TRADITIONAL AUTHORITIES IN
(PRESENTATION IN ENTEBBE, LAWYERS WORKSHOP
27-29 JUNE 2004)
Ladies and Gentlemen, distinguished guests, let me first
thank you for giving me the opportunity to present you the
case of Botswana. As I was not prepared to do so before I
came here you will have to forgive me that I did not prepare
a very elaborate presentation nor a paper that could be handed
Dr. Francis Deng said yesterday that customary law is a resource
that can be molded. In this sense one can also say that experiences
made elsewhere regarding tradition and modernity can be taken
as resources to be molded or can be taken as sources of inspiration
for nation building.
From this point of view several African countries offer interesting
experiences in terms of combination of traditional structures
and democratic institutions. As you may know Uganda, Ghana,
South Africa and Botswana among others have constitutional
provisions for recognising their traditional authorities.
I would like to have a closer look at Botswana. Not because
it is a model to copy, but because this country has been considered
as the shining example of good governance and democracy on
the African continent. One reason for this lies in the fact
that Botswana's constitutional provisions recognising the
internal diversity and ethnic differences led to a particular
way of handling conflicts, problems or contradictions regarding
the relation of tradition and modernity.
As far as the facts are concerned it is important to know
that Botswana's constitution established in 1969 a house of
chiefs as a second chamber to the parliament with advisory
powers on issues regarding customary law and traditions. Section
87 to 89 mention explicitly the 8 Setswana speaking tribes
as ex officio members of the House of Chiefs and provides
four additional seats for the remaining 24 tribes on a rotational
Section 1 of the same constitution states no one shall be
discriminated on the basis of race, sex, tribal identity etc.
These two provisions contributed throughout Botswana's history
greatly to the national building and the unity of the country
on the one hand and the prosperity and economic development
on the other hand. What were the reasons for that?
The official recognition of the Setswana speaking tribes united
these communities under the nation state project of the government
because the community leaders were given the opportunity to
participate in the process of building a new nation on a institutional
level through their influence they were able to exert in the
House of Chiefs.
One has actually to admit that this was a clever move by
the then President Seretse Khama a chief himself who knew
very well that at independence most chiefs were very opposed
to the transition to democracy as the feared to lose some
of their power.
At the same time, those tribes who were not officially recognised
like the Kalanga or the Wayeyi were offered compensation in
form of high profile jobs in the Government and the administration
as well as business opportunities. This actually delayed the
claims of these tribes for recognition for quite a while until
the mid nineties.
An additional advantage was that the revenues form the diamond
industry were consequently invested in the education sector,
the health sector and in infrastructure such as roads, electricity
etc. and equally distributed among all the tribes so that
non of them got the feeling of being left out.
If the combination of official recognition for some tribes,
political and economic compensation for the so-called minority
tribes and an equal redistribution of wealth contributed for
a long time to the stability of the country it also set the
basis for the minority tribes to claim further recognition.
Based on section one of the constitution some of the minority
tribes took the Botswana government to court asking for a
revision of section 87 to 89 invoking the discriminatory character
of these articles and being therefore in contradiction with
The government lost the case, installed a commission and
undertook a revision process that started off with a large
Early this year the Constitution was finally amended and the
House of Chiefs enlarged to 32 members including now all the
ethnic communities of Botswana.
These facts happened in a particular context and a specific
history and can not be replicated elsewhere. Nevertheless
out of the Botswana experience several lessons can be learned:
1. Political recognition of tribal communities
is actually an asset and an important element of successful
nation building rather than a threat as it is often thought.
Exemplary in this regard is also the fact that the more you
integrate traditional structures into a democratic system
the more you expose them to values such as human rights gender
equality, rule of law etc. Evidence for this can be found
in Botswana where a woman became Chief of her tribe and is
now the chairwomen of the House of Chiefs.
2. The recognition of cultural diversity
in the Constitution is a first important step but is not enough
as it must be followed by concrete actions.
In this sense Botswana has for instance empowered the chiefs
in the judiciary to the extent that today 80% of the court
cases are handled through customary law and the chiefs. Interestingly
enough is also the fact that one actually realises the modernity
of traditional structures as this type of judiciary is efficient,
cheap and un-bureaucratic, which is today expected form a
3. One is better off in being inclusive
from the beginning. As the Botswana example shows and despite
all measures of compensation for minority tribes, claims for
equal recognition of tribal identities will sooner or later
arise anyway. The Government of Botswana could have been speared
a lot of trouble and money if he had put all ethnic communities
on equal footage from the beginning.
4. Last but not least: Good governance is
not about having regular elections, the recognition of ethnic
communities or achieving gender balance although this is all
part of it. Good governance is much more about how state and
non-state actors are able to handle their conflicts.
The tribes who sought for recognition in Botswana did not
have to do so with violent means or civil disobedience but
by invoking legal arguments and using the courts for arbitration.
They were able to do so only because they knew that the tribe
do matter for the Government of Botswana and that there is
an implicit respect and recognition for the dignity of tribal
identities as well as a respect for the rule of law and the
independence of the judiciary.