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 103Google Scholar.

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 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 149Google Scholar.

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

10 Ibid.

11 Ibid.

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

13 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 39Google Scholar.

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 59CrossRefGoogle Scholar; 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 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 Ibid.

58 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 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 139Google Scholar.

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 215CrossRefGoogle Scholar. 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 4CrossRefGoogle Scholar.

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.”