On an almost weekly basis, newspapers report cases of a cuckolded husband somewhere in Botswana frog-marching his cheating spouse and her lover to a kgotla. In virtually all instances, the latter is found guilty even in circumstances that don’t meet a customary law standard on adultery that was detailed in a 2008 Customary Court of Appeal (CCA) case.
The litigants in the case were Baradi Segole whom Bakang Mosala accused of having had an affair with his wife, Malebogo. At some point the two men worked together and formed a bond so strong that Bakang introduced Segole to his family. Segole actually told the court that Bakang stuck with him through thick and thin and when he lost his younger brother, Bakang helped in any way he could.
In 2004, Bakang left for the United States to further his studies and soon thereafter Segole is supposed to have started an adulterous relationship with Malebogo that only ended in 2006 when the husband returned. Bakang recalled to the court an incident in December, 2006 when his wife claimed that she was going to Molepolole when she was actually rendezvousing with Segole. Malebogo allegedly hid her car at a cousin’s place which was not very far from Segole’s. Bakang would later get his hands on a call list that showed how often his wife communicated with Segole.
When Bakang confronted his wife with the intelligence he had gathered, she confessed but her own account though was that the affair only began in 2006 after she had spurned Segole’s amorous advances for some two years. His persistence only paid off when Bakang was back home and Malebogo said that she started the affair because she discovered that her husband was cheating on her. As part of making up, the couple forgave each other and agreed to mend their ways and repair damage done to their marriage. Part of the latter included Malebogo writing down her confession in black and white. She had no way of knowing that a copy of this confession would be presented as evidence of her infidelity in court.
In his defence, Segole denied the charge and alleged that Bakang had vowed to “fix” him. Segole told the court that when Malebogo, whom he treated as a sister, learned that they not only came from the same village (Molepolole) but from the same ward as well. Malebogo became curious and wanted them to research whether there was any familial link between them.
The case was first heard at the Urban Customary Court in Gaborone. A call list showing communication between the supposed love birds was presented and accepted as evidence. Segole was fined P10 000 and ordered to pay within three months. Instead, he decided to appeal the case and that is how Sebele, who at the time was CCA President (South) came into the picture.
Overturning the lower court’s ruling, Sebele argued that a call list cannot be used as evidence and further that Bakang had not followed the Setswana way of establishing adultery.
In very extensive detail, the former Bakwena regent laid out an elaborate process undertaken by Batswana over centuries to prove cases of adultery. The judgement refers to the culprit as a ‘thief.’ When a man finds his wife in flagrante delicto, he is not supposed to fight the thief or make any kind of scene. The victim (the husband) does that in order to protect his family as his wife’s dignity and honour.
“The thief is also not supposed to make a scene,” Sebele’s judgement reveals.
What is of paramount importance at this stage is for the married couple to reconcile and for the thief to be punished for his kind of stealing. Sebele said that both tasks are supposed to be undertaken with the utmost secrecy.
The judgement reads: “The husband says to the thief: ‘Get out of the bed. I have caught you.’ The husband confiscates the thief’s clothes and in return lends the thief his own item of clothing of his ÔÇô say a coat ÔÇô to wear before letting him go.”
In the event that the thief is unknown to the husband, he would be questioned very closely to reveal vital personal information. At the crack of dawn the husband goes to his father or paternal uncle’s place to report the theft at his house. The father or uncle would in turn inform other relevant family members like maternal uncles. When satisfied that the husband followed proper procedure to establish adultery by both culprits and has located the thief’s place of abode, the thief’s family would be alerted that a delegation from the husband’s own would be paying a visit shortly.
“And indeed that delegation would be despatched, taking with it the clothes confiscated by the husband. The clothes would be presented to the thief’s family as evidence of adultery. When he is called over, the thief would also bring the item of clothing the husband had lent him. That is standard evidentiary requirement for an adultery case,” the judgement says.
Sebele further stated that in its nature, sexual activity is so secretive that no third party can realistically claim credible knowledge of its occurrence. “A man and woman lock themselves up in a room, turn the lights off and cover themselves up [with bedding],” the former member of Ntlo ya Dikgosi said. “No third party can claim to have witnessed adultery. If they do then they just want to wreck other people’s homes. They would be lying through their teeth if they make that claim. That is why in this particular case, I have disregarded the so-called evidence.”
In addition to what Bakang claimed, part of the “so-called evidence” includes a call list which Sebele ruled was not admissible as evidence.
“The complainant did not meet the evidentiary standard I have outlined. What he is doing is merely disgracing himself and his family,” Sebele said.
The importance of this case was that from then on, verdicts of similar cases had to be tailored around its central reasoning. Sebele asserted that the lower court (Urban) misdirected itself in its verdict and appealed to such courts to strictly adhere to evidentiary standards of customary law. If they failed to do that, he added, then they would be culpable in the break-up of marriages.
By this standard, customary courts would be guilty of said culpability because even in 2015, “thieves” are still being fined for adultery that was committed far away from the marital bedroom. While in 1872, the choice of where to be adulterous was severely limited, that is certainly not the case in the 21st century. Sebele, who has since left the CCA, acknowledges that nowadays adultery can be committed in hospitality establishments like hotels, lodges and guesthouses and that customary law itself has to be dynamic. However, he advances the argument that technically, the centuries-old evidentiary standard of adultery still stands because it has not been repealed at the kgotla.
Once a year, at the onset of the rainy season, Batswana congregate at the kgotla where the kgosi declares the ploughing season officially opened. In Setswana this practice is known as go bolotsa letsema. Sebele says that historically this event has also been an opportunity to discuss whatever issues were deemed to be pertinent.
“That is why the kgotla is very important in our culture. Following a resolution taken at the letsema, the kgosi would call a general meeting to communicate such resolution,” says Sebele, then drawing a parallel with the modern parliamentary system that Botswana uses. “An Act of Parliament that needs to be amended has to go through a particular parliamentary process. The same goes for customary law: if any changes have to be made to a particular law, there is a certain traditional process that has to be followed. That has not happened with the standard of proof for adultery cases.”
With regard to why his judgement is itself being disregarded, Sebele’s explanation is that some of the presiding officers are new in their positions and that the government has generally taken a neglectful attitude towards customary law which happens to be just as sophisticated as the common law it is obsessed with.
“The government is not developing customary law in the same way that it is developing common law. Decided cases in the customary court system don’t establish case law as happens in the western court system. The government has completely neglected customary law,” he says.
