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Understanding Chieftainship in Botswana: The Status and Powers of Chiefs in Present Day Botswana

Published online by Cambridge University Press:  08 September 2015

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Abstract

This article seeks to provide a critical analysis and understanding of the institution of chieftainship in Botswana. It looks at the institution of chieftainship starting from before colonization, right through colonization to the present day, post-colonization. It will be observed that interference with the institution started from colonization and continues to the present day. Consequently, this article weaves a discussion of the justification for such interference through an analysis of the status and powers of chiefs during colonization and their status post-colonization. The chiefs’ reaction to the encroachment is also covered, for the chiefs were not simply passive and co-operative while their powers were being taken away.

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Type
Research Article
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Journal of African Law , Volume 59 , Issue 2 , October 2015, pp. 271 - 293
Copyright
Copyright © SOAS, University of London 2015 

INTRODUCTION

Chieftainship was the cornerstone of Botswana's political life, both before and during the colonial era. Before the establishment of the British Protectorate of Bechuanaland in 1885, the Tswana tribes, like other Sotho peoples, had for centuries enjoyed an elaborate political system which depended on the kgosi [tribal chief] being vested with virtually absolute powers.Footnote 1 Before 1885, however, external pressures did not ultimately prevent internal revolt. It was this that the establishment of the Protectorate achieved by introducing British administrators to supervise the chiefs.Footnote 2 As a matter of expediency, influenced mainly by the financial impossibility of governing directly, the British ruled the Tswana tribes indirectly through their chiefs.Footnote 3 Khama I had actively solicited the vaguely worded protection: the British would promote “peace and order”, while the chiefs would retain more or less full sovereignty in internal affairs.Footnote 4 This is reflected in the dispatch to the first assistant commissioner of the Bechuanaland Protectorate. He was “not to interfere with native administration; the chiefs are understood not to be desirous of parting with their rights of sovereignty, nor are Her Majesty's Government by any means anxious to assume the responsibilities of it”.Footnote 5 Joseph Chamberlain, colonial secretary in 1895, explained the arrangement he had in mind as one in which the chiefs would rule “much as before” and, at least until 1930, the Protectorate administration largely confined itself to supervising and restricting European activities in the territory.Footnote 6

This did not however deter the promulgation of an Order-In-Council of 1891, six years after the declaration of the Protectorate. This Order-In-Council was made by the British government acting under the Foreign Jurisdiction Act of 1890.Footnote 7 The Foreign Jurisdiction Acts were passed to regularize the machinery by which the Crown exercised jurisdiction in foreign countries and to subject such jurisdiction to parliamentary control.Footnote 8 The 1891 Order-In-Council authorized the high commissioner to South Africa (based in Cape Town and simultaneously serving as governor of the Cape Colony) to “legislate for Bechuanaland by Proclamation”.Footnote 9 It vested in him “all powers and jurisdiction which Her Majesty … had or may have … subject to such instructions as he may from time to time receive from Her Majesty through a Secretary of State”.Footnote 10

The order further specified that, in so doing, “he shall respect native law and custom”.Footnote 11 This order-in-council marked the genesis of the chiefs’ sorrows in Bechuanaland as it was this order that provided the excuse for all the interference which the colonial administration, through either the high or resident commissioner, exerted on the powers of dikgosi [chiefs].Footnote 12 As pointed out by Michael Crowder, Rey, the resident commissioner at the time (April 1930), was not a man to practise indirect rule. So Rey set about drafting proclamations that would define clearly the limits to the powers and judicial authority of the Tswana chiefs.Footnote 13 However, the order-in-council did not go unchallenged as certain dikgosi, notably Sebele and Tshekedi Khama, contested the granting of these new powers to the high commissioner. Tshekedi Khama's rebellion stemmed mainly from the fact that these actions on the part of the British government breached the agreement it had with his father, Khama I, whereby it was not to interfere in dikgosi's affairs with their subjects.Footnote 14 As a result of this and other developments mentioned below, there was no time for the gradualist changes occurring within the tribal system to have much discernible effect; the entire 80 years of British rule up to 1965 can therefore be regarded as a period of chiefly autocracy intensified and corrupted by British over-rule, only towards the very end marginally affected by British attempts to constitutionalize and temper its character.Footnote 15

Although the new independent government had more respect for the institution of chieftainship, it nevertheless brought tribal authorities under the control of the central administration. It excluded chiefs from electoral politics, arguing that their participation could be divisive and destabilizing to the country. This necessitated the resignation of the Ngwaketse chief, Bathoen, when he chose to participate in politics.Footnote 16 There had been an expectation, arguably misplaced, that under the new post-colonial government the position of chiefs would fare better. Much to the chagrin of the chiefs, this was not to be the case. As shown below, this resulted in constant judicial struggles between the chiefs and the state, the most recent encounter occurring in 2011 in the case of Kgafela Kgafela and 13 Others v The State (Kgafela).Footnote 17 The section of this article dealing with chieftainship post-colonization discusses this case and its predecessors in detail.

This article seeks to provide an in-depth and critical analysis of the institution of chieftaincy in Botswana. It thoroughly examines chieftaincy pre-colonization, during colonization and post-colonization. In each subsection, it examines the status, role and powers of the chiefs. In the sections dealing with chieftaincy in the colonial and postcolonial era, the justification for the erosion of chiefly powers is interwoven into the discussion. Objections to such erosion are also highlighted.

TSWANA CHIEFTAINCY IN THE PRE-COLONIAL, COLONIAL AND POST-COLONIAL ERAS: CHIEFS’ STATUS, ROLE AND POWERS

The chieftainship was the “centre”, holding Tswana society together; it remained the organizational centre of Tswana life until the middle of the 20th century.Footnote 18 The Bechuanaland Protectorate was created by the British in 1885.Footnote 19 This marked the beginning of colonization in Botswana. Through colonizationFootnote 20 and after colonization, the position of chiefs has been constantly changing and has currently been whittled down to the point where chiefs are now simply civil servants of the state.

Pre-colonization

In pre-colonial Tswana societies, the kgosi occupied a position of unique privilege and authority, as he was the sole administrator and all powers vested in him. In political terms, the chief was a very powerful figure who could only be succeeded by his sons.Footnote 21 He was the symbol of tribal unity, the central figure round whom tribal life revolved. He was also the head of the tribal army, organizing military expeditions and sometimes performing necessary war magic for the success of his troops.

The kgosi could make laws and see to their implementation within his area of jurisdiction, and to that extent there was no separation of powers. However the seemingly limitless power of the kgosi was counter-balanced by the potential opposition of the kgotla [village ward/traditional meeting place], for he had to govern in accordance with the wishes of his people.Footnote 22 Illustrating this point in relation to the Kgatla, Roberts said: “… Kgatla would say, though, that it is for the chief to decide, and not for the people at the meeting, at whatever level this may be. In one sense this may be true, but no chief would last long unless he enjoyed general acceptance and this would be swiftly eroded if he constantly tried to push through measures for which there was no support …”Footnote 23

The chief was at once ruler, judge, maker and guardian of the law, repository of wealth, dispenser of gifts, leader in war, priest and magician of the people.Footnote 24 He allocated scarce resources, conducted assemblies and rituals, and represented his polity in encounters with outsiders.Footnote 25 In his administration, the kgosi was assisted by the basimane bakgosi [male assistants to the chief], people of high social standing often related to the royal house, who headed the various wards or divisions of the morafe [tribe] or nation. In important discussions, their opinions were sought and carried considerable weight.Footnote 26

The chief and his family normally took precedence in the tribe in matters of ritual, such as the first fruits and initiation ceremonies, and he alone had the right to convene tribal meetings, arrange tribal ceremonies and impose the supreme penalties of death or banishment. The arrangements for all tribal ceremonies were in his hands and could not be carried out save under his authority. The most important of these was rainmaking. Rainmaking was held everywhere to be an attribute of the chieftainship, and a chief's reputation and popularity were often determined by the degree of success with which he could provide this most essential factor to the economic well-being and prosperity of his people. Even if the chief himself had not learnt to perform the necessary magical rites, he had his tribal rainmakers who could do so, and they always worked at his request and under his direct supervision.Footnote 27

The chief had the right in general to obedience from his subjects in all matters of public interest, as well as in minor matters of more personal concern. Failure to comply with his orders was a penal offence, while disloyalty or revolt against his authority was one of the major crimes in Tswana society, punishable as a rule in former times by death and the confiscation of the culprit's property, and sometimes by banishment.Footnote 28

The chief's life was not merely one of immense privilege. He had many duties to perform for his tribe,Footnote 29 duties that, if faithfully carried out, might impose an immense burden on his time and energy. In the first place he had to watch over the interests of his people and keep himself informed of tribal affairs generally.Footnote 30 It was his duty as trustee to treat his people well and justly, and to see that no harm or misfortune befell them. He must give ear to all his subjects, irrespective of rank. In particular, he was required to attend regularly at his kgotla to listen to news, petitions and statements of grievances from all parts of the tribe. The chief was also looked upon as a source of wealth, reward and support in times of trouble. This constituted a powerful sanction for his authority, and a chief too niggardly to provide lavishly for his subjects readily became unpopular. It was a common complaint of old people that young chiefs thought more of their own welfare than of providing for the tribe.Footnote 31

The extent of democracy in this system of government depended on the interaction of the various ruling groups. Where the kgosi and his relatives were weak, the kgotla was sometimes overawed by rich commoners. Where a relative was stronger than the kgosi, the latter often became a surrogate. A kgosi who acted according to custom and in the interests of the group as a whole, retained allegiance and respect.

In colonial times

Before 1919, which is regarded by most writers as the period of subtle interference,Footnote 32 the British did, in quite a few instances, try to exercise their new authority. One such instance occurred in 1893 when the Batawana were divided on the rule of their kgosi, Sekgoma Letsholathebe. He was aggressively rejecting the administration's laws and the position of Christian missionaries. After a kgotla meeting at Tau, the resident commissioner, Sir Ralph Williams, deposed the kgosi in favour of Mathiba Moremi.Footnote 33

However, it must be remembered that, as pointed out above, when the British established the Protectorate, they initially never intended to meddle with the Tswana system of governance. However, this was not to remain the case for long. Mamdani argues that chiefs were despots who manipulated and oppressed their subjects. He further argues that the absolute powers wielded by the chiefs provided the impetus for the subjection and oppression with which they governed their subjects.Footnote 34 It was this tendency of the chiefs to abuse the powers wielded by them that led to intervention by the British administration in order to protect the interest of the general tribal community. Most often, the restriction stemmed from popular demand, as happened in 1907 with regard to the Native Labour Proclamation of 1907.Footnote 35 This proclamation made it illegal for dikgosi to bind themselves by contract for the provision of labour. Dikgosi were trying to raise money for development, as well as required taxes, by sending youth to South African mines. The population did not support this practice and asked the administration to act on their behalf to stop dikgosi from sending their people to the mines against their will. In this respect, dikgosi's powers were curtailed and the people's welfare enhanced.Footnote 36

Around the turn of the 20th century, the British began to attempt more than occasional interventions in the rule of the Batswana dikgosi. They began a process, which has continued to this day, of incorporating dikgosi into central government structures. The first major step in this regard was making dikgosi the collectors of the hut tax that was intended to fund the administration of the Protectorate. Instead of receiving the contributions from their own people, dikgosi henceforth only received ten per cent of their collections.Footnote 37 This change clearly antagonized the people and the dikgosi because they saw no reason for supporting the new administration financially and often did not have the money to pay.Footnote 38

The colonial government also took certain powers away from the chief. By 1910, dikgosi could no longer grant mining concessions without the express permission and approval of the secretary of state, nor make practical agreements with neighbouring states without administration approval. Cases of murder and those involving Europeans were transferred to the jurisdiction of the European courts.Footnote 39 Where any chief acted in violation of this rule, he was penalized accordingly.Footnote 40

The relationship of the administration and dikgosi took another turn in 1919 when the law was changed to allow appeals from dikgotla [village wards/traditional meeting places] to the magistrate. Both the kgosi and the magistrate sat together in court to hear such appeals. Thus, while power was taken from dikgosi, at the same time the administration recognised the need for traditional authorities to participate in such decision making processes. However, overall the fact remained that the kgosi and his councillors no longer had power to make the ultimate decision.Footnote 41

In the period up to 1920, the kgotla's powers of control over dikgosi generally remained unfettered except for a few policy questions which were turned over to the Protectorate administration. The chiefs on the other hand were facing the first stages of incorporation into the territory's central government structure. The establishment of the Native Advisory Council in 1920 was the start of a major change in policy making in Botswana. After this date, the Protectorate government increasingly began to assume authority to initiate social change. The task of the Native Advisory Council was to legitimize this new locus of power by debating, approving and in some cases possibly modifying administration proposals. The Native Advisory Council consisted of dikgosi and councillors who were chosen in kgotla. It is worth mentioning here that Tshekedi Khama refused to attend the council, except as an occasional observer. In his view, the council stripped the chiefs of their constitutional powers, and yet did not possess any legislative powers. As far as Khama and Sekgoma were concerned, the council was incompatible with their customs, since the representatives of the Bangwato on such a council could make no decision or enter into any agreements without first referring them back to the kgotla.Footnote 42 However, deliberations and resolutions made at the council were rarely, if ever, discussed in dikgotla prior to the meetings. Once resolutions had been approved by the resident commissioner and dikgosi, the latter announced them in dikgotla and the public had little say in deliberating over them, contrary to the customary democratic practice of dikgotla.

From 1934–35, the administration introduced two new proclamations to regulate the activities of dikgosi, who were allegedly abusing their powers. These were the Native Administration Proclamation of 1934Footnote 43 and the Native Tribunals Proclamation of 1934.Footnote 44 The administration contended that the changes involved would make local government more democratic by reducing the chiefs’ powers and rendering the kgotla a legal entity.Footnote 45 These laws would have given the administration total power over policy making and would have left dikgosi to implement them without taking any real part in their formulation. The people, through the kgotla, would no longer have had any part at all in decision making.Footnote 46

The Native Administration ProclamationFootnote 47 also gave the high commissioner power to recognize dikgosi, meaning that unrecognized dikgosi received no official backing.Footnote 48 These changes did not sit well with most chiefs, notably Tshekedi Khama and Bathoen II, and led to these two proclamations being challenged in the case of Tshekedi Khama and Another v The High Commissioner.Footnote 49 Tshekedi Khama argued inter alia that the high commissioner had no right to order him to carry out certain duties under the proclamations since they were of no legal force in that they did not respect native law and customs as specified in the Order-In-Council of May 1891. He also argued that the proclamations did not make clear whether the tribal council replaced the Kgotla as the sole administrative body for the tribe. Furthermore, and most importantly, he argued that the proclamations took away the powers and the jurisdiction of the chiefs which were guaranteed by the verbal treaty entered into by the Queen through her representative, Sir Charles Warren.Footnote 50 Even though the argument that the proclamations were ultra vires failed, the judge favoured the submissions that the proclamations did not respect native laws and customs. The outcome of the case did not however turn on this. It turned on the question whether, under the Foreign Jurisdiction Act of 1890, the Crown had “unfettered and unlimited jurisdiction to legislate for the government of and administration of justice among the native tribes in the Bechuanaland Protectorate and whether this power is not limited by Treaty or agreement”. This was referred to the Labour secretary of state for the Dominions, Sir Malcolm MacDonald, who confirmed the Crown did have unlimited power.Footnote 51 The final judgement was against Tshekedi and Bathoen with costs.

Although the chiefs may have lost the case, they however had made a point, namely that the chiefs would not sit by and fold their hands in silence whilst the British administration stripped them of their powers. While their actions may have delayed the proclamations, they came into effect in 1943 in the form of the Native Administration Proclamation and the Native Court Proclamation.Footnote 52 Notwithstanding that the 1943 proclamations retained most of the provisions eroding the powers of the chief, they nonetheless toned down some of the harsher effects of the 1934 proclamations, by allowing for the idea of working through the kgotla. They did so by providing that dikgosi could make laws with “the agreement” of the kgotla. The tribal treasuries, established to control the collection and expenditure of taxes, were operated by a finance committee appointed by the kgosi. Although dikgosi lost their ten per cent from taxes, they now received a fixed salary.Footnote 53 While the high commissioner could still appoint and depose dikgosi, he was first required to consult with the kgotla. This resulted in the kgotla once again assuming a prominent role among Batswana, with the kgosi consulting with it rather than tribal elders.

In 1954, the African Administration Proclamation went further and provided that dikgosi had legislative and executive authority, so long as they exercised it with the consent of the dikgotla.Footnote 54 By 1956, it was patently obvious that British rule was ending and that steps must be taken to form the basis of the internal government which would lead the country to independence. In 1951 a Joint Advisory Council was formed, consisting of both Africans and Europeans. In 1959 this council advised that a new constitution be established with a legislative council and this council came into existence the following year.Footnote 55 The new Legislative Council in its turn led to the general elections of 1965 and the formation of a national government.

Post-colonialism

With the advent of a new constitutional order, things were no longer to remain the same for the institution of chieftainship. With Botswana's Independence Constitution (the Constitution), came the liberal notions and principles of separation of powers, the rule of law and the bill of rights, all of which were antithetical to traditional chieftaincy.Footnote 56 Furthermore, the new government transformed monarchical politics into republican politics and this led to the hereditary rule of traditional leaders being confined to a House of Chiefs, which, as shown below, was one of the mechanisms under the new constitutional dispensation.Footnote 57

One of the major problems and challenges that faced those involved in the task of nation building in post-colonial Botswana was finding a place in the modern political setting for traditional leaders that would be acceptable to them and yet conform to the new political order.Footnote 58 This obstacle notwithstanding, the government had to find a way to ensure both the growth and development of the country and its citizens. The then president, Seretse Khama (who was also the leader of the ruling Botswana Democratic Party), pioneered this development. He was a man of outstanding ability and dealt with the opposition in a smooth and brilliant way. There was a mantle around Seretse from his famous grandfather, Chief Khama the Great, and from his even more able if not hard headed uncle, Tshekedi Khama, with whom Seretse had a bitter struggle. Seretse was one of the most progressive men in independent Botswana and was popular with African teachers and businessmen. His experience and sense of responsible leadership made him attractive to the traditionalists. Masire, Seretse's deputy, and Seretse himself attached great significance to political transformation and the building of both economic and social pillars of the state of Botswana.Footnote 59 To them, nation building and real transformation were impossible without making some inroads and changes in the institution of traditional leadership, which was viewed in some quarters as conservative and anti-development. The fact that there would be opposition to the changes sought to be introduced did not however deter the government from deciding to proceed as it intended.

From the early years of Botswana's independence, the institution of chieftaincy was under attack. In particular, Sir Seretse Khama's regime was not pro-chieftainship. In the late president's opinion, chieftaincy was autocratic, out-moded and needed reform and replacement by “modern” representative and more accountable systems at local levels, to mirror what was happening at national level. This attitude defined the post-colonial approach to the institution of chieftainship.Footnote 60

The first step in the revolution with respect to chieftainship was the Chieftainship Law of 1965.Footnote 61 This diluted the chiefs’ powers and some of their authority was taken over by district councils. The chief's authority was restricted to lesser and somewhat peripheral issues such as determining membership of a tribe, arranging for tribal ceremonies and helping to report crimes committed in a tribal territory.Footnote 62 It further empowered the high commissioner (after independence, the president), after a judicial commission had considered any complaints received from tribesmen, to remove a chief and appoint his successor. In practice these provisions, because they involved reference to a judicial commission, gave the new government of Botswana rather less control over the chiefs than the British maintained.Footnote 63

It is not therefore surprising that the Chieftainship (Amendment) Act of 1970Footnote 64 introduced more stringent controls. This act empowered the president to remove a chief without waiting for complaints from his tribe and furthermore without reference to a judicial commission. An administrative enquiry is mandatory but its recommendations need not be followed. Thus, while in practice chiefs were selected from the tribe's royal family, their appointment and removal from office were just as much within the government's discretion as those of the rest of the civil service.Footnote 65

This law was however repealed and replaced by the Chieftainship Act of 1987.Footnote 66 The major difference between the two acts was that the president's powers were in effect now transferred to the minister of local government, lands and housing. One example was section 4(1)(b) which provided that the minister should recognize a chief.Footnote 67 By extension, the wide discretion formerly given to the president, whereby he may remove a chief, of his own volition and without waiting for complaints, was modified. Under the modification, the minister could not simply remove a chief, without either a complaint from the tribe or reasonable suspicion on the part of the minister that the chief was abusing his powers. Even where either of these two requirements had been satisfied, the minister was further expected to hold an inquiry before removing the chief.Footnote 68 The act further allowed appeals from the minister's decision, deposing them to the president.Footnote 69

Even though the act purported to exclude the jurisdiction of the general courts to hear appeals on matters relating to chieftainship,Footnote 70 chiefs nonetheless approached the courts whenever they felt aggrieved by the minister's decision.Footnote 71 The courts have held that, while section 25 may preclude the appellate jurisdiction of the High Court, it did not preclude the High Court's powers of review in the case of an allegation of ultra vires or bad faith.Footnote 72 In Gaseitsiwe v The Attorney General,Footnote 73 a chief alleged that his suspension by the minister was tainted with bias and illegality and that the minister acted in bad faith in suspending and subsequently removing him. The facts of this case were quite peculiar. The appellant, the paramount chief of the Bangwaketsi tribe, had decided to act in flagrant disregard of the policies of the ministry under whose control chiefs were now placed.Footnote 74 One instance of such conduct on his part was the rendering impossible of a visit planned by the minister to address the kgotla on the failed visit of the then Zambian president, Fredrick Chiluba.Footnote 75 As a result of the impossible behaviour on his part, the minister suspended him. He challenged his suspension and alleged bad faith on the part of the minister. Having examined the evidence, the court came to the conclusion that, owing to his improper and impossible conduct, the minister had every reason to suspend him and so the suspension was not in bad faith. Furthermore, that not only did the minister act in good faith, she had also gone further in providing the chief in question with the evidence she had considered in reaching the decision to dismiss him.Footnote 76

