added Tax Act, the Botswana Penal Code, the Customs and Excise Duty Act, the Monuments and Relics Act, the Broadcasting Act, and the Societies Act.
Botswana is not included in the United States Trade Representative (USTR) Special 301 Report or the Notorious Markets List.
Botswana is a signatory to the Beijing Treaty on Audiovisual Performances, the Hague Agreement Concerning the International Deposit of Industrial Designs, the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, the Convention establishing the World Intellectual Property Organization (WIPO), the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, the Patent Cooperation Treaty, the Berne Convention for the Protection of Literary and Artistic Works, and the Paris Convention for the Protection of Industrial Property.
For additional information about treaty obligations and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/ .
Resources for Rights Holders
Local lawyers’ list: https://bw.usembassy.gov/u-s-citizen-services/local-resources-of-u-s-citizens/attorneys/