Of the Tribal Territories Act, indirect rule, chiefs and subjects
Correspondent | Friday December 18, 2020 08:35
It has since been amended 22 times. The relevant amendment for this discussion occurred in 2005, pursuant to Act No.9 of 2005. This was to make sections 77, 78 and 79 ‘tribally neutral’.
This Note investigates whether tribal neutrality, or more aptly, tribal equivalence, can be achieved by amending other legislation while leaving the Tribal Territories Act (Cap. 32:03) intact. This is particularly urgent in view of the promised and impending constitutional review.
Section 77 of the Constitution provides for the membership of the House of Chiefs, which was christened as the Ntlo ya Dikgosi in 2005. Crucially, section 78 (1) immediately creates an exception to section 77 (1) (a), and it reads: “Except for the areas of Ghanzi, Chobe, Kgalagadi and North East, the Members for the areas referred to in section 77(1) (a) shall be designated to the Ntlo ya Dikgosi according to the established norms and practices of those areas.” Section 77 (1) (a) provides that 12 members of the Ntlo ya Dikgosi will come from the areas listed under it. Once the other four members listed in section 78 (1) are removed, those that remain are the eight (8) tribal leaders who are constitutionally recognised as Chiefs or Dikgosi or Dikgosikgolo in Botswana.
In essence they are ex-officio permanent members of Ntlo ya Dikgosi. This has to be looked at together with the Bogosi Act (Cap. 41:01) (Act No.9 of 2008). It defines a Kgosi as a “person so designated by the tribe and recognised as such by the Minister under section 4.” Section 2 (2) of the Bogosi Act states: “A reference in any enactment to ‘Chief’, ‘Sub-Chief’ or any other variant in the nomenclature of ‘Chief’ or ‘Sub-Chief’ shall be construed as a reference to ‘Kgosi’ or any appropriate variation in the nomenclature of ‘Kgosi’.
‘Tribe’ is defined in the Bogosi Act as “any tribal community in existence and recognised as a tribe immediately before the commencement of this Act and includes such other tribal communities as may be so recognised under section 3.” Section 3 of the Bogosi Act states: “3(1) The Minister, after consulting a tribal community in its Kgotla, may recognise that tribal community as a tribe. (2) In deciding whether a tribal community shall be recognised as a tribe, the Minister shall take into account the history, origins, and organisational structure of the community, and any other relevant matters.” Ntlo ya Dikgosi is a part of the legislative arm of the government of the Republic of Botswana and, therefore, in some matters it carries considerable weight. Section 85 (1) and (5) of the Constitution provides: “(1) The Ntlo ya Dikgosi shall consider the copy of any Bill which has been referred to it under the provisions of section 88(2) of this Constitution and the Ntlo ya Dikgosi shall be entitled to submit resolutions thereon to the National Assembly.”