Another provision of interest in the Chieftainship Act was section 2, which defined “tribe” with reference to the eight principal tribes only.Footnote 77 The effect of this provision was that, while the minister could recognize the chiefs of the eight tribes, he was restrained from recognizing the chiefs of any tribe not mentioned in the act. This section in the Chieftainship Act had its roots in the constitutional provision that provided for only the eight principal tribe chiefs, as constituting the main pillars of the House of Chiefs.Footnote 78

Certain chiefs, in particular Chief Shikati Kamanakao of the Wayeyi, were not happy with this state of affairs and sought to challenge the provisions of the Chieftainship Act, the Tribal Territories ActFootnote 79 and the Constitution before the High Court, in the case of Kamanakao and Others v The Attorney General.Footnote 80 They alleged that section 2 of the Chieftainship Act, as well as the Tribal Territories Act, were discriminatory and therefore unlawful. In addition they alleged that sections 77 to 79 of the Constitution were also discriminatory in that they provided for only eight tribes as ex-officio members of the House of Chiefs. They further contended that the Wayeyi had their own distinct lifestyle and culture, notwithstanding the fact that they might live in the Batawana tribal territory.

The court first established the principle of equality before the law, as laid down in section 3 of the Constitution. The court then went on to point out that “an enactment or even a provision of the common law that is inconsistent with the Constitution is liable to be struck down by the High Court. The position in regard to a constitutional provision alleged to be inconsistent with another constitutional provision brings into play considerations different from those taken into account where a statute is alleged to be in contravention of the Constitution”.Footnote 81

The court went on to find that the provisions of section 2 of the Chieftainship Act were discriminatory on the basis of tribe and therefore ultra vires the Constitution. As regards the attack on the provisions of the Constitution, the court held that the constitutional aspect touched on the body politic of the state. The court further went on to state that there was no ranking of rights in the Constitution, and that the Constitution had not vested the High Court, as a creature of the Constitution, with the power to rank the provisions in order of importance. The court then held that for it to strike out one provision of the Constitution as offending against another would be tantamount to it rewriting the Constitution, which is to be a package on its own. Furthermore, it pointed out that the High Court was not the proper organ of state to do so, but that this should fall to the legislature. The court however made the following interesting observation and urged the legislature to take it into account:

“There is no doubt that under the wide definition of the expression ‘discriminatory’, the treatment given to the Wayeyi and other tribes by omitting their tribe from having an ex officio member in the House of Chiefs under the provisions of section 77(2)(a) amounts to unfairness and discrimination, which, if not justified, is intolerable. They are subjected to a disability which the named eight tribes do not suffer; or put in another way these eight tribes have a privilege or advantage which is not accorded to the Wayeyi.”Footnote 82

It took the legislature a further three years to amend the Constitution in line with this finding of the court. It is this constitutional amendment in 2005Footnote 83 that necessitated the need to amend the Chieftainship Act again to reflect the constitutional change.Footnote 84 This came in the form of the Bogosi [Chieftainship] Bill of 2007.Footnote 85 The bill sought to realign the law relating to bogosi with constitutional provisions, especially those relating to the composition of the Ntlo ya Dikgosi [House of Chiefs].Footnote 86 It further sought to effect changes in the nomenclature relating to bogosi, in the light of the recommendations made by the High Court in the case of Kamanakao.Footnote 87 Section 2 of the bill thus redefined the word “tribe” to give it a wider and all-embracing meaning to include all tribes.

The bill came into effect in 2008 and is now called the Bogosi Act.Footnote 88 This new act is not so fundamentally different from its predecessor. One of the new developments was to replace the English words relating to the chief, with their Setswana counterparts.Footnote 89 Furthermore, the act now provided that, for a chief to be recognized, he had inter alia to possess “such minimum educational qualifications as may be prescribed from time to time”.Footnote 90 In pre-colonial times, the chief didn't need to go to school to learn how to govern his subjects, he learnt from his predecessors. The act also improved on the functions of the chief and in particular provided for one of the functions of the chief, as obtained in pre-colonial times, to be “the performance of tribal ceremonies”.Footnote 91

However, what the act did not do was to increase the chiefs’ powers. The applicants in the case of Kgafela Footnote 92 argued that the new act increased their powers and in a way, in addition to the powers provided for in the act, restored most of the chiefs’ powers as had obtained in pre-colonial times.Footnote 93 The High Court emphatically held that the new act did not in any way increase the chiefs’ powers, beyond those provided for by the relevant statutes setting out chiefs’ powers, the Bogosi Act being one such statute.Footnote 94

Other legislation moreover has stripped chiefs of their legislative and administrative powers. The District Councils Law of 1966 has abolished, or transferred to the councils created by the law, their power to regulate the social and economic life of the tribe, including the right to levy regimental labour. The Matimela Act of 1966 prescribes the manner in which district councils and not chiefs collect and dispose of stray livestock, a vitally important matter in a country where cattle are the staple of the economy. The power to collect and dispose of matimela was formerly the sole preserve of the chiefs.Footnote 95 The effect has been a decrease in the wealth of chiefs, and a subjection to such salaries as are provided by the regulations to the Bogosi Act. The Tribal Land Acts of 1968–70 vest chiefs’ powers to grant and withdraw rights in land in land boards appointed by the minister of local government and lands and representatives of the district councils. These acts are also some of the main statutes that have greatly limited chiefs’ powers, as the power to dispose of land formerly vested exclusively in the chief. Finally, the Local Government Tax Law of 1966 transferred to the district councils the right to levy taxes, traditionally held by the chiefs and vested after 1943 in the tribal treasuries of which they were chairmen.

In addition, a House of Chiefs was instituted to advise the government on various issues, especially those which pertained to tradition. Some writers have observed, however, that chiefs have never really been happy with their new role in the House of Chiefs.Footnote 96 This House of Chiefs is the present day look-alike of the Advisory Council that obtained under the British rule.Footnote 97 The result of this is that the chiefs are not deeply involved in the legislative process of the present day government, except to the extent that there are issues relating to customary law. Even then, the government is not bound by whatever recommendations they may make, but may choose to disregard them.

Even in the sphere of Tswana customary law, the chiefs and their subordinate headmen are now much more closely controlled than before independence, despite maintaining a dual system of indigenous and state law. To some extent, this closer control is due to the greater readiness of tribesmen to appeal against the decisions of chiefs whose political powers have been so much diminished. It is equally attributable to two other factors. The first consists of the provisions of the Customary Courts Proclamation 1961Footnote 98 that not only prescribed definite procedural rules, but went as far as assimilating the practice of the chiefs’ courts to those of the district commissioners and magistrates. This proclamation culminated in the Customary Courts Act of 1968,Footnote 99 which has furthermore removed from the chiefs’ jurisdiction certain matters which were normally adjudicated by them. The result is that the chiefs’ courts are no longer the barely formal venue for dispensing justice that they used to be and, although the chiefs themselves continue to hear occasional cases, the bulk of the work is now delegated to deputies, usually older men better suited than the chiefs due to their temperament and knowledge of the duties involved.

