Botswana’s customary courts were known in the past for their procedural openness to debate and public opinion-making. The chief or headman presided over the court but allowed members of the court, usually in ascending order of seniority, to express their views on the case, before finally reaching a judgement. Most scholars of Tswana society, from Isaac Schapera onwards, agree that the chief’s final judgement was responsive to public opinion as expressed during a hearing. It was this public debate that made Tswana customary law ‘living law’, reflecting current understandings and changing normative assumptions. But early on in the history of the Protectorate, this customary form of consultation was challenged by Sir Charles Rey, the first British High Commissioner to Bechuanaland, who issued a proclamation authorising nominated court members only (not necessarily chiefs) to act as judges. The challenge was at the time de facto rejected following a failed appeal by two prominent Tswana chiefs, and so the matter rested for 90 years until an amendment in Botswana’s Customary Law Act, in 2013, almost as an afterthought, granted chiefs or presiding court headmen sole decision-making authority, without the need for consultation. This new dispensation was evident in the chiefly conduct of a customary court case convened in 2017 to consider the inheritance of the properties of a long-deceased man in Moremi village.
It seems, however, that not all customary courts in the district were following the new edict and there was also some confusion among court participants regarding the chief’s requirement to seek advice from his counsellors and village elders. This indicated that consultative citizens’ courts were an entrenched feature of customary law, not easily overturned by a statutory ruling from above. Nor was it clear why the ruling had been made as it had, almost imperceptibly, in a footnote. The paper will consider the implications of this radical legal reform from above for an understanding of legal pluralism and customary law as living law, both in Botswana and comparatively.