“(5) The Ntlo ya Dikgosi shall be entitled to discuss any matter within the executive or legislative authority of Botswana of which it considers it is desirable to take cognisance in the interests of the tribes and tribal organisations it represents and to make representations thereon to the President, or to send messages thereon to the National Assembly.” In turn, section 88 (2) of the Constitution reads: “(2) The National Assembly shall not proceed upon any Bill (including any amendment to a Bill) that, in the opinion of the person presiding, would, if enacted, alter any of the provisions of this Constitution or affect – (a) the designation, recognition, removal of powers of Dikgosi or Dikgosana; (b) the organisation, powers or administration of customary courts; (c) customary law, or the ascertainment or recording of customary law; or (d) tribal organisation or tribal property, unless - (i) a copy of the Bill has been referred to the Ntlo ya Dikgosi after it has been introduced in the National Assembly; and (ii) a period of 30 days has elapsed from the date when the copy of the Bill was referred to the Ntlo ya Dikgosi.” (emphasis added) The effect of section 88 (2) of the Constitution was to entrench the powers of the House of Chiefs, giving its members the right to frustrate the will of the peoples’ elected representatives in the National Assembly. But is Ntlo ya Dikgosi even representative enough to be able to have the moral authority to discuss the customary laws of all the people in Botswana and their tribal organisations? An answer to this question lies in examining the history and origin of the Tribal Territories Act. In Quarries of Botswana (Pty) Ltd v Gamalete Development Trust and Others 2011 2 BLR 479 (CA) the Court of Appeal offered this opinion at page 486: “The constitutionality of the Tribal Territories Act and the [Tribal Land] Act in the relevant respects has never been challenged. The inclusion of Forest Hill in the Bamalete Tribal Territory and its consequent vesting in the fifth respondent involved removal of certain powers of the Bamalete Kgosi and affected tribal property. Accordingly, the Constitution, in terms of the provision now contained in section 88 (2), required referral of the proposed legislative changes in question to Ntlo ya Dikgosi established under section 77 (1) of the Constitution. It has not been alleged that such referral did not occur or that the Bamalete Kgosi at the time objected. It must follow that the statutory termination of Bamalete freehold title in Forest Hill and vesting of the land in the respondent was not unconstitutional. The Tribal Territories Act is the bedrock of Ntlo ya Dikgosi, and the foundational base of present day Botswana. ‘Tribal territory’ is defined in the Bogosi Act as “any territory defined as such in the Tribal Territories Act, and includes the territory defined in Schedule B to the Botswana Boundaries Act”. There are currently eight tribal territories which correspond with the ex-officio, permanent members of Ntlo ya Dikgosi. The whole administrative edifice of the Republic of Botswana is anchored on the Tribal Territories Act. The Court of Appeal noted at page 483 in Quarries of Botswana: “The [Tribal Land] Act has never defined tribal land as such. Its relevant definitions are ‘land’ and ‘tribal area’. Land means land in a tribal area and tribal area means a tribal territory as defined in the then Chieftainship Act, now Bogosi Act (Cap 41:01) which, in turn, defines tribal territory as a territory defined in the Tribal Territories Act.” Issues of tribes, tribal territories, tribal land and Ntlo ya Dikgosi are characterised by such circuitous definitions, all because they are grounded upon the Tribal Territories Act. The Tribal Territories Act itself is a simple, descriptive piece of legislation which was first promulgated under Proclamation No.9 of 1899 (March 29, 1899) to assist the colonial administration in governing the natives. It was amended over time, including three times in 1933, and was ultimately embraced at independence.
Like all other legislation, the Tribal Territories Act was enacted as a social construct to achieve a certain purpose. As Priel (2019) noted: “Turning to our times, a few years before legal positivists began proclaiming the sociality of law as the core of legal positivism, John Finnis has already written that law is “a cultural object, constructed, or --- posited by creative human choices [and which] is an instrument, a technique adopted for a moral purpose, and adopted because there is no other available way of agreeing over significant spans of time about precisely how to pursue the moral project well.” The Tribal Territories Act is an anachronistic and hegemonic law, which needs to be reviewed alongside the Constitution so that Botswana can reflect its peoples and composition in the 21st Century. Priel further observes: “Now, turn back to law: Augustine’s famous question – Remove justice, and what are kingdoms but gangs of criminals on a large scale? – can be seen as one attempt of positing the question ‘What is law?’ in a way that makes the political aspect of the question salient. It compares law with something that may have the external appearance of law but is in reality a sham, no different really from organised robbery.
There is nothing obscure or ‘metaphysical’ about this way of thinking, no more than saying that not every state that has some majoritarian voting procedures is a democracy. When understood this way the question ‘what is law?’ is a political question , not a conceptual one, for it seeks to identify some political element that separates ‘real’ law from what merely looks like law.”
TENDEKANI E. MALEBESWA* *Malebeswa holds a Master of Laws (LLM) University of Sheffield (United Kingdom) and Bachelor of Laws (LLB) University of Botswana. In coming weeks, Mmegi will serialise excerpts from his note entitled ‘Tribal Territories Act, indirect rule, chiefs and subjects’