The second factor relates to the content of indigenous customary law, which is the main body of law applied by the chiefs in their various courts as established under the Customary Law Act of 1969.Footnote 100 Indigenous customs consist of norms, practices and traditions binding on society.Footnote 101 Regarding Botswana, MolokommeFootnote 102 writes that indigenous customary law could be understood in at least three senses: traditionalist customary law, lawyers’ customary law and the living customary law. Indigenous customary law in Botswana, as in other African countries, is not only a source of law but also a form of law.Footnote 103

Indigenous customary law in Botswana has undergone certain stages of development. Before colonization, it consisted of the norms, practices and traditions promulgated by the chiefs. This remained the position in the initial period after colonization. However, the Native Administration ProclamationFootnote 104 and the Native Tribunals Proclamation of 1934Footnote 105 sought to proffer a definition for customary law. Under these proclamations, customary law was defined thus:

“In this Proclamation and in any rules or regulations made thereunder, unless inconsistent with the context - …. ‘Native law and custom’ shall mean in relation to a particular tribe or in relation to any native community outside any tribal area the general law and custom of such tribe or community except so far as the same may be incompatible with the due exercise of His Majesty's power and jurisdiction or repugnant to morality, humanity or natural justice or injurious to the welfare of the natives”.Footnote 106

This formulation was followed in section 2 of the Customary Law Act of 1969,Footnote 107 albeit mutatis mutandis. Under this act: “[i]n this Act, unless the context otherwise requires - …. ‘customary law’ means, in relation to any particular tribe or tribal community, the customary law of that tribe or community so far as it is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice.”

This meant that the validity of these customs depended on common law and statute. Indeed, a number of statutory enactments have excluded the applicability of customary law in many areas that used to be subject to the rules of customary law. The first of these, the fundamental law of the country, the Constitution, provides that “no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law”.Footnote 108 Although this is consistent with the principle of legality, it excludes the applicability of customary criminal law, which like all the other rules of customary law belongs to the oral tradition and is therefore unwritten.Footnote 109 A case in point, dating as far back as 1976, is Bimbo v State.Footnote 110 In this case, the accused person had been caught committing adultery with a married woman. Because adultery was morally wrong and criminally punishable under Tswana customs, he was found guilty and sentenced accordingly. However, on appeal to the High court, the conviction was set aside on the basis that adultery, though an offence under Tswana law, did not constitute an offence under the written penal laws of Botswana.

To the extent that the Constitution outlaws customary criminal law outright, it is submitted that this constitutes unjustifiable interference with the rules of customary law. The consequence of this for chiefs is that it also translates into a reduction of their powers. That this is true is further illustrated by the case of Kgafela.Footnote 111 In this case, the appellant had administered corporal punishment to certain of his subjects, for an offence known in Kgatla customary law as go kgwathisa.Footnote 112 It is important to note that, under the Criminal Procedure and Evidence Act,Footnote 113 corporal punishment is a recognized form of punishment in Botswana that has been held to be lawful, depending on the manner in which it is administered.Footnote 114 It is however a recognized form of punishment for certain criminal offences as laid down in the Penal Code.Footnote 115 The appellant in Kgafela then sought to administer corporal punishment for the offence, arguing that, since corporal punishment was a recognized form of punishment in Botswana, he had the right to administer it for the alleged infraction which was taking place in his tribal territory. The court held that, although corporal punishment was a recognized form of punishment, it could only be applied in respect of the offences stipulated in the Penal Code and not in respect of offences which existed somewhere in the memory of sages and could therefore not be ascertained.Footnote 116 This means that chiefs have no power whatsoever to punish any offence within their tribal law, unless the offence is provided for in the Penal Code. They can only proceed under civil law. Even with respect to these penal laws, the chiefs’ jurisdiction is further limited by section 13(a) of the Customary Courts Act which provides:

“Subject to any express provision confirming jurisdiction, no customary court shall have jurisdiction to try -

  1. (a) cases in which the accused is charged with -

    1. (i) treason, riot or any offence involving the security or safety of the State,

    2. (ii) an offence in consequence of which death is alleged to have occurred,

    3. (iii) bigamy,

    4. (iv) any offence under Division II of Part II … of the Penal Code with the exception of offences under sections 108, 119, 123, 125 and 128 of the said Division,

    5. (v) bribery,

    6. (vi) an offence concerning counterfeit currency,

    7. (vii) robbery, where the person accused is of or above the age of 21 years,

    8. (viii) extortion by means of threats,

    9. (ix) an offence against insolvency law or company law,

    10. (x) rape,

    11. (xi) contravention of prohibitions relating to precious stones, gold and other precious metals,

    12. (xii) such other offences as may be prescribed.”

In addition, customary law was further defined from the perspective of the common law, and was to comply with common law standards of morality, humanity and justice.Footnote 117 This can be seen from the provisions of section 2 of the Customary Law Act quoted above.Footnote 118 This meant that, in deciding what amounts to customary law in their various tribal areas, chiefs had to consider what the common law considers fair and just. The chief could no longer have regard to the peculiar circumstances existing in his tribal area.Footnote 119 As pointed out above, the chiefs are the custodians of customary law. In line with that mandate, the chiefs determine the content of customary law at any given point in time. They also determine whether a certain rule of customary law has changed.Footnote 120 They normally determine this having regard to the prevailing circumstances in their various tribal areas, not by having regard to common law concepts.Footnote 121 Requiring consideration of common law issues amounted to a reduction in chiefs’ powers, as the chief no longer has the power to interpret customs as he deems fit. This is more so because what he, as the repository of the customs of his people, may see as fair having regard to his society and people, may not be regarded as fair under common law. For instance, under customary law, it is perfectly fair for the widow of a deceased to be represented by her brothers-in-law, to her exclusion. However, under the common law, this is grossly unfair and is even regarded as a breach of the rules of natural justice, as held in the case of Gaelebale Mpho Seakgosing and Sharon Seakgosing v Tidimalo Jokase.Footnote 122

It would seem that some of the rules of customary law occasion great injustice to its subjects, as evidenced from the customary rule discussed above. To this end, therefore, the limitation placed on the content of customary law to be applied by the chief is well founded and justified. This is especially so when it is remembered that the High Court in Seakgosing did not immediately strike out the rule of customary law, but actually embarked on a determination of its legality or otherwise. In doing so, the court provided detailed and elaborate reasons why it thought that a rule of customary law might in a given instance be just or unjust.Footnote 123 The resulting benefit is that customary law is allowed to grow and develop in line with prevailing changes that are taking place in society. It must be remembered that even customary law itself is not static or cast in stone, but changes and evolves over time, even as society evolves and changes.Footnote 124 The consequent benefit of this for the institution of bogosi is that the chiefs would now play a role, together with the court, in developing customary law in line with prevailing societal changes. Therefore, so long as the scope of customary law keeps diminishing, the chiefs’ powers will continue to diminish. However, this statement has two caveats. The first is that the diminished scope of customary law is justified, to the extent that certain rules of customary law occasion grave injustice to its subjects. While this may translate into a reduction in the judicial power and discretion of the chief, it is justified as it works in the best interest and benefit of customary law for the progressive adaptation of the law to current societal standards. Moreover, this end result works to the advantage of dikgosi as they would also play a part in such progression and development.

