Customary courts system: A diabolical nuisance

| Friday July 25, 2008 00:00

Like heartless blood sucking ghouls, chiefs, the little-knowing merciless messiahs of the system, continue to suck poor and unrepresented accused persons into crammed jails, utterly oblivious to their constitutionally entrenched fundamental right to fair trial. With charlatan confidence and myopic faith from the government (the three branches), these courts are, in effect, crushing to nothing and eating away at the essentials of justice and making ultimate nonsense out of the doctrine of the rule of law, a concept we profess to sanctify. As customary courts are manifestly tailored for the underprivileged and the not so fortunate, the injustice ferociously hits and stings the impoverished members of the society whilst the fortunate, rich and wealthy seek justice from common law courts, where there is the right to representation, rigorously trained and adequately paid judges and magistrates and justice is almost always guaranteed.

The underlying rationale and entire fabric of the institution of customary law rest on a mistaken belief. It is not only wrongly assumed that Chiefs (born or elected) are matchless repositories of customary law; it is also believed that they are well vested in basic principles of fair decision-making. It is held, wholeheartedly, as a universal truth that these men and women are born masters of substantive and procedural customary law. In fact, this fallacious mantra unfortunately boasts more than a crumb of comfort and unmerited advocacy in the empty and flat rhetoric of judicial opinions by judges of both the High Court and the Court of Appeal who, in the world's view, should  know better. Notably intriguing is that while our law-makers stalwartly believe that these men and women are indeed authorities of customary law they do not bear any sensible illustrations of how it is that being a chief spontaneously anoints one with such tremendous knowledge of this so called unwritten law (is it not time to say 'partly written' considering Schapera's text and judicial decisions?). Of course, those of us who are naive and gullible are soon swindled into swallowing the colonial codswallop that they acquired this knowledge through oral tradition, it is high time we broke away from the habit of feeding on colonial-times junk. If customary law emerges from what people do and what they believe and accept to be binding on them, as it is often asserted, how do chiefs establish that a certain belief is now binding? How many tribesmen should consider it binding and where do chiefs acquire the expertise to gauge such? For instance, chiefs still consider concubines to be the bedrock of Tswana way of life, is that customary law?

More troubling is the fact that some chiefs who preside over these courts have completely no legal background; some are even absolute illiterates, complete closed-books. Despite this, our law-makers in their freak wisdom have ordained these laymen with the task of decision-making: Investigating facts and evidence before them, finding the legal issues arising in the cases before them and then, applying it to the facts to produce a fair judgment. As if that is too little, these laymen after hunting for what in their view are applicable principles of customary law are expected to determine whether by any chance those principles might be contrary to morality, humanity, natural justice or incompatible with any written law (whatever these terms mean). That is not all.

Additionally, the minister may authorise these courts to administer the provisions of any written law. 

These courts are also burdened with giving effect to certain provisions of the Constitution (and thereby, interpreting the Constitution). Also, in the exercise of their criminal jurisdiction these courts are further required to be guided by the provisions of the Penal Code. Amongst the laws that these courts apply, include the Tribal Land Act and the Fauna Conservation Act. Michael Mothobi (Sunday Standard June 1-7, 2008) argues that over the years a competent cadre familiar with the system has developed, therefore implies in his argument that it is not necessary to have individuals trained in the law and experienced in litigation in these courts. It is correct there are individuals who have grown familiar with the system, but only too few individuals for the system to rely on plus the same individuals are not fully equipped with certain areas of the law.

Furthermore, Mothobi's view fails to account for the numerous appeal cases that go before the High Court where sentences and convictions from customary courts are habitually quashed due to miscarriages of justice. Again, if reliance is exclusively placed over experience acquired over a long period of time as suggested by this argument, what happens when the experienced generation expires, do we allow the armatures to administer justice while gaining experience? Furthermore, mere familiarity with the system, not backed up by legal education is inadequate as it can never furnish one with a complete set of skills and the knowledge fundamental to interpreting and constructing laws. What is needed is more than a mere working knowledge of the law. They must know the Interpretation Act. They must know the rules of interpreting the Constitution of Botswana. They must know how penal provisions are interpreted.

The more often extolled virtues of this system, its simplicity of procedure, speed and affordability, are desirable qualities of any judicial system. Nevertheless, it is absurd and ridiculous to attain such virtues by sacrificing the cardinal and legitimate purpose of courts, which is the rendition of justice. It is wrong to risk this noble mandate of the courts by charging unknowing heads with its dispensation. Proper administration of justice envisages a carefully selected league of upright and honest men and women, who can read and write, trained in the field of law, and possessing the capacity to make impartial and independent judgments, not a randomly elected or born bunch of half-literates whose directions are guided by whim and local passions. Justice Bhagwati, former Indian Chief Justice was correct in saying that the rendering of an honest unbiased opinion, based on law and fact, is far from simple; it is one of the most difficult tasks, which can be imposed on fallible man. It demands wisdom as well as knowledge, conscience as well as insight, a sense of balance and proportion and if not absolute freedom from bias and prejudice at least the ability to detect and discount such failings, so that they do not becloud the fairness of the judgment. Also that is what section 10 of the Constitution of Botswana envisages.

A call for legal education and strict observance of basic principles of fair trial by presiding chiefs must not be understood as a call for attorneys to appear before customary courts.

Our legal profession is not, in the least, a good model with respect to conformity with legal ethics despite the existence of the law society that is charged with upholding standards of professional conduct. The lack of transparency and openness about its affairs disconnects the law society from the populace, who needs to know its functions and purpose. Moreover, the law society is doing nix to enlighten the populace about the trillion deceptive schemes used by some lawyers on clients to swell the costs of litigation. As a result, the profession continues to survive on the ignorance of Batswana who fall prey to these unethical lawyers. Customary courts' litigants mostly consist of those who are illiterate and cannot afford the costs of engaging lawyers to represent them at common law courts; it, therefore, is not an intelligent idea to expose them to the kind of legal profession we run. However, the paramount reason why lawyers cannot and should not be allowed to appear before customary courts is that chiefs, the presiding officers, do not have any legal background. How do we expect them to handle lawyers when they cannot handle basic trial procedure? It would not be in the interests of justice and logic to introduce lawyers to these primitive and anachronistic courts, there must be serious restructuring of the system first.

Although this flawed system must be blamed on the legislature, one really should not expect more from the law-makers. Forget about those who slumber and hit the sack during deliberations, forget about their short memories, forget about the ones who lost their voices after being elected, forget about those who don=t attend the proceedings, our law-makers deeply lack sagacity, insight and foresight  in the enactment of laws and creation of effective institutions. The way I see it, if countries, especially South Africa was to outlaw replication of its statutes, Botswana might only have one law to keep, the Constitution, if Britain agrees. That is not to say comparative legislation is a bad exercise, it becomes utterly unacceptable when laws are merely lifted from foreign statutes and not adjusted to accommodate the conditions of the copycat. Besides, this country lacks an independent parliament, all our law-makers ever do is, like rats, wait till there is something in the Cabinet. Also, like our chiefs, some of our law-makers cannot read, write or speak English, as stipulated by the Constitution, no wonder some go mute within the parliamentary doors and look like drowned rats, no wonder laws are never rigorously critiqued and debated, reviewed and revised. Why they do not see anything disturbing with the customary court system is at least discernibly clear.

It is time for the judiciary to come out in the open and tell the truth that customary courts are a pain in the ass, