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 fewer 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. CIPA’s priorities are to strengthen and implement Botswana’s IPR regime and to 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/
7. State-Owned Enterprises
State-owned enterprises (SOEs), known as “parastatals,” are majority or 100 percent owned by the GoB. There is a published list of SOEs at the GoB portal ( www.gov.bw ) with profiles of financial and development SOEs. Some SOEs are state-sanctioned monopolies, including the Botswana Meat Commission, the Water Utilities Corporation, Botswana Railways, and the Botswana Power Corporation.
The same business registration and licensing laws govern private and government-owned enterprises. No law or regulation prohibits or restricts private enterprises from competing with SOEs. Botswana law requires SOEs to publish annual reports, and private sector accountants or the Auditor General audits SOEs depending on how they are constituted. GoB ministries together with their respective SOEs are compelled on an annual basis to appear before the Parliamentary Public Accounts Committee to provide reports and answer questions regarding their performance. Some SOEs are not performing well and have been embroiled in scandals involving alleged fraud and mismanagement. Botswana is not party to the Government Procurement Agreement within the framework of the WTO.
The GOB has committed to privatization on paper. It established a task force in 1997 to privatize all of its state-owned companies and formed a Public Enterprises Evaluation and Privatization Agency (PEEPA) to oversee this process. Implementation of its privatization commitments has been limited to the January 2016 sale offer of 49 percent of the stock of the state-owned Botswana Telecommunications Corporation to Botswana citizens only. In February 2017, the GoB issued an Expressions of Interest for the privatization of its national airline, but progress stopped due to the decision to re-fleet the airline before privatization. In early 2019, President Masisi announced the Botswana Meat Commission was being placed in the hands of a private management company prior to privatization. Conversely, the GoB has created new SOEs such as the Okavango Diamond Company, the Mineral Development Company, and Botswana Oil Limited in recent years. A Rationalization Strategy covering all parastatals has been developed and its implementation will address issues such as duplication of activities, overlapping mandates, and issues of corporate governance. This may finally result in some SOEs being privatized or merged while some may be closed.
8. Responsible Business Conduct
The GoB, some foreign and local firms, and customers, recognized and embraced Responsible Business Conduct (RBC), although Botswana is not an adherent of the OECD’s RBC Guidelines for Multinational Enterprises and has not specified its definition of RBC. Large companies in the mining, communications technology, food supply, and financial services sectors have established RBC programs, sponsor projects, and support local nonprofit concerns. However, the ethos has not taken hold in many smaller firms. The U.S. Embassy worked with the local chamber of commerce, Business Botswana, on the issue of corporate social responsibility and ethical compliance to help enlist companies to sign onto a Corporate Code of Conduct that covers, among other things, conflicts of interest, bribery, political interference, political party funding, procurement and bidding, and issues surrounding residence and work permits. To date more than 300 firms have signed the Code of Conduct.
The Companies Act also sets out the expectations of business conduct and governance for directors and shareholders for both private and public companies. Botswana is not a member of the Extractive Industries Transparency Initiative. Botswana’s Mines and Minerals Act and associated regulations govern mineral contracts and licenses. Botswana’s laws and procedures for awarding mining contracts are fairly well developed. Mining licenses are required to undergo a public comment period before they are awarded, and that rule is followed.
Department of State
- Country Reports on Human Rights Practices;
- Trafficking in Persons Report;
- Guidance on Implementing the “UN Guiding Principles” for Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities and;
- North Korea Sanctions & Enforcement Actions Advisory
Department of Labor
Botswana has a reputation for relatively low corruption levels and a willingness to prosecute corrupt officials. Transparency International ranks Botswana as the least corrupt country in Africa (35th worldwide). Investors with experience in other developing nations describe the relative lack of obstruction or interference by law enforcement or other government agents as among the country’s most important assets. Nevertheless, private sector representatives note rising corruption levels in government tender procurements.
The major corruption investigation body is the Directorate on Corruption and Economic Crime (DCEC). Anecdotal reports on the DCEC’s effectiveness vary. The DCEC has embarked on an education campaign to raise public awareness about the cost of corruption and is also working with GoB departments to reform their accountability procedures. Corruption is punishable by a prison term of up to 10 years, a fine of USD 50,000, or both. The GoB has prosecuted high-level officials. Corruption allegations have surfaced recently around pension fund management and government procurement procedures and are still under investigation.
The 2000 Proceeds of Serious Crime Act expanded the DCEC’s mandate to include combatting money laundering. The 2009 Financial Intelligence Act provides a comprehensive legal framework to address money laundering and establishes a financial intelligence agency (FIA). The FIA, which operates under the Ministry of Finance and Development Planning, cooperates with various institutions, such as Directorate of Public Prosecutions, Botswana Police Service, Bank of Botswana, the Non-Banking Financial Institutions Regulatory Authority, the DCEC, and foreign FIAs to uncover and investigate suspicious financial transactions. Botswana is a member of the Eastern and Southern Africa Anti-Money Laundering Group, a regional standards-setting body for ensuring appropriate laws, policies, and practices to fight money laundering and the financing of terrorism. In October 2018, Botswana was “grey-listed” by the Financial Action Task Force and is currently implementing an action plan to address shortcomings that led to the listing.
UN Anticorruption Convention, OECD Convention on Combatting Bribery
Botswana is not a party to the OECD Anti-Bribery Convention, but it is a party to the 2005 United Nations Convention against Corruption.
Resources to Report Corruption
Contacts for agencies responsible for combating corruption:
Mr. Tymon Katlholo
Directorate on Corruption and Economic Crime
Madirelo Extension 6, Gaborone, Botswana
+267 3914002/+267 3604200
Mr. Kgakgamalo Ketshajwang (Acting)
Public Procurement and Asset Disposal Board
Private Bag 0058, Gaborone, Botswana
Dr. Abraham Sethibe
Financial Intelligence Agency
Private Bag 0190, Gaborone, Botswana
Complainants can also reach out to ministers of the relevant ministries for a particular tender and provide a copy of the complaint to the Public Procurement and Asset Disposal Board (PPADB) Executive Chairperson.
10. Political and Security Environment
The threat of political violence is low in Botswana. Public demonstrations are rare and seldom turn violent. The last large-scale strikes which involved public sector employees occurred April-June 2011 and were not violent. In September 2015, roughly 200 people participated in a peaceful march organized by an opposition political party to protest water shortages in the capital. In August 2016, police forcefully dispersed a small demonstration protesting unemployment outside the National Assembly. In February and March 2017, some student-led protests occurred at tertiary institutions necessitating police deployment but were not overtly political. There were multiple reports of police brutality, including the use of rubber whips and rubber bullets. Another peaceful march against corruption was held in March 2018. This followed allegations of embezzlement of the National Petroleum Fund by a company charged with the management of the funds together with some GoB officials. In late 2019, following general election, the Umbrella for Democratic Change (UDC) held a peaceful march of no more than 200 people protesting the election results.