The second caveat relates to the abolition of customary criminal law under section 10(8) of the Constitution.Footnote 125 While this may make sense in terms of the principle of legality, it amounts to unjustified interference with the scope of customary law and consequently unjustified erosion of the chiefs’ judicial powers. It is unjustified for the following reason. Botswana has a dual legal system.Footnote 126 There is the common law system and the customary law system, and they are supposed to co-exist side by side. Each system also operates in its separate sphere and the principles applicable in the two systems are not the same. Interference in the customary system to such an extent as to abrogate the rules of law applicable in a particular subject area in that sphere, cause untold consequences for customary law.Footnote 127 The resultant effect is that, rather than the customary criminal law growing and developing, it is annihilated completely. The resultant consequence for dikgosi is that, as regards customary criminal law, they have no powers whatsoever. Any doubt as to whether or not they possessed any form of power was put to rest by the High Court in Kgafela.Footnote 128

There have been other changes, both during the colonial period and the period after independence, that contributed to altering the role of chiefs. The most significant of these have been increased educational levels and literacy, and extensive rural-to-urban migration.Footnote 129 These have contributed to a climate in which tradition and its symbols are no longer as significant as in the past. Similarly, the chief is no longer as important as a major symbol of tradition as he used to be. This undermined status notwithstanding, chieftaincy has now been articulated into a mix of mutually respecting and co-ordinated systems, blended with the modern institutions of local government.Footnote 130 If the chiefs do not blend in and find a way of working with the newly established system, central government will not hesitate to displace them.Footnote 131

CONCLUSION

Decolonization represented another landmark in the transformation of African traditional governance institutions, especially the institution of chieftaincy. The abolition of the colonial system of indirect rule left in flux the role of the upper echelons of chiefs and their relations with the new African state. Faced with the challenge of finding a suitable and acceptable place for chiefs in the modern political set-up, the new independent Botswana chose to integrate chiefs into the central governance system. The unavoidable outcome of such integration was the subjugation and reduction in the status and powers of chiefs in present day Botswana.

Footnotes

1 I Schapera The Tswana (1953, International African Institute) at 51–52. The Tswana recognize their common ancestry but have for centuries been divided into a number of independent tribes.

2 Although some accounts suggest that the Protectorate was established at the request of some prominent chiefs in Botswana, J Ramsay “The establishment and consolidation of Bechuanaland Protectorate, 1870–1910” in WA Edge and MH Lekorwe (ed) Botswana: Politics and Society (1998, van Schaik) 62 at 62 points out that the Protectorate was imposed on the Batswana people. No chief asked for it and only three chiefs, Khama III of the Bangnwato, Gaseitsiwe I of the Bangnwaketse and Sechele I of the Bakwena, were consulted afterwards; also mentioned in CM Fombad and EK Quansah The Botswana Legal System (2006, LexisNexis) at 54.

3 Gillet, S “The survival of chieftaincy in Botswana” (1973) 7 Botswana Notes and Records 103.

4 PT Mgadla and AC Campbell “Dikgotla, dikgosi and the Protectorate administration” in JD Holm and P Molutsi (ed) Democracy in Botswana (1989, Botswana Society) 48.

5 Footnote Ibid.

6 See Lord Hailey Native Administration in the British African Territories (pt V, 1953, HMSO) at 206; “Report on the financial and economic position of the Bechuanaland Protectorate” (Pim Report) (1933, Cmd.4368 London); L Barnes The New Boer War (1932, Hogarth) at 171–73.

7 Fombad and Quansah The Botswana Legal System, above at note 2 at 55; DDN Nsereko Constitutional Law in Botswana (2006, Pula Publishers) at 18.

8 See fully Pain, JH “The reception of English and Roman-Dutch law in Africa with reference to Botswana, Lesotho and Swaziland” (1978) 11 Comparative and International Law Journal of Southern Africa 138 at 149.

9 Bechuanaland and Protectorate General Administration Order in Council of 9 May 1891.

10 Footnote Ibid.

11 Footnote Ibid.

12 Crowder, M “Tshekedi Khama and opposition to the British administration of the Bechuanaland Protectorate, 1926–1936” (1985) 26/2Journal of African History 193.

13 Footnote Ibid.

14 Mgadla and Campbell “Dikgotla, dikgosi”, above at note 4 at 50; Crowder “Tshekedi Khama”, above at note 12.

15 See fully Gillet “The survival”, above at note 3 at 104.

16 K Linchwe ”Chieftainship in the 21st century” in G Sekgoma Botswana in the 21st Century (1994, Botswana Society) 395 at 398.

17 CLHLB-OOO148-10 (High Court) (unreported).

18 D Wylie A Little God (1990, Witwatersrand University Press), chap 1.

19 See the Order-In-Council of Her Majesty of 1 May 1885.

20 With the declaration of the country as a Protectorate in 1885, traditional administration revolving around the chieftaincy was gradually replaced with a three-tier colonial administrative system consisting of the high commissioner (resident in Cape Town), the resident commissioner (stationed in Mafikeng, South Africa) and the chiefs; see Linchwe “Chieftainship”, above at note 16.

21 Id at 397. Chieftainship in pre-colonial times was hereditary in the male line, normally passing from father to son. A chief was never elected. As a rule, a chief succeeds automatically to his office by right of birth.

22 SJ Sennanyana “A historical analysis of the origins, role and development of the House of Chiefs, 1961–1987” (unpublished LLB thesis submitted in partial fulfilment for the BA Humanities, May 1991, University of Botswana).

23 Roberts, S “Tradition and change at Mochudi: Competing jurisdictions in Botswana” (1972) 17 African Legal Studies 37 at 39.

24 I Schapera A Handbook of Tswana Law and Customs (4th ed, 1994, International African Institute) at 62.

25 See Wylie A Little God, above at note 18.

26 See Mgadla and Campbell “Dikgotla, dikgosi” above at note 4.

27 Schapera A Handbook, above at note 24 at 70.

28 Id at 63.

29 Id at 68–70.

30 It is said “kgosi ke modisa wa morafe” [the chief is the herdsman of the tribe].

31 Schapera A Handbook, above at note 24 at 69.

32 Gillet “The survival”, above at note 3; Proctor, JH “The House of Chiefs and the political development of Botswana” (1968) 6 Journal of Modern African Studies 59; Mgadla and Campbell “Dikgotla, dikgosi”, above at note 4.

33 Mgadla and Campbell, ibid.

34 See M Mamdani “Customary law: The theory of decentralised despotism” in M Mamdani Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (1996, Princeton University Press) 109.

35 Native Labour Proc 1907 (No 45 of 1907) amending the law relating to the recruiting of native labour, available at: <http://www.elaws.gov.bw/docs/statutes/Bechuanaland-HCP-1890-1929.pdf> (last accessed 18 October 2013).

36 See I Schapera Tribal Innovators: Tswana Chiefs and Social Change, 1795–1940 (1970, Athlone Press) at 53. In 1916, for example, Sechele II was forced to accept three councillors to help him rule the people because the people recognized his administrative inefficiency; see Mgadla and Campbell “Dikgotla, dikgosi”, above at note 4. Another interesting example can be seen in the letter written by Phethu Mphoeng and others to the resident commissioner on 21 January 1924, complaining about Sekgoma Khama's rule. In this letter, they urged the colonial administration to stop their chief's despotic rule and uphold the rule of law in their tribal territory; see fully “Petition to the resident commissioner from Phethu Mphoeng and others complaining about Sekgoma Khama's rule, 21 January 1924” Botswana National Archives S3/6.

