TRADITIONAL AUTHORITIES IN BOTSWANA
(PRESENTATION IN ENTEBBE, LAWYERS WORKSHOP 27-29 JUNE 2004)
(Jeremias Blaser)

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 out.

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 basis.

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 section one.

The government lost the case, installed a commission and undertook a revision process that started off with a large popular consultation.
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 public administration.

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.