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Prejudice against Customary Law

Publishing Date : 26 September, 2017

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A close reading of the Customary Courts Act of Botswana, furnishes the Act, as a result not of concerted bargaining between the patrons of the customary law and the imposter patrons of Botswana’s non-native laws. 

So that the conclusion was inescapable that Botswana’s customary law Act (CLA) was in fact a representation of (non-native) civil and criminal law, prescribing to customary law, not customary law prescribing its native jurisdictional properties and rules of conduct to the non-native civil and criminal law aspects of Botswana. One was native in legal tradition and subordinate to the other. The other was founded on non-native legal tradition and was the superior to the other. This represented the first prejudice against customary law.  

Because of the aforementioned imposter properties of the Act, textured and flavored by non-native legal decrees of dominance over native law, the Act has shamelessly defined customary law as the “customary law of a tribe/tribal community, so far as such law was not or is not incompatible with the provisions of any written law or so far as such law was not contrary to morality, humanity or natural justice.”

This added conjecture constitutes in the writers opinion, the second property of prejudice against customary law for reasons we shall share with the reader shortly. The third and final prejudice against customary law, and which was also ‘the’ most discreditable ingredient concerning it was that in terms of the Act, the term: “Laws of Botswana” referenced or concerned only common law and statute law from time to time in force in Botswana, but it does not include customary law”.

For each of the above claimed prejudices, there was happily an alternative antidote to pursue. Against the first, was the open option and alternative to recognize the sovereignty and ancientological properties of customary law.  Against the second, was the alternative to have let custodians and patrons of customary law outline its purposes, content and processes, than to be content to legally decree that its substantive properties were deserving conjecture upon an external conquering legal tradition. Against the third prejudice, was the open option and alternative to have quite simply honorably included customary law as part of the “laws of Botswana”.

The property of conjecturing the admissibility and applicability of Tswana tribal law to Tswana communities on its agreeability and compatibility “with provisions of any written law”, being in this case, non-native written law, was highly prejudicial. Was the un-coded and oral character of customary law, a sufficient and needful force which removed from the law, its substantive and procedural properties?  Why then was the admissibility of the native unwritten law weighed against provisions of the written non-native versions?  The continued conjecture that such native law was law only in so far as it was not incompatible with morality, begs the question: “incompatible with whose morality?”

Tswana customary law was founded on Tswana morals and Tswana intellect and Tswana opinion and Tswana taste. Which other morals (opinion, taste, and intellect) need they be compatible with before they could become “law of Botswana?”  The author finds this a very clear case of needless subjugation and torment of people and their laws by an out of season, legal mythology.

Customary law pre-exists the “law of Botswana” which law, has within it every law except that which was Tswana in origin and purpose! Its sovereignty has been diminished, but not terminated. Her very recent history and experience of torment and turmoil and oppression and attempted subjugation and economic deprivation, should inspire her (not be anaesthetized against inspiration) to assert her rights and her identity. And “she” (as native law and her patrons; the chiefs) was due to re-build her tribal court systems with edifying (than with un-edified) legal provisions, so that she may resurrect achieve a sense of self-rule within her tribal legal systems.   

The forced dependency of customary law and of its patrons on the “laws of Botswana” (and its patrons) as provisioned in the Customary Court Act has not been successful in replenishing the social and cultural fabric that could/should support vibrant and healthy tribal communities and families. Some of the unforeseen and unforeseeable opportunities this dependency has caused Batswana to forgo have been the potential virtual elimination of tribal unemployment and it has been sustained therewith.  

It was amply written by persons of much greater wisdom than mine before this day that the successes of self-determination were not solely economic but it has also enabled investment in award-winning efforts to replenish native/tribal languages use, which was an important cultural signal of cultural independence in a politically independent sovereign.  But because native self rule or tribal legal sovereignty was initially not pursued, the forgone economic, social and tribal successes of it were largely unknown, although not unknowable by the governments of the day.

The power of tribal territories and of the tribal communities within the sovereign republic of Botswana to govern commerce and nature affairs on their reservations and on their places of tribal jurisdiction has been a point of attack so much that much of the ongoing opinion of nations favors continuity of limits to tribal power/customary law power. This was sustained against the backdrop of the fact that tribes have historically and are contemporarily world customary forces, and today they exist merely as potential economic engines, for the greater all.

Why was it that even against the background of subjugation, tribes and the customary law order, continue to remain substantial in influence of tribal communities and as objects and subjects of tribal honor? It lives on, albeit with limited sovereignty. The answer it seems lies that the roots of customary law/tribal laws pre-exists its “jailers”. It was also testament to its non-time based commission by HE who initially founded tribes among men and established patrons among men as leaders and enforcers of such native law to provide guidance to the tribes on the rightful use and rightful self-governance.

Customary law order was not merely sought, through this and other previously written appeals for it to gain recognition in modern law, but it was critical for a shift in attitude from it merely being a quest for its commensurate legality, to a quest for government to begin to see it as the life blood of tribes. Its institutions and practices were self-sufficient to act as key levers, like they did, before, to provide protection and promotion of community interests and the well being of the tribal subjects.  The experiment to run Botswana’s tribal communities without this lever, the social, cultural and economic viability of Botswana’s tribal communities and identities has remained untenable, and it shall remain so over the long run, if the present discourse was sustained.   

For this and other possible reasons, customary law required sovereignty and surety of continued existence. To do this there was need to extend it’s de jure recognition by the ultimate sovereign with de facto power to impose its will, which was more or less presently being pulled toward and away from doing so.

D.T. ORUFHENG (B.A. Pol. Sci.(University of Botswana) & Diploma in Philosophy, History, Jurisprudence and Economics of Liberty (Cato University))



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