The Kgotla (Customary) Court in Botswana

The following blog post is by 3L Brian Kron:

On Thursday, January 8, 2015, Associate Dean Behan, Brad, Tshepiso ( a University of Botswana law grad/PhD program candidate/Lecturer/guide/friend) and I had the privilege of visiting a local Gaborone  tribe’s customary court system. This was of particular fascination to me because this court or tribunal exists in its own rite. Botswana has a customary court system separate from traditional legal matters. This makes the judicial system a hybrid system in the nation of Botswana. Essentially this is the most foreign aspect of their legal system we encountered. Our legal friends and lecturers always talked about it, but remained elusive and unclear how it works in my mind. Individuals have the right to appeal to a high court, customary court of appeals and essentially the court of appeals if necessary. But they deal with matters entirely on their own.

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One common thread in Botswana is that it is a heavily Christianized nation and for the most part has adopted Western society’s norms, customs, legal systems etc. But there also seems to be the existence of people who live true to their roots. This was the portion of the population I was interested in.

Tshepiso himself had not ever been to a customary court before. The tribal community’s customary court we visited seemed like a very divided society still figuring out their identity, for those who have not accepted the “Western Botswana way” entirely. Our first opportunity to witness customary court failed the day prior for requesting with such short notice. The officials that work in the court were apprehensive about having an impromptu meeting. They delayed the opportunity till the following day where we would have the opportunity to experience what we could.

Tshepiso in the courtyard of the customary court complex. Serious matters are adjudicated in the courtyard under trees such as this one.
Tshepiso in the courtyard of the customary court complex. Serious matters are adjudicated in the courtyard under trees such as this one.

We were driven to a location that looked official right near the urban area of Gaborone. A sign bore the name of the tribe. A particular name was used for this system of justice. How it is spoken and spelled I still have a hard time with. I refrained from taking photos of everything I saw, so not to upset some one or people. Our trip to the African continent was unlike any other foreign trip abroad I have taken. Normally I am familiar with the Germanic languages, and Spanish languages, respective to the region of where they’re used and where I visit. In Africa I was completely out of my element and can only thank the English for colonizing the minds of the masses with English language in the two nations we visited to make our experience more palpable and understandable.

But I struggled making diligent efforts to bridge any cultural gaps and tried to pronounce things properly when I heard them. I like any other astute traveler needed my wits about myself and took care not to be quick with my tongue and listened a lot more than I normally would; walking boldly but aware of my surroundings in a foreign land. We were truly in a foreign place but with people that which were kinder than ever. At our destination there was a courtyard with a tree in the center that was surrounded by modern buildings, a fire pit, a hut, a large longhouse type hut and a statue of a chief. It had a very open feeling and had some what of a connection with the natural surroundings, in my opinion. The gentleman we met was kind but bold in the tongue. He was our guide and cultural informer, if I may. He explained the customary court system in general terms but with more detail than any other Botswana attorney, lawyer or professor we had previously spoken with. I think that is due to the fact that no legal counsel is permitted to represent some one in customary court. His understanding differed from that of the Ivory tower so to speak. He immediately dismissed any outside information we were taught and than proceeded to give his short impromptu lecture. He may have been embarrassed and seemed to have rather preferred to have prepared something more for us formally. Which was not necessary. But was a kind thought.

My interpretation of Customary court could be concluded as this: any dispute is first sent to the artificial hut (representing the home) to make sure aggrieved parties have spent time to reconcile, than anyone is welcome to come to the proceeding which takes place in open air. Anyone and everyone is consulted or heard. It is a system that relies heavily on older generations. Each male and female goes to a respective gender specific training or schooling.  There the people are equipped with the means necessary to take part in the tribe. They learn how to behave, the customs and roles specific to their gender in the tribe.  After adjudications, the tribe’s Chief makes a final decision after council from his people and aggrieved parties. There is set codes of conduct that result in corporal punishment or excommunication. But the code is not written. Our guide spoke of young people not knowing how to act and living troubled lives between their tribal roots and Western society. The youth face troubles and know how the tribe will respond in customary court. They seem to live happier lives with less western influence in our guide’s opinion but also can stray into Western legal principles where things are handled differently.  One human rights issue in the region is a crime of passion. This crime occurs when a couple kills a significant other and than commits suicide. Apparently it happens at an alarming rate. I wondered if these two starkly different cultural identities are to blame.  Our guide seemed to think so.

The guide’s brother entered the room during our discussion. It is customary to stand when some one enters. We may have been a little late to do so. but I tried to follow our guide’s lead. It is common for individuals to have Christian and tribal names. I just wound up getting confused but tried to refer to people by the native name.  His brother assured us that his older brother has our best interest at hand and is an effective representative of the customary court with all the answers. It seemed as if the outside international community has an eye on tribal groups and human rights issues. The tribes (like the German federal court judge I met) assured me spontaneously that no human rights violations are committed. I understand the German judge assuring this but the tribesman we spoke with may have done so for different motives upon me asking about arranged marriages. I didn’t want to poke fun but genuinely interested in the process but that was his response. The guide also described a group of Dutch anthropologists who visited them studying their customary court methods and brought it back to the Netherlands to resolve industrial employee disputes. He mentioned that there is literature on the subject we maybe interested in. I am very fascinated by this and may try to find it.

We were told how lighting a fire at the beginning of the day symbolizes life at the customary court, how many cultural tradition days are held at the location and not only judicial matters. One would find traditional garb and customs practiced all in one place on a day like that.

It seemed as if there is a large portion of people who live pastoral traditional lives on the farm, the way their families and ancestors have for sometime, but also that many tribal members were venturing into modern society and finding themselves confused or getting into trouble. These were only my inferences from our discussion at the customary court.

Finally I reveled in the fact that there are societies that have oral traditions and life is carried on by and dealt with primarily by the oral word. In customary court proceedings are recorded but there is a strong influence of oral tradition. The primary function of the record is for appeals. My one regret was not seeing a proceeding and not spending more time studying this aspect of Botswana law. Some of the lectures we had during this day were far less different from our own American legal standards and European neighbors. From personal injury to tax law differences are subtle but primarily a thread of the same cloth. There seemed to be only nuanced differences. The customary court experience was unique and one I will not forget. However the study of the rest of Botswana law is essential and imperative to the course and understanding the legal system in its totality. The customary court seemed to be marginalized or dismissed by the rest of the legal community, where differences between the two systems of law exist. But customary law is recognized by the nation. I can only compare it to the Native American experience within the states. Which is all too removed from my life for historical reasons. But in Botswana there seemed to exist a large population of indigenous people that were unseen in the urban city of Gaborone but a significant population.

~Brian Kron

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