Wazha G. Morapedi
University of Botswana
Paper Prepared for CODESRIA’s 10TH General Assembly on "Africa in the New Millennium", Kampala, Uganda, 8-12 December 2002.
Translations and Explanations of setswana terms
Batswana – Citizens of Botswana
Setswana - Language of the people of Botswana. It can also be used to mean the morns, practices and customs of Batswana. Its use depends on the cotext.
Kgosi – Chief (pl. dikgosi)
Morafe – Tribe (ll. Merafe)
Bogosi – (Chieftainship – the institution)
Kgosikgolo – (Paramount Chief)
Motshwareledi (Regent)
Kgotla – (Village Assembly, can also mean the court where cases are heard)
Introduction and Pre Colonial Setting
What Rey’s colonial administration in the 1930s had failed to accomplish, the post-independence government had managed to achieve. They removed the powers of the dikgosi by creating new administrative institutions, to do some of the work done by dikgosi previously.’ (Tlou and Campbell 1997: 336).
The capacity of Chiefs to open up to non royal advice will determine in a large measure their responsiveness to modern trends. The survival of the institution of chieftainship will depend on the dynamism and responsiveness it displays in the face of changing realities in the society. (Linchwe: 1994: 396).
These statements captures the main concerns of the present work. These are the erosion of the powers of dikgosi during the colonial era, the scraping off, of what was left of those powers by the new government after independence, and the resilience and survival of dikgosi and the institution of bogosi to the present, albeit in a highly transformed manner.
The paper analyses selected aspects of customary law in Botswana as it relates to the institution of bogosi from 1885 to the present. Botswana is a multi-ethnic country, consisting of setswana language speakers and non setswana speakers, but the name Batswana is an all embracing term used to refer to all citizens of the country. The setswana groups belong to the Sotho-Tswana language group, while non setswana speaking groups such as Basarwa, Basubiya, Babirwa and Bakalanga have different origins. In this study, the customary law on bogosi to be presented is largely concerned with the setswana speaking groups. Owing to their origin, setswana speaking groups share similar customs, norms and traditions. The nature of bogosi among setswana speakers in the pre-colonial, colonial and post colonial periods has attracted massive scholarship. Many of the works on this subject deal with the powers, duties and privileges of dikgosi and show how they have been undermined by the colonial and post colonial government. Among some of these scholars are: (Schapera 1938, 1970, Procctor 1965, Sekgoma, Mgadla 1989, 1994; Lekorwe and Somolekae, 1998).
In order for us to demonstrate how customary law on bogosi has been undermined or enhanced throughout decades of changes, it is imperative to re-state some of the issues and conclusions that have been visited and re-visited by earlier studies. We also intend to venture into the role played by Botswana society in the transformation of bogosi in the colonial and post colonial periods. This is the area that has not been accorded much systematic analysis in previous studies. In short, we concentrate on the powers, duties and privileges of dikgosi as understood under customary law, and the changes that have occurred in the institution of bogosi from 1885 to 1965 (colonial period), and from then on to the present independent Botswana. The paper endorses the position adopted by numerous previous studies that the colonial state reduced and undermined the powers of dikgosi, and the institution of bogosi as understood under customary law. It also accedes to the conclusions that the post colonial state further eroded and diminished the powers of dikgosi and undermined the institution. It emphasises the fact that the position of dikgosi became even worse in the independent state for various reasons. However, the point of departure from some of the previous studies is in its argument against the conclusion that the institution is bound to die a natural death, or collapse under the weight of state legislation. We argue that although changes in the colonial period weakened the institution of bogosi, Batswana were prepared to see it survive and accepted its survival in that reformed and weakened state, that is, a change of duties and powers customarily held by dikgosi to those prescribed by the new colonial administration. Despite its weakened status in modern Botswana, bogosi, backed up by the flexibility of customary law which enables it to adapt to modern albeit, subservient roles to the state continues to enjoy sizeable support, especially in the rural areas. It argues that society at large seems to have accepted the new roles of the dikgosi as prescribed by the government, and dikgosi have realised that compliance remains their only chance of survival.
The concept of customary law is a complex phenomenon which is not easy to define. Ian Hamnett defines it as, ‘a set of norms which the actors in a social situation abstract from practice and which they invest with binding authority." He emphasises the fact that a critical factor of most customary law is that it is unwritten. There are no written records in customary law and this means the idea of precedent is difficult to utilise. This aspect allows customary norms to be flexible and adaptable and to function as ‘instruments for legal change rather than the fossilised remnants of a dead past’. (Hamnett 1975: 16) Presenting a paper on customary law in Botswana, Athalia Molokomme provided a comprehensive and embracing definition of the concept of customary law. She contends that, "Customary law means different things to different people, at different points in time." In whatever manner it is used, ‘customary law should be understood in its social, cultural, political and economic context." In the case of Botswana, Molokomme provides various meanings of the term customary law. There is what she terms "Traditionalists Customary Law." This encompasses the ‘values’, ‘traditional norms’ habits and other principles which have been linked with different Batswana ethnic groups before contacts with Europeans. Used in this context, customary law is equated with traditional and cultural values as shown in setswana phrases ngwao ya setswana (setswana culture) mekgwa le melao ya setswana (ways and laws of setswana). This type of law is regarded as legitimate and is often employed by traditionalists in efforts to resist the coming of new laws and policies. (Molokomme 1994: 348-349). Today very little is known about ‘pure’ customary law because it was practised about two centuries ago and it was not written. What exists is what has been passed on from generation to generation orally, and some of this has been lost or changed by the socio-economic and political transformations which have since occurred over the long period (ibid)
According to Molokomme, the second kind of customary law is the ‘Living Customary Law.’ This ‘describes a way of life based upon certain norms of behaviour which are based, in varying degrees, on tradition.’ This ‘living’ or ‘contemporary’ customary law is shown by the way of life of many people in both rural and urban Botswana. This law is not static, because it is dynamic, negotiable, flexible, fluid and is a reflection of the peoples adaptation to socio-economic changes occurring in Botswana society. This type of law is viewed by traditionalists as contaminated by modernisation and other western ways. However, this customary law is often closer to the real lives of ordinary people. These definitions of customary law are not exhaustive or water-tight compartments. (ibid). Both authors emphasise the fact that customary law is not written, and for Botswana, this aspect of customary law has also been noted by Isaac Schapera, who further maintains that many Tswana practices, traditions, values and norms are inherent in the social system, and they have been developed, used and accepted over time. (Schapera 1938: 87). In this study, we shall adopt these definitions and utilize them to analyse situations where they apply.
The Pre-Colonial Setting
In many pre-colonial African societies, one could assume leadership of a society because of various reasons. A man could save his kinsmen from disaster such as war or drought, or one could accumulate wealth and gain a lot of support. On the other hand one could excel in hunting or perform a memorable feat, and hence be accorded a leadership role by society.
The pre-colonial Tswana states were autonomous or independent political entities. Each Kgosikgolo (paramount chief) was the head of his own tribe and did not owe allegiance to any other superior authority. In setswana customary law, a kgosi was (and still is to a large extent) born. Bogosi was hereditary in the male line, passing normally from father to son, hence Schapera’s saying that, ‘A chief is never selected". (Schapera 1938: 42). On the death of a kgosi or his retirement due to old age, his eldest son would automatically accede to the throne. This rule appears to have been largely upheld during the pre-colonial period although there were a few cases where bogosi was acquired through some unconventional methods such as trickery or force.
If the eldest son was still too young to assume the reigns of power, his uncle would rule as a Motshwareledi (regent). No woman could assume the position of Kgosi. The installation of a setswana kgosi was done by his people in a kgotla (village assembly), where his uncle drabbed him with a leopard skin (Schapera 1938: 62). Setswana customary law conferred immense powers and privileges on a kgosi. According to Schapera:
The Chief, as head of the tribe occupies a position of unique privilege and authority. He is a symbol of tribal unity, the central figure round which the tribal life revolves. He is 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 (Schapera 1938: 62).
However, although the Kgosi had great powers and commanded immense wealth, he had some duties and obligations to his subjects. In times of stress, such as drought, he would redistribute cattle or grain to his subjects (ibid), and he had an obligation to protect his people, take care of the needy in society and be hospitable to visitors. He was supposed to be generous in return for the privileges accorded him, and use his wealth for the general welfare of the community" (Lekorwe et., al 1999: 188). The immense powers, prestige and superior status of the kgosi did not mean that he was an autocrat who was above the law. There was a council of advisors, normally drawn from the kgosi’s senior relatives such as his uncles which limited the manner in which the kgosi exercised his powers, and acted as checks and balances on the way in which he conducted tribal matters. He was obliged to cooperate with his subjects as this would make him a real chief as symbolized by the setswana saying, "Kgosi ke Kgosi ka Morafe "(A chief is a chief by grace of his tribe), He was thus obliged to cooperate with his subjects and advisors. (Schapera 1938: 84).
All matters of public domain were dealt with before the general tribal assembly attended by men in the kgotla. In addition to being a public meeting place for discussing crucial issues in the village and being a place where laws were made, the kgotla was also a court where civilian and criminal cases brought before the kgosi were adjudicated. (Schapera 1938: 80-81 Ngcongco 1989: 46; Mgadla 1989: 48). The pre-colonial situation outlined above epitomized setswana customary law regarding the institution of bogosi and dikgosi. This was the situation on the eve of colonialism, although some of the features just outlined had been affected by contact between Batswana societies and outside forces such as missionaries, traders and travellers since the beginning of the nineteenth century.
Botswana became a British Protectorate in 1885. Britain declared a Protectorate over the autonomous Tswana states reluctantly The declaration came about only as a result of the imperial contest between the Germans, the Portuguese and the Boers during the scramble for Africa. Britain dreaded the spectre of Botswana failing under any of her rivals because that would seal off the "road to the north", which was a gateway to the ‘riches’ of central Africa and beyond. We shall not labour on the details of how the exercise was implemented and the reaction of Batswana, suffice it to mention that some Batswana dikgosi initially opposed the declaration of a protectorate because they felt that there were no external threats to their independence. In the end however, they reluctantly accepted British "protection".
The British Protectorates in Southern Africa (Botswana, Lesotho and Swaziland) were headed by a High Commissioner stationed in South Africa. In the case of Botswana, there was also a Resident Commissioner responsible for the daily administration and he was also based in South Africa. The British did not want to carry the burden of administering poor Botswana, hence the adoption of the ‘indirect rule’ system in which the dikgosi were to be used to govern their own people as they had before. With a skeletal administration of a few Resident Magistrates, the Border Police and other minor officials in Botswana, Britain started introducing laws (Proclamations) and orders some of which eroded the powers of dikgosi, contravening Tswana laws and customs in the process.
The Bechuanaland Protectorate, as Botswana was known during the colonial period was established by an Order-in-council of 1885. This piece of legislation conferred upon the High Commissioner powers to legislate for the country, but in the execution of that duty, he had to respect "Native Laws and Customs" of Batswana. From 1885, the system of indirect rule employed Roman Dutch law in Botswana, and this existed alongside an African administration that was still administering setswana laws and customs (Mgadla, 1994: 50).
The first and real significant move in the assertion of colonial power, a move which heaved off some major powers of dikgosi came through the Order-in-Council of May 9, 1891. This legislation, "…empowered the High Commissioner on the advice of administration officials, to suspend, fine and dispose uncooperative or troublesome dikgosi and to draw boundaries between the various Tswana nations" (Mgadla 1994: 50). Prior to this measure, the dikgosi had, even now under British protection continued to exercise their roles, functions and powers over their subjects in the usual manner, employing setswana laws and customs in the kgotla. (Mgadla ibid).
The Order-in-Council had negative effects on the institution of bogosi. This legislation was the first step in the beginning of the gradual erosion of the legislative powers of dikgosi. With this legislation, the High Commissioner could only respect setswana law and customs only if they were compatible with British laws, interests and policies. The Order meant, "…that chiefs were now responsible to the British and not to their subjects" (Lekorwe 1998: 189). The 1891 Order-in-Council gave the High Commissioner powers to make laws for the Protectorate, appoint government officials and interfere in tribal affairs. Gilbert Sekgoma argues that in cases where there was conflict between British and setswana interests and laws, Her Majesty’s position took precedence, and that this was an indication of who wielded real power (Sekgoma: 2). It can be observed that this proclamation was a direct affront to customary law regarding bogosi. Batswana dikgosi and their advisers made laws in the kgotla, and they were promised that they shall continue to govern as they had done in the past. If High the Commissioner was now empowered to make laws and interfere in tribal affairs, this meant that a kgosi no longer had supreme legislative powers because those customary laws that would conflict with British interests would be nullified.
Some Batswana dikgosi realized the early impending threat to their authority and contested the new measures, accusing or arguing that British actions amounted to interference in the affairs of their merafe. Kgosi Sebele II of Bakwena ignored British orders, and as punishment, he was slapped with a fine of 10 head of cattle. The colonial administration even considered deposing him for his uncooperative behaviour in favour of his brother. The idea of deposing the kgosi was abandoned after the realization that Sebele commanded greater support than his brother (Mgadla 1994: 50). In this case, the British were swayed by the atmosphere prevailing in the society. They were not prepared to face the consequences of a possible revolt, which would have been expensive to quell, and hence they did not trample on the customary law regarding the remedy to be applied to an unsuitable kgosi – deposition by his subjects in a kgotla.
The colonial administration was adept at gauging the general opinion of society in matters regarding bogosi, and hence some of their policies and actions were based on the general concerns of the public. This is exemplified by the 1893 debacle between kgosi Sekgoma Letsholathebe of Batawana and the colonial authorities. Letsholathebe had been opposing British laws and missionary activities. As a form of punishment, the Resident Commissioner deposed him and replaced him with Mathiba Moremi (also from the royal house). The Batawana morafe was divided on the rule of their Kgosi (Mgadla 1994: 50), and the administration realised that its drastic measures would not be met with stiff resistance. Commenting on the role of Batswana in determining colonial actions at this juncture, Mgadla maintains that, "Even if the kgosi did challenge colonial policy, the administration was hesitant to remove the Chief unless there was clear support in the Kgotla for such a decision". (Mgadla 1994: 51). On the Batawana incident, it seems the morafe, or a large section of it was not prepared to confront the British on the issue, probably feeling that the action taken was appropriate.
During the early phase of colonialism, it appears some dikgosi started taking advantage of colonialism to enhance their authority and positions even by indulging in some activities which were not necessarily customary. On the other hand, it would appear that Batswana were also becoming increasingly aware of their influence on colonial actions, as well as exploitative designs by their dikgosi which were not sanctioned by customary laws. This atmosphere came to surface with the Native Labour Proclamation of 1907. This proclamation, "made it illegal for dikgosi to bind themselves by contract to the provision of labour." Batswana dikgosi had wanted to raise funds for development and the payment of taxes by sending young able bodied men to South African mines. This was largely opposed by Batswana who regarded these measures as exploitative and unnecessary. The intervention of the colonial government by preventing dikgosi sending Batswana to the mines meant the powers of dikgosi in this area were curtailed and the welfare of the larger society enhanced. In this case, the administration had, "restricted the dikgosi because of popular demand" (Mgadla 1994: 51).
In the early decades of colonialism, that is before 1920 the dikgosi were gradually being incorporated into the colonial central government system. However, during this phase of indirect rule, the colonial state did not interfere much in the customary laws and institution of bogosi. (Mgadla ibid; Molokomme 1994: 352). The colonial administration was content with their use of dikgosi as agents or emissaries to the general populace. In order to achieve that, the administration set up the Native Advisory Council later (African Advisory Council) in 1919 for Africans to have a forum of airing their views to the administration. This council, which was chaired by the Resident Commissioner comprised of dikgosi and some headmen who were chosen in the kgotla as members. The council, "…lacked any sense of popular representation in that the elected councillors were chosen by dikgosi without adequate consultation with their people in the kgotla." One of the interviewed elders on the nature of representation of the council testifies its lack of touch with the society at large:
Deliberations and resolutions made at 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 to say in deliberating over them, contrary to the democratic practice of dikgotla (Mgadla 1994: 53, interview with Masimega Tshosa ward, Molepolole, 18 Nov, 1987).
In this instance, it would appear dikgosi were interested in promoting their own interests and serving the interests of the British rather than those of their subjects. The British colonizers were undermining the deliberative process of the kgotla and this was likely to alienate dikgosi from their people because they had departed from the traditional practice of consultation. These practice demeaned dikgosi in the eyes of the society, and when the colonial administration flexed its muscles in the not too distant future, and further eroded the powers of dikgosi, they will have little sympathy from their subjects. This was the situation in 1926 and 1927 when a legislation was passed "removing civil marriagess and boloi (witchcraft) from dikgosi’s jurisdiction (Mgadla 1994: 53), and more of such measures would be undertaken during the highly confrontational years of 1934 to 1943 between the colonial government and dikgosi.
The Phase of Heightened Confrontation, 1934-1943
In the late 1920s and early 1930s, some dikgosi became more autocratic in dealing with their subjects, despite the introduction of legislation by the colonial administration aimed at reducing their powers. This could have been due to the realisation of their weaknesses vis-à-vis the administration and hence the need to portray themselves as powerful by being autocratic (Lekorwe 1998: 189). Two leading dikgosi in the protectorate were accused by their subjects of autocratic tendencies in a letter sent to the Resident Commissioner in Mafeking. The residents alleged that kgosi Bathoen II of Bangwaketse ‘…made his people work without food", and that his orders , ‘cannot be questioned". In the same letter, residents had described kgosi Tshekedi Khama of Bangwato as, "the most absolute tyrant that ever sat upon the Bangwato chieftainship". However, it should be noted that the colonial government was partly responsible for some of the dictatorial tendencies displayed by some dikgosi. Due to some changes which had occurred in society over the years, such as access to western education and the effects of migrant labour, Batswana were also becoming distasteful about the behaviour of some dikgosi. The unbecoming behaviour of the dikgosi and the reaction of some sections of the merafe has been described succinctly by Schapera thus:
Freed by the support of the administration from tribal sanctions formerly restraining him, (kgosi) he often tended to care more about asserting the rights that remained to him than about his corresponding duties and obligations. He became more autocratic and exacting and less willing to consider the welfare of the tribe or to use his wealth for its benefit. All this the people began to resent, a tendency reinforced by educational advancement and the possibilities of escape opened up by labour migration (Schapera 1938: 86)
Schapera reiterates that while civilisation may not have ‘destroyed fidelity’ to the kgosi, it made Batswana to be more critical of the conduct of dikgosi. This occurred at a time when the colonial administration had removed the mechanisms and remedies that society used to employ against oppression and abuse. (Schapea ibid). This could also be another reason why Batswana did not react strongly to the introduction of legislation reducing powers of dikgosi, which legislation contravened their customs and traditions.
The years 1934 to 1943 witnessed the beginning of increased colonial intervention in Batswana’s legal and political affairs. This was after Colonel Charles Rey was appointed Resdent Commissioner in 1927. Rey envisioned that the lack of development in Botswana was due to the dictatorial powers of dikgosi, and hence he enacted two draconian proclamations, namely the Native Adminsitration Proclamation No. 74 of 1934 and the Native Tribunal Proclamation No. 75 of 1934 to ‘tame’ dikgosi. (Steenkamp 1994: 296-297). During this period, the colonial administration felt strong enough to institute measures which would further reduce powers, privileges and functions of dikgosi (Sekgoma: 3), and hence further undermining customary laws governing bogosi. These two proclamations were passed in 1934 to achieve these aims. The Native Administration Proclamation provided for the recognition, approval, dismissal and suspension of dikgosi by the High Commissioner. Furthermore, "the High commissioner was also given the power to refuse to recognize and approve newly appointed chiefs, despite the support those chiefs might command from their people," in the interest of public good and good government. The proclamation also introduced Native Councils to assist dikgosi in administering their tribes. This seriously eroded the independence and power of bogosi because now dikgosi were no longer able to rule as they saw fit, but were subjected to the advice of tribal councils (ibid). The Native Administration Proclamation whittled down powers of dikgosi and changed Tswana law and customs on the institution. It stipulated that a successor to a kgosi should be appointed by the tribe at the kgotla, and the new kgosi had to obtain the recognition of the High Commissioner. The proclamation ordered that the name of the newly appointed kgosi should be submitted to the Resident Commissioner for consideration. This, according to Lekorwe and Somolekae, ‘constituted a major deviation from the Tswana law of succession. It obviously weakened the position of the chief within the community.’ (Lekorwe 1998: 189). Considering the manner in which some dikgosi behaved in relation to their subjects during this period, it would appear the general population somehow ignored or maintained a low profile in the saga (the court battle which followed). The proclamation had the effect of rendering dikgosi mere civil servants of the government as they were now bound to promote colonial interests and the interests and ignore those of their subjects. Lekorwe further emphasises the predicament that the dikgosi found themselves in, by stating that for one to become kgosi, they needed British recognition, and the colonial government could withhold recognition of a kgosi who was regarded as being anti colonial. They could even proceed to take the drastic action of appointing their puppet to the postion of kgosi.(Lekorwe et,al 1999: 189). However, in practice, customary laws on bogosi remained resilient because in instances where the British would fall out with a kgosi, they would install a royal who had some semblance of recognition and legitimacy from the morafe, and they would not appoint a commoner, or an outsider with no royal connection.
The native proclamation reaffirmed the dictates of the 1891 law which deprived the dikgosi the powers to try serious cases such as those involving murder, rape and treason, and transferred these powers to the magistrate court and the high court. These laws affected the position of dikgosi adversely because now they could only deal with relatively minor cases and those involving customary law and customs. Sekgoma argues that the colonial administration viewed these measures as "desirable reforms aimed at modernizing outmoded and autocratic institutions and thus making them amendable to modern forms of administration.’ (Sekgoma: 4 ).
Batswana dikgosi namely Tshekedi Khama of Bangwato and Bathoen II of Bangwaketse took the colonial administration to court for what they regarded as an affront to their powers. They argued that this was a breach of a promise of non-interference in the affairs of merafe made by the British when declaring the protectorate. They protested that the Order-in-Council of 1891 had not altered their powers. (Mgadla 1994: 54) However, they lost the legal suit. A decade later in 1943, the administration issued a series of other proclamations to placate dikgosi and neutralize the effects of the 1934 proclamations. Proclamation No. 32 of 1943 was designed to repeal the earlier Native Administration Proclamation. However, it didn’t change the essence and effect of the 1934 proclamation because it still provided the High Commissioner with powers to recognize, suspend or dismiss a kgosi or kgosana (headmen), whose actions were considered a "threat to good order, public peace and good government". (Sekgoma: 4).
The 1943 proclamation introduced a new phenomenon, that of the native authority. This was a new concept in tribal administration. The new authority took over the function of dikgosi which had been vested in the native councils by proclamation No. 74 of 1934. Under the new proclamation, a kgosi was now required to work with members of the native authority and decisions were to be arrived at through consensus or majority vote. On the effects of this proclamation, Sekgoma observes that,
This requirement had the net effect of reducing the Chief’s power in his kgotla and seriously constrained his freedom of action on matters which affected his constituency. (Sekgoma: 5).
