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In becoming a republic on September 30, 1966, Botswana accorded equal rights to all its citizens. In exercising such rights on September 2, 2017, Kgosi Kebinatshwene Mosielele of the Bahurutshe was ceremonially garbed in a leopard skin at a ceremony in Manyana. Only there was one thing wrong with this ceremony.
Going back centuries, there can never be more than leopard-skin-wearing kgosi in the same tribal territory. As a Setswana saying goes, “there can’t be two bulls in the same kraal.” The skin represents supreme power and authority and it would be impractical for two leaders to have the same power and authority. In one too many instances, a Tswana kgosi was a warrior who commanded his troops during battles. There can’t be two supreme commanders because they will give different orders and confuse the troops.
Manyana is in a tribal territory that is formally recognized as belonging to Bakgwaketse and the Bakgwaketse supreme traditional leader, Malope Gaseitsiwe, was so garbed in 2010, assuming Kgosi Malope II as his regnal name. This is the basis upon which Malope and his subjects objected to Mosielele’s garbing. Mosielele has sought to justify his action by stating that his late father, Kgosi Mareko Mosielele, was also ceremonially garbed in a leopard skin in 1952. He told Mmegi that there is photographic evidence to that effect and that Malope’s grandfather, Kgosi Bathoen II, had no problem with that. The one point of contention is that around this time, Manyana was in Kweneng and not Ngwaketse territory which means that Kgosi Mareko Mosielele would have been under Kgosi Kgari Sechele. Whatever happened, it is acultural for a tribal territory to have two leopard-skin-wearing rulers and there would have been special reasons for both Kgosi Mareko Mosielele and Kgosi Kgari Sechele being so adorned.
From 1906 to date, Botswana (called Bechuanaland Protectorate between 1885 and 1966) has been using Roman-Dutch law alongside customary law. One vital point that former Bakwena regent, Kgosikwena Sebele, has made in the past is that while the former is continuously being refined, insufficient focus has gone to the latter. This imbalance was bound to be problematic. Through sections 77, 78 and 79 of the original constitution, Botswana created a caste system that recognized only eight tribes. However, under President Festus Mogae – and following a High Court judgement, the constitution was amended to give all tribes equal status. The amendment was followed by an expansion of Ntlo ya Dikgosi (previously known as House of Chiefs) and Mogae had intended to accord tribal leaders equal status because that is what republicanism dictates. However, he was unable to carry out such plans because of fierce opposition from the eight tribes and in the supposedly new order, there is still a caste system that places dikgosi from the eight tribes above all others. While it tinkered with the constitution, the government didn’t do anything to align customary law with it.
Constitutionally, Mosielele and Malope are equal but in terms of customary law, only one can be garbed with a leopard skin. Sebele says that customarily, this law has never been static but would be amended from time to time to respond to changed circumstances. He illustrates this assertion with a judgement that he handed down a few years ago when he was still the President of the Customary Court of Appeal (South). In this particular case, a man had confessed his adultery in a written statement and when the matter came before the Urban Customary Court in Gaborone, was found guilty. And why not, this seemed an open-and-shut case. However, when the case was kicked up to the Customary Court of Appeal, Sebele, as the presiding officer, overturned the lower court’s decision on the reasoning that a written confession doesn’t meet the legal standard for evidence of concubinage (bonyatsi) in Setswana culture. One element of this standard is that a case for adultery can only be made when the husband catches the other man in the matrimonial bedroom. The analysis of Professor Charles Fombad, a professor of law and head of the Comparative African Constitutional Law Unit at the University of Pretoria is that Setswana customary law is “by all standards, a highly sophisticated judicial system.”
The argument against the concubinage law would be that nowadays people can to go a lodge to commit the same adultery they commit in the matrimonial bedroom. Sebele’s counterargument is that this standard was never reversed and therefore remains valid as customary law. The amendment of customary law, he explains, would happen at a meeting before the start of the ploughing season. With no such amendment having happened, written confessions on adultery don’t pass muster. In the Manyana case, a meeting of such nature would have addressed the leopard-garbing issue in a republic where all tribes are equal.
The failure to align customary law not just with the times but the constitutional order is problematic in another respect. At a time that this law was being developed, dikgosi would send viceroys to rule in their stead in different and far-flung parts of their territory. The Central District (the Ngwato tribal territory) is a good example. Viceroys would put down roots in territories they were posted to and over time, viceroyship became hereditary. Beginning at the turn of the century, there has been fierce opposition to the continuance of the viceroy system. In the central district there has been resistance to the imposition of viceroys from Serowe by communities who feel that headmen should be drawn from the local population. While that makes perfect sense, the viceroy system – which is rooted in customary law - has never been officially phased out.
In a republic where tribes are equal, what should be done with very important protocols of customary law that don’t recognize such equality? While every session of parliament updates pieces of Roman-Dutch law, the mechanism through which customary law was continually refurbished has essentially been deactivated. As historically marginalized tribes become assertive, some are going want to upset the status quo by garbing their traditional leaders.