37 See Schapera A Handbook, above at note 24.

38 See Mgadla and Campbell “Dikgotla, dikgosi”, above at note 4.

39 I Schapera “The political annals of the Tswana tribe: Minutes of the Ngwaketse public assemblies 1910–1917” (comm from the School of African Studies, University of Cape Town, 1974) at 7.

40 An instance of this occurred on 7 September 1933 when Tshekedi Khama, sitting in kgotla, sentenced a young white man, McIntosh, to flogging for assaulting a Mongwato who had tried to take away his girlfriend. On several occasions Tshekedi had asked the British magistrate to deal with the drunkenness and fornication of McIntosh and his companions in Serowe. Exasperated by the magistrate's failure to do so, he at last decided to do deal with it himself, although he had no right to try and sentence Europeans in his kgotla. The price Tshekedi paid was to be arrested under the guns of the navy, tried without legal representation, humiliated by a vehemently critical speech by the acting high commissioner in front of his subjects and indefinitely suspended from office. See Crowder “Tshekedi Khama”, above at note 12.

41 In one instance, Tshekedi Khama refused to accept the reversal of his judgment by the Special Court of the Protectorate, upon appeal by the Ratshosa brothers. He sought to, and indeed did appeal the finding to the Judicial Committee of the Privy Council. He even succeeded in his appeal. As far as Tshekedi was concerned, it was vital for his prestige that the judgment be set aside, for how could he credibly function as chief if “traitors”, whose property was destroyed according to custom, could then sue him successfully in a court of the very British administration which he believed should be supporting him. See Crowder, ibid.

42 Footnote Ibid; see also Mgadla and Campbell “Dikgotla, dikgosi”, above at note 4.

43 Proc No 74 of 1934 Bechuanaland Protectorate: High Commissioner's Proclamations and the More Important Government Notices from 1st January to 31st December 1034, vol XIX, 88, available at: <http://www.elaws.gov.bw/docs/statutes/Bechuanaland%20Protectorate%20High%20Commisioners%20Proclamations%201934.pdf> (last accessed 11 May 2015).

44 Proc No 75 of 1934, id, 96.

45 Gillet “The survival”, above at note 3 at 179.

46 Mgadla and Campbell “Dikgotla, dikgosi”, above at note 4 at 55.

47 Above at note 43.

48 Indeed sec 1 of the proclamation defined chiefs in a manner that excluded unrecognized chiefs: “In this Proclamation and in any rules or regulations made thereunder, unless inconsistent with the context – ‘Chief’ shall mean the chief over any tribal area who has been recognised in that capacity by the High Commissioner and confirmed therein by the Secretary of State and shall include an Acting Chief.”

49 1936 HCTLR 9.

50 “Plaintiff's declaration in the Special Court of the Bechuanaland Protectorate, 14 January 1936”: BNA S422/4.

51 Tshekedi Khama, above at note 49 at 31.

52 Native Administration Proc 1943 (No 32 of 1943); Native Court Proc 1943 (No 33 of 1943).

53 See Mgadla and Campbell “Dikgotla, dikgosi”, above at note 4.

54 African Administration Proc of 1954. See MJ Odell “Local government: Traditional and modern roles of the traditional kgotla” in LA Picard The Evolution of Modern Botswana: Politics and Rural Development in Southern Africa (1985, Rex Collings) 61 at 66.

55 See the 1960 Bechuanaland Protectorate (constitutional) Order-In-Council.

56 See DDN Nsereko Constitutional Law, above at note 7.

57 Footnote Ibid.

58 Footnote Ibid.

59 Z Maundeni “The struggle for political freedom and independence” in Edge and Lekorwe Botswana: Politics, above at note 2, 118 at 127–28. Khama, Masire and Bathoen were all key figures in the Botswana legislature. However it would be a mistake to assume that Seretse Khama was the most active politician in the Botswana Democratic Party's government. That description fitted his highly intelligent and effective deputy, Quett Masire. It was Masire who had visited Kenya, Ethiopia, Ghana and elsewhere for political discussions with African leaders.

60 Proctor “The House of Chiefs”, above at note 32. See also excerpts from a speech by His Excellency the first president of Botswana, Sir Seretse Khama, where he is recorded as saying inter alia that: “My government is dedicated to the democratic tradition and will not tolerate autocracy of any kind in Botswana. When I refer to the democratic tradition, I am thinking not only of Central Government institutions, but also of Local Government bodies … The change in the role of the traditional chiefs in Botswana of course reflects the progress of the country from a collections [sic] of tribes with local loyalties…”: “Evolution of contemporary local government in Botswana: Experts [sic] from the Bechuanaland Protectorate Legislative Council Paper No 21 of 1964”, available at: <http://www.gov.bw/Global/MLG/EvolutionMLG.pdf> (last accessed 11 May 2015).

61 Cap 41:01, Laws of Botswana.

62 See Linchwe “Chieftainship”, above at note 16.

63 Gillet “The survival”, above at note 3 at 105.

64 Act No 18 of 1970 Botswana Statute Law 1970, vol 54, F83, available at: <http://www.elaws.gov.bw/docs/statutes/Botswana%20Statute%20Law%201970%20Part%20I.pdf> (last accessed 11 May 2015).

65 Gillet “The survival”, above at note 3 at 105.

66 Act No 19 of 1987. The long title to the act reads: “An Act to re-enact with amendments the provisions relating to Chiefs …”

67 This provision is not without its problems, as it allows the possibility of a person not from the royal family to be recognized as a chief. This happened in the case of Gulubane v The Attorney General [2002] 2 BLR 224, although dealing with a sub-chief.

68 Chieftainship Act (cap 41:01) Laws of Botswana, sec 12.

69 Id, sec 13.

70 Id, sec 25.

71 See the cases of Kgosikwena v The Attorney General [2001] 2 BLR 513; Sechele v Attorney General [2002] 2 BLR 94; Gulubane v Attorney General [2002] 2 BLR 224; Gaseitsiwe v The Attorney General 1996 BLR 54.

72 High Court Rules, order 61; also Kgosikwena, ibid and Sechele, ibid.

73 Above at note 71.

74 The Ministry of Local Government, Lands and Housing.

75 Gaseitsiwe, above at note 71 at 57.

76 Footnote Ibid.

77 The section in its entirety read: “‘tribe’ means the Bamangwato Tribe, the Batawana Tribe, the Bakgatla Tribe, the Bakwena Tribe, the Bangwaketse Tribe, the Bamalete Tribe, the Barolong Tribe or the Batlokwa Tribe”.

78 See the remarks of Nganunu CJ (as he then was) in the case of Kamanakao and Others v The Attorney General and Another 2002 (1) BLR 654 (HC) where he stated: “The next complaint of the applicants relates to the Chieftainship and the Tribal Territories Acts. To understand the complaints of the applicants in relation to these two Acts of Parliament it is necessary to explain that the Tribal Territories and the Chieftainship Acts form a scheme together with secs 77 and 78 of the Constitution, whereby the greater part of the land mass of the territory of the Republic of Botswana is divided by the Tribal Territories Act into seven tribal areas designated to be those of the Bakgatla, Bakwena, Bamalete, Bamangwato, Bangwaketse, Batawana and Batlokwa tribes … Only these eight communities qualify for the designation of tribe and these tribes alone qualify to have traditional leaders who are recognised as chiefs under the Chieftainship Act. No other communities in Botswana are recognised as tribes even if they are ethnically separate and they are organised along tribal lines; nor can their traditional leaders be known as chiefs under the Chieftainship Act. Where the traditional leaders of other communities are recognised at all in the Act, they are referred to by lesser titles such as sub-chief and not all their leaders are or can be members of the House of Chiefs.”

