Presiding officers, most barely literate, will determine the guilt or innocence of thousands of equally illiterate Batswana, sentence women and elderly men to flogging or up to five years in jail, should the proposed amendments to the Customary Act go through parliament.
Although legal experts have been questioning the competence of customary courts in administering justice, the Ministry of Local Government has proposed that the customary courts should be given more powers.
The report of a task force appointed by the ministry to amend the Customary Court Act is expected to be tabled in the next parliamentary sitting sometime in November this year.
Under the proposed Act, Paramount chiefs would be empowered to mete out jail sentences of up to five years from the current maximum of three years.
The Act also proposes that floggings should be increased from six to eight strokes administered by paramount chiefs, and that women and man of less than 50 years should also be flogged. This raises the age ceiling from 40 to 50 years.
Speaking to Sunday Standard, the deputy Director of Tribal Administration, Tumelo Seboko, explained that ‘the ministry appointed a task force that has been traveling throughout the country consulting with both tribal leaders and public about the proposed amendment of the tribal Act”.
He said the task force has completed their tour and they have already compiled their report that is to be handed to the minister soon.
He said the task force proposed that the customary courts should be given more powers. Deputy paramount chief of Balete, kgosi Tsimane Mokgosi, said, “I want the customary courts to be strengthened so that they can also serve the public competently.”
He said, “As Dikgosi, we have realized that those who are above the age of 40 continue to commit criminal acts therefore the proposed Acts want the ceiling on the age of flogging to be raised to 50 years.” Deputy Chief of Batlokwa, Michael Gaborone, said, “I welcome the proposed Act and hope that it is implemented in its entirety.”
Chairman of Ntlo Ya Dikgosi, Puso Gaborone, declined to comment when contacted.
Meanwhile, a few years ago, human rights lawyer, Duma Boko, presented a research paper suggesting that customary courts are not competent to serve justice.
“The government’s position captures an interesting reality. Most, if not all, the presiding officers in customary courts have not had high school education.
The presiding officers are expected to apply provisions of the Penal Code and other penal statutes. None of these statutes are written in vernacular language, Setswana, which is an official language in addition to English,” stated the research paper.
Not surprising, Customary Courts are turning in higher conviction rates than the magistrate courts and the country’s high court.
In the Kweneng District, out of 2879 cases decided by all customary courts in the area, over a period of 12 months in 1998, there was not even a single acquittal. And this is the trend throughout the country.
Customary courts in the Ngwaketse District decided 1401 cases over 12 months during the same period and recorded a 100 percent conviction rate. Customary Courts in the North East District decided 476 cases for the whole year, and no one was acquitted.
The Selibe Phikwe case record also shows 906 under the “decided cases” column and 0 under the column that says “acquitted”.
Customary courts in the Borolong area decided 321 cases, recording zero acquittals and 321 convictions. Such figures, however, hardly ever make bar and cocktail party conversation pieces. Most Batswana have more harrowing stories to tell about the injustice of customary courts.