Through this action, the British gave more authority to the community in that this allowed for consultation between the authority and a kgosi. This change was accepted by the society as it would counter the dictatorial tendencies displayed by some dikgosi earlier on.
The 1943 proclamation only brought back some minor powers previously held by dikgosi. The kgosi could now make some laws in conjunction with the morafe. The crucial issue was that the kgosi had first to consult with the morafe at the kgotla. The kgotla on this occasion again assumed its critical role in Batswana affairs because the kgosi had to consult it, and not the tribal elders alone (Mgadla 1994: 55). Batswana wanted to participate in decision making in the kgotla, and instances of challenges to the authority of dikgosi by educated Batswana like Simon Ratshosa is evidence that society was changing because of education and other factors such as the effects of migrant labour.
Dawning of a new Era: Independence and the Crippling of Bogosi
If dikgosi had entertained any hopes that their powers would be restored after independence from an African government then those were dashed even during the transition period. The struggle between the young and educated politicians who led the country to independence and dikgosi started during the constitutional talks in 1963 (Tlou 1997: 335). At stake was the issue of how much powers to give to dikgosi. Ultimately the young politicians agreed to accord dikgosi some recognition, but reduce their powers. The new democratically elected government of Botswana was determined to shut out dikgosi from wielding political power. It wanted to build a country where national interests superseded tribal ones. Bogosi was not abolished at independence as was the case elsewhere in other African countries such as Tanzania and Guinea. In the latter, the institution was regarded as irrelevant. (Lekorwe, et.al, 1998: 190). In Botswana, the government introduced a series of legislation which further reduced the powers of dikgosi and rendered the institution almost meaningless (ibid)
At independence in 1966, Botswana adopted ‘liberal democratic’ system of government modelled on the Westminster system. The new constitution that was adopted entailed separation of powers, with legislative powers being the preserve of parliament, policy making powers falling under the executive and judicial coming under the judiciary. The new system of government differed with the pre-colonial setswana government where judicial, executive and legislative powers were vested in the kgosi (Lekorwe, et, al. 1998: 190).
From its inception the post colonial state cherished the establishment of a plural democratic government based on the rule of law and a free enterprise economic system. These values could not be accomplished without some radical reforms of the traditional Tswana political system. In addition parliament, the constitution also provided for a house of chiefs. The function of the house of chiefs was to advice the government on matters concerning customary laws and tradition. The house could also call on a minister to answer questions and clarify matters. This institution had no legislative powers and its opinions and advice were not binding on government. (Proctor: 1968: 22).The house only played an advisory role and had no significant power. Dikgosi, as would be expected disapproved of the house on this aspect
The first piece of legislation which indicated that the new government had relegated bogosi to the background and had started to wrest the remaining powers and enhance the earlier colonial legislation was the chieftainship Act of 1965. The Act recognised the institution of bogosi, but it explained the position of dikgosi in relation to the government by stating that:
… no person shall hold or assume chieftainship of any tribe or exercise or perform any of the powers of a chief unless he has been recognised as chief of such a tribe under this Act. Such person shall have to be designated by a tribe assembled at a kgotla in the customary manner, and his name shall be sent to the president …The president shall by notice in the Gazette, recognise the person so designated as chief of such tribe (Lekorwe, et, al. 1999: 190)
Lekorwe and Somolekae have candidly assessed the effect of this piece of legislation on the kgosi. They argue that this provision of the Chieftainship Act in effect means the president can choose not to recognise a kgosi for any reason known to him. They further argue that the President’s reason for choosing to recognise a kgosi was similar to that of the colonial government where a kgosi had to be loyal and subordinate to the central government. In this regard, a kgosi was recognised for political reasons. (ibid) analysis.
The Act of 1965 was further strengthened by the Chieftainship Amendment Act of 1970 which placed dikgosi under more closer control by the government. The amended Act accorded the president powers to unseat a kgosi without waiting first to receive complaints from his subjects. The President could appoint a regent to rule a morafe if the rightful heir was not ready to assume office after consulting the morafe. This Act means that in ‘Botswana the decision to recognise the appointment of a Chief is the prerogative of the President.’ The Chieftainship Act of 1965 has almost the same impact as the 1934 Act in that it denies dikgosi some of their most cherished powers. Thus, the subjection of succession to presidential recognition was a practice that was inherited from the colonial administration. (Sekgoma: 8)
The Botswana government has continued its onslaught on the dikgosi in the past three and a half decades. The Chieftainship Amendment Act of 1987 was one of the laws which progressively subordinated the dikgosi to the government. This Act placed dikgosi under the Minister of Local Government, Lands and Housing. The Act maintains that, ‘the Chief can be designated as such in accordance with customary law by his tribe in the traditional assembly, but that he has to be recognised as such by the minister" (Lekorwe, et, al. 1998: 191). In line with this, it has been noted elsewhere that in independent Botswana, succession to bogosi is not based on the dictates of customary procedure in selecting the rightful heir, but it depends on whether the selected heir is acceptable to government. (Sekgoma: 8). The Act empowers the minister to suspend a kgosi if he/she has valid reasons to believe that the kgosi of any morafe has abused his powers or is not capable of excising them. After this suspension, the minister can order an enquiry and consider representation from the chief’s side. Following this enquiry, the Minister can dispose a kgosi from bogosi for a period of not more than five years. ‘The Act has, therefore, continued to elevate the status of politicians at the expense of chiefs." The intention of this Act was to obtain cooperation from dikgosi, denigrate their political influence and restrict their ability to act freely. Exercising her/his powers under the Act, the minister of local government can simply remove a kgosi from office just like a civil servant, although a kgosi comes from a royal house. (Sekgoma: 8) These measures have prompted some of the dikgosi to voice their concerns, with the paramount kgosi of Batawana complaining that, "The contemporary chieftainship institution is not the same as chieftainship in the ancient days because government has relegated it to the status of a lower profile civil service" (Lekorwe, et, al, 1998: 192).
The government has indeed invoked its powers under this Act and testimony to this was the government versus Bangwaketse debacle of 1994. In that year, the Minister of Local Government suspended kgosi Seepapitso for failing to cooperate with the government during a visit by the Zambian President to the Bangwaketse capital of Kanye. The Minister proceeded to appoint Seepapitso’s son to act as kgosi of Bangwaketse. This matter was contested in the courts by the morafe and their kgosi up to court of appeal which ruled that the suspension was lawful, but that the minister had made an error by not consulting the tribe before appointing the son. Kgosi Seepapitso was reinstated following this judgement. (ibid). Following this saga, the ruling party lost the Kanye parliamentary seat to the opposition in the 1999 general elections. Although Kanye has been an opposition stronghold since the resignation of kgosi Bathoen II to join politics, some residents have argued that Bangwaketse wanted to punish the ruling party for suspending their kgosi. The government later appointed Kgosi Seepapitso to be Botswana’s ambassador the United States, a move seen as aimed at placating the kgosi and his morafe and gain political support. (Personal communication with five Bangwaketse elders aged 50 to 78 years, 21/10/2002). The appointment of a kgosi to a diplomatic position ahead of career diplomats, has also been seen by observers and the opposition as a political move designed to boost the image and revive the political fortunes of the ruling party in Ga-Ngwaketse.
Another move to reduce the powers of dikgosi was the setting up of district councils in 1966. The councils were, among others later accorded the responsibility of taking control of stray cattle (matimela) in accordance with the Matimela Act of 1968. This Act, empowered the councils to collect and dispose of stray cattle, taking away this responsibility from dikgosi. Stray cattle not collected after a stipulated period may be sold and the money used by councils. This Act impacted heavily on dikgosi’s key source of wealth. Presently, they are not involved in matters of taxation, and they no longer receive the 10% tax commission that was earlier on paid by the British administration. The morafe does not plough for dikgosi or provide them with tribute anymore. Because these traditional requirements are no longer in practice this has seriously diminished dikgosi’s wealth, power, status and prestige. This is because "..chiefs have now been reduced to the status of civil servants and have to depend on a salary like all other government employees." Cattle have been a major source of wealth and prestige in traditional Tswana society. Although this is still the case to some extent, other economic activities in modern Botswana such as the ownership of bottle stores, bars, and restaurants have become important sources of wealth in which commoners can invest (Lekorwe, et, al. 1998: 194). The opening up of such opportunities to commoners can be viewed as another reason why the modern society has not reacted strongly to the government’s onslaught on dikgosi’s powers. Some Batswana maintain that in the past some dikgosi were oppressive and unnecessarily restrictive in what their subjects wanted to pursue. They mention a kgosikgolo among the Bangwaketse in the colonial days who did not allow people to own certain items like cars and build houses of brick and corrugated iron, because he was the only one supposed to have those (Personal communication with Montsho Seditse 73, Keto Matlhare 80 and John Baruti 67 at Kanye, 21/10/2002).
A major blow was dealt dikgosi and Tswana customary law when the Tribal Land Act was promulgated in 1968. This Act provided for the establishment of land boards which wrested the powers of custody and allocation of land from dikgosi and vested them with the new land boards, turning dikgosi into mere bystanders in the process of land allocation. As noted earlier, dikgosi were responsible for allocation of gazing, residential and cultivation land. Although they lost some of these powers such as allocation of land to concessionaires during the colonial period, they continued to allocate land in their respective reserves. After independence, the government realised that dikgosi did not have the resources and capacity to allocate land effectively. Since land is a sensitive issue, and the dikgosi had enjoyed the privilege of first priority to the best lands in terms of residence and cultivation, it was clear that the continuation of this practice would cause strife and hence the government intervened. The society did not believe that dikgosi could be fair and open in the process of land allocation as they would favour their protégés (Personal communication with Piet Monnakgosi, 60, Gaborone 20/10/2002). That is one of the reasons why people welcomed this affront of customary law on land allocation
In the judicial sphere, it was the Customary Court Act of 1966, which further whittled down the remaining judicial powers of dikgosi. In the pre-colonial period the kgosi possessed unlimited jurisdiction and tried all types of cases and determined the sentences. The Customary Court Act placed limits on the powers of dikgosi. These limits were first introduced in the colonial period and have been continued by the independent government. The Roman Dutch law introduced in 1891 had removed some of the privileges and powers of the dikgosi. The District Commissioner and the Magistrate had powers to revoke decisions of customary courts during the colonial period, and they continue to wield that power even today. In present day Botswana, one can decide whether to be tried by a magistrate or customary court. This was a new development which undermined the role of dikgosi in today’s legal system. Dikgosi were dissatisfied with this development and one of the outspoken dikgosi Bathoen II of Bangwaketse resigned from bogosi and joined politics. He stood on the opposition ticket for the parliamentary seat of Kanye in the 1969 general elections where he defeated the then vice President Ketumile Masire. This was an indication of the fact that Batswana, especially those in the rural areas still followed their dikgosi and were prepared to offer them a certain measure of support. However, this did not deter the new government which continued its relentless drive to deprive dikgosi of much of their powers and privileges and accorded them new ones that would serve its own interests, as we shall observe shortly.
Demise or Resilience: Customary Law and the Future of Chieftainship in Botswana.
In answering the question of whether the institution of bogosi is in its deathbed in Botswana, we shall begin by discussing the concept of succession, a concept that Batswana, especially those from the Tswana speakers who have a strong tradition of paramount dikgosi have stuck to tenaciously. As noted at the beginning, succession to the office of kgosi among Batswana was hereditary on the male line, with the kgosi’s eldest son ascending to the throne if the office fell vacant. In case of his minority his uncle would act as regent or if a kgosi dies without a male son, then his next brother would take over. We also noted that no women could be kgosi, the exception having been the regents Ntebogang of the Bangwaketse morafe from 1924 to 1928, and Mmamoremi who became regent for her son among the Batawana. These were the only rare cases during the colonial peiod. (Ngcongco, et, al. 1987: 19-22; T. 1998: 22). Mention has also been made of the fact that according to customary law and tradition, a kgosi was born, and not elected hence the setswana saying kgosi ke kgosi ka tsalo (a chief is a chief by virtue of birth).
Throughout the colonial period, the eldest male sons of dikgosi in the Tswana groups have ascended to the throne. In the case of a minority, a regent would take office as exemplified by the case of Kgosi Tshekedi of Bangwato who became regent in 1925 upon the death of Kgosi Khama III. The heir, Seretse Khama was by then only four years old. In other instances, a royal would become kgosi if for some reason, the kgosi’s direct descendant was not available. Hardly had any commoner, or person outside royalty ascended to the throne during the colonial period, and this tradition persists today. The same applies to election of a kgosi. Among the Bakwena, Bakgatla, Barolong, Balete, Bangwato, Batawana, Bahurutshe and Batlokwa, a paramount kgosi has never been elected and even today they insist that a kgosi should be born and not elected. The only ‘revolutionary’ development concerning the traditionalist concept of customary law was the installation of a woman as paramount kgosi of the Balete early this year. After the death of the Balete kgosi, it seems she was the one with more solid claim to the throne among the royals. After some minor misunderstandings as to who should be kgosi, the Balete finally accepted Mosadi Soboko to be their kgosikgolo.
This paper maintains that the institution of bogosi shall continue to exist, and that if its ability to adapt to the changing circumstances is anything to go by, then it shall live for sometime to come. The roles, functions and powers of dikgosi have continued to diminish in relation to those of politicians and top civil servants. Dikgosi have already taken up new roles that do not accord with the traditionalist and ideal form of bogosi, as was the case in the pre-colonial period, and the diluted bogosi of the colonial period.
The changing order in Africa, and the world generally, means that the institution of bogosi should adapt to the times if it is to be of any relevance. In Botswana, bogosi has demonstrated its resilience by adapting and accepting its new role and status in society. Batswana have also accepted new developments and appear content with the new roles of the dikgosi, although these roles are subservient to the new order. The paramount dikgosi of some Batswana groups have personally accepted the fact that tradition has changed, and that dikgosi ought to adapt if they are to remain relevant. Presenting a paper on "Chieftainship in Botswana in the twenty first century," Kgosi Seepapitso IV of Bangwaketse emphasised this position in his statement that, "our traditional pattern of life has changed and it is a positive thing to accept change." (Seepapitso 1994:343).
The role of dikgosi and bogosi in Botswana in the colonial and post colonial period has changed in response to the demands and dictates of existing realities. As already noted, dikgosi were turned into civil servants by the colonial administration. They realised their position and reduced powers vis-a-vis the powerful government. Dikgosi became intermediaries between the colonial administration and the society, and although they were denied the tribute and other forms of levy, which were their sources of wealth from their people, they accepted the 10% hut tax commission that they were paid. As noted by some scholars, dikgosi have become mere salaried officers just like any other civil servant and that this consigns them to control by the government. (Sekgoma 14 Lekorwe et, al, 1998: 194). Having lost the power to levy tribute and other dues from their constituents, dikgosi had to adapt to the new order and the acceptance of salaries and other benefits that accrue to the dikgosi should be viewed as payment for their new roles in society. In order to grasp the economic power held earlier on by dikgosi and its relation to their subjects, it is worth noting what the paramount kgosi of Bakgatla, Linchwe II said. He stated that:
In appreciation of his role in the society, the tribe paid tribute in the form of cattle, ivory, skins, corn etc. Tribute was also paid in the form of labour to plough the chief’s fields. The social security systems of the tribe hinged on the chieftaincy and the wealth that surrounded the institution as a result of tribute, on claimed cattle and cattle captured at war (Linchwe 1994: 397).
In times of need, the kgosi would redistribute such cattle and grain among his subjects. Today, dikgosi do not have access to resources from their subject, and the obligations mentioned above no longer apply. This scenario had made them to be dependent on government, and hence actions by government reducing the powers of dikgosi are seen as dealings between two parties.
As already stated in the previous sections, the colonial and post colonial state have undermined traditional Setswana dikgotla (courts) and the manner in which they used to dispense justice. The introduction and superimposition of the District Commissioner and magistrate courts over customary courts clearly shows diminution of customary law. However, the majority of Batswana live in the rural areas, and even those who stay in towns cannot afford the exorbitant fees and services of attorneys. Customary courts have been introduced in towns, and despite the transformations that have taken place, it is quite evident that many Batswana still seek, and shall continue to seek recourse in the customary courts of the country. The vitality of customary law in Botswana’s society has been highlighted by Kgosi Linchwe when he stated that, "There is growing recognition that customary law is here to stay. However, it is being called upon to be more innovative than has hitherto been the case." (Linchwe 1994: 400). Customary law has demonstrated its innovativeness because there is ‘living customary law’ which does not depend on precedent as many of the judgements on cases, rules and norms in the long past have been forgotten. It is based on the prevailing circumstances, and this is the customary law used in some of the customary courts in towns. (Molokomme, 1994: 350). This demonstrates that customary law is flexible and hence its resilience.
Bogosi plays a vital role in Batswana’s judicial system, and the government has realised the important role of dikgosi in it. The importance government attaches to customary law and the resilient nature of bogosi has been well stated by Tlou in his assertion that:
Notwithstanding its loss of power since independence, bogosi has proved to be resilient, especially in applying customary laws and custom in the settlement of disputes. The government has recognised the importance of customary law by establishing the customary court of appeal. It is interesting that so far the government has appointed royals to be presidents of the court. (Tlou and Campbell: 337).
This indicates that customary law still commands respect from important quarters in Botswana, and that the dikgosi are still regarded as custodians of customary law. Although appeals from the customary court proceed to the customary court of appeal which was established in 1986, and, matters can be appealed to the High Court and finally the Court of Appeal, customary law and dikgosi would have played their role. With the increase in criminal and civil cases, the role of the customary court in the future cannot be over-emphasised. Although some of those who preside over some customary courts, especially urban customary courts and customary courts of appeal should not necessarily be dikgosi they are expected to apply customary law in their courts.
In this changing world, the institution of bogosi and customary law should adapt and realign with the existing realities and be relevant to today’s situation. Bogosi has assumed new roles during the colonial period when it was used by the colonial government to mobilise people and act as an intermediary between the government and society. The adaptability or the ability to adapt to changing circumstances has been revealed by what transpired after independence to the present day. The state in Botswana has whittled away what the chiefs retained from the colonial state. On the other hand, it has utilised the institution in a different way to serve its interests. Although the dikgosi have not accepted the diminution of power quietly, they have accepted their new roles, realising that this was a ‘popularly’ elected national government and one they could not contest with. The Government of Botswana has managed to manipulate dikgosi and use them effectively in their new role. Kgosi Linchwe has observed this development by noting that "Chiefs are, therefore amongst the best placed individuals for social mobilisation.’ (Linchwe 1994: 395)
The institution of bogosi has been used by the post colonial government as its agent in performing the functions of the maintenance of law and order in the villages. In the new dispensation, "it has also been mobilising the rural population to ensure both the economic and political reproduction of a plural democratic state." (Sekgoma: 12). Dikgosi have been used in social activities like village cleanliness campaigns to encourage people to participate in anti litter campaigns and environmental programmes, preventing tree cutting and veld burning, and also mobilising people in building dams for rural development (Sanders 1983: 373). It seems Botswana society has come to accept and expect this from dikgosi, and this would accord well with Molokomme’s concept of the living customary law whereby new rules and practices which are not necessarily customary in the traditionalist sense, come to be accepted as customary.
The Botswana state has utilised dikgosi to enhance its position politically by emphasising the fact that dikgosi were custodians of tradition. The government has employed the traditionalist ideology to gain political support from the rural people, using bogosi as an embodiment of Tswana tradition and culture. Bogosi has been used to gain cooperation of the majority of the rural inhabitants in supporting the democratic state and its capitalist economy. (Sekgoma; 13). Whilst one would concur with this well articulated position, one would also hasten to add that this acquiescence or the fact that dikgosi have taken up these new roles smoothly, and are performing well is the very source of their survival and strength in a changed situation in which they cannot contest with the modern all powerful government. Sekgoma captures the situation concerning the admission of weakness by dikgosi and the reasons for that by noting that
They (dikgosi) have also shied away from opposing the government of the day. In recognition of this support, the government has assured them life positions in office, satisfactory salaries, and services of secretaries and local police officers in their courts. (Sekgoma: 15)
Dikgosi no longer get any material support form their subjects, and society is content that the responsibility has now fallen over to the government and this would accord well with the concept of the living customary law.
Nowadays dikgosi maintain law and order and perform other ceremonial duties such as welcoming visitors at public meetings in their kgotla. Although Sekgoma argues rightly that critical power lies with the state, and that in such a situation the future of bogosi in Botswana was hanging in the balance and its survival unpredictable (ibid), it seem dikgosi have accepted their position and having weighed other alternatives they realised that their survival depends on adaptation to the changing order.
Although the survival of bogosi seems assured, it is apparent that there are certain requirements that the dikgosi and the institution of bogosi should do to ensure that survival. Kgosi Linchwe provided one of these requirements in his assertion that:
Given new emerging realities and demands of a changing society, however, it is clear that royal families cannot offer adequate leadership and guidance on their own. It is necessary for chieftainship to welcome new skills and ideas, and incorporate the contributions of individuals and groups with diverse professional, occupational and other backgrounds from outside the bounds of heredity and royalty (Linchwe 1994: 395)
Kgosi Linchwe continues to maintain and reiterate the requirements for bogosi to survive by stating that:
The capacity of chiefs to open up to non royal advice will determine in a large measure their responsiveness to modern trends. The survival of the institution of chieftainship will depend on the dynamism and responsiveness it displays in the face of changing realities in society. (Linchwe 1994: 396)
Dikgosi in the modern era need to be literate if they are to handle the complexities and intricacies of modern administration. This requirement has been well summarised by Kgosi Linchwe in his assertion that: "Chiefs can remain relevant by constantly relating to the changing needs and experiences of their people, and by avoiding the stigma of being labelled a relic of a conservative past with little relevance to the present’ (ibid).
Conclusion:
Customary law in Africa has been practised from time immemorial. The fact that it was not written but largely passed on orally from generation to generation over centuries means that much of its ‘pure’ form has been lost. The law has been affected by changes brought about by contacts between Africans and outsiders, especially Europeans. In Botswana, colonialism facilitated changes as western education and influence gained ground. Whilst the colonial government laboured to undermine customary setswana customs and norms by reducing the powers of dikgosi, they, on the other hand tried to use the protection provided by the government and be dictatorial. Batswana resented the actions of some of their dikgosi and did not react strongly to colonial infringement on customary practises. The government that took power at independence has transformed bogosi by sweeping away the remaining powers of dikgosi, and since Batswana appear to acknowledge and accept that dikgosi cannot perform certain duties which require expertise and immense resources, the latter have no alternative but to acquiesce. Dikgosi have since accepted their new roles which have almost been accepted as customary. If dikgosi accede to the ruling party’s whims and accept to be used for political purposes, then the institution shall survive in the foreseeable future. It seems that even though an opposition party were to take political power, it will be suicidal to take the drastic measure of abolishing bogosi because Batswana still cherish the institution, however weak.
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