79 Cap 32:03, Laws of Botswana.

80 Above at note 78.

81 Id at 659.

82 Id at 660.

83 See Constitutional Amendment Act No 9 of 2005. This amendment was necessitated as a result of the court's holding in the case of Kamanakao, id, which challenged the constitutionality of secs 77–79 of the Constitution that provided for eight principal tribes, to the exclusion of all other tribes. This provision was further mirrored by sec 2 of the Chieftainship Act which defined tribes by reference to the eight tribes. The minister could only recognize the chiefs of these eight tribes under the act (sec 2 definition of a chief, read with sec 4(1)).

84 Under the new act, the reference to “tribe” no longer means the eight tribes, but now encompasses all tribes in the country. Under the new sec 2 the definition of tribe means “any tribal community in existence and recognised as a tribe immediately before the commencement of this Act and includes such other tribal communities as may be so recognised under section 3”.

85 Bill No 13 of 2007 (8 June, 2007) Supplement B-Botswana Government Extraordinary Gazette.

86 See Dinokopila, BR “Recent legal developments in Botswana” (2007) 6 University of Botswana Law Journal 125 at 139.

87 Above at note 78.

88 Act No 9 of 2008 (cap 41:01) Laws of Botswana. The long title reads the same as that of the Chieftainship Act of 1987. This new act repealed and replaced the Chieftainship Act of 1987.

89 Chief was now termed kgosi, regent was now called motshwarelela bogosi, and so forth.

90 See Bogosi Act, sec 4(a).

91 Id, sec 17.

92 Above at note 17.

93 Id, para 16.

94 Interestingly, after the finding of the case, the chairman of the Ntlo ya Dikgosi, Kgosi Puso Gaborone of Batlokwa, is recorded as having said that there is nothing wrong with their people recognising them as kgosi kgolo [supreme leader], and that they are not authorised by the Constitution, the Bogosi Act or the High Court; see “CKGR Basarwa get help to re-commission borehole” (25 March 2011) Mmegi (Botswana), available at: <http://mmegi.bw/index.php?sid=1&aid=1983&dir=2011/March/Friday25> (last accessed 11 May 2015).

95 See Schapera A Handbook, above at note 24.

96 See fully K Miti and JC Chipasula Botswana in Southern Africa (1989, A Janta Publications).

97 Proctor “The House of Chiefs”, above at note 32.

98 No 19 of 1961.

99 Cap 04:05 Laws of Botswana.

100 Cap 16:01 Laws of Botswana. Sec 15 provides: “Subject to the provisions of this Act and any other written law a customary court shall administer – (a) customary law; (b) the provisions of any written law which the court may be authorised to administer by any written law … and in so doing shall give effect to the provisions of section of the Constitution of Botswana …”

101 See fully Morapedi, WG “Demise or resilience: Customary law and chieftaincy in the 21st century Botswana” (2010) 28/2Journal of Contemporary African Studies 215. Much customary law is not written and a great deal of it is passed on orally from generation to generation.

102 See A Molokomme “Customary law in Botswana: Past, present and future?” in G Sekgoma Botswana, above at note 16, 347.

103 See Fombad and Quansah The Botswana Legal System, above at note 2 at 82.

104 Proc 74 of 1934.

105 Proc 75 of 1934.

106 Proc 74 of 1934, sec 1 and Proc 75 of 1934, sec 2 respectively: the so-called “repugnancy clause”.

107 Cap 16:01 (as amended by the 2002 amendment), Laws of Botswana; See also Himsworth, CMG “The Botswana Customary Law Act, 1969” (1972) 16/1Journal of African Law 4.

108 The Constitution, sec 10(8). The point is further reinforced by sec 12(6) of the Customary Courts Act, which states: “No person shall be charged with a criminal offence unless such offence is created by the penal Code or some other written law”.

109 See an interesting discussion of this issue by K Frimpong “The status of customary law crimes in Botswana” (unpublished), mentioned by Fombad and Quansah The Botswana Legal System, above at note 2 at 83, note 101.

110 Crim App No 56/1980 (27 November 1980) (unreported).

111 Above at note 17.

112 Also known as the rule against infraction, in cases where the persons in question are obstructing peace in the community.

113 Cap 08:02 Laws of Botswana.

114 See the case of Petrus and Another v State 1984 BLR 14, which dealt with the constitutionality of corporal punishment as a form of punishment in Botswana. The court held that corporal punishment is not per se inhuman and degrading punishment because it is preserved under sec 7(2) of the Constitution. However, where it is administered in addition to a long and protracted sentence of imprisonment, then it amounts to inhumane and degrading treatment and punishment.

115 Cap 08:01 Laws of Botswana.

116 “The penal laws passed by Parliament itself are written and published in the statutes. They are easily ascertainable from the statute laws of the country. They do not exist somewhere in the memories of sages to be only ascertained and applied subject to the memories of those who claim to have a better memory of their content and the applicable punishments thereto. The coercive power of the State is constituted by institutions which have to operate within defined statutory regulatory systems intended to secure and protect the person from any infringement of the enshrined fundamental rights. Where wrongs have been committed in the enforcement of any of the State's coercive powers, there is generally a right of recourse against the State” (emphasis added): Kgafela per Lesetedi J at 27–28.

117 See Molokomme “Customary law in Botswana”, above at note 102.

118 Above at note 100.

119 See Fombad and Quansah The Botswana Legal System, above at note 2.

120 See Schapera A Handbook, above at note 24. Even the court in the case of Kweneng Land Board v Kabelo Matlho 1992 BLR 292 recognized this and hence the reason why it sought the evidence of a certain chief to determine whether the customary law had changed to permit private ownership of land.

121 See Linchwe “Chieftainship”, above at note 16.

122 MAHLB-000661-10 (HC) (unreported).

123 In this case, the court provided a detailed and in-depth analysis of why it would be unjust and unfair to deny a plaintiff the right to be heard in person. In so doing, the court highlighted the rationale for the audi alterem partem [let the other side be heard as well] rule and the importance of that rule. This last approach was also adopted recently by the highest court, the Court of Appeal, in the case of Molefi Ramantele v Edith Mmusi and Others CACGB-104-12 (unreported).

124 See Molokomme “Customary law in Botswana”, above at note 102.

125 Under this provision no-one can be punished for any offence which is not written and for which the penalty is not prescribed in a written law.

126 See Fombad and Quansah The Botswana Legal System, above at note 2.

127 It is suggested that, rather than complete annihilation, customary criminal law should be codified to preserve it.

128 Above at note 17; see the judgment of Lesetedi J at 33–34.

129 This would perhaps explain the reason for sec 4(a) of the Bogosi Act, above at note 90.

130 Linchwe “Chieftainship”, above at note 16 at 399.

131 See Sir Seretse Khama's statement in his opening speech in “Evolution of contemporary local government”, above at note 60, where he is recorded as having said: “We now have in Botswana a system of elected local councils with executive powers and these embody a non-racial, representative and responsible form of Local Government which reflects the nature of Central Government. My Government will not tolerate any improper activity which is directed towards frustrating the efficient and legitimate functioning of these Local Government bodies … Autocracy and traditionalism must give way to the authority of these bodies when they are operating in their legitimate spheres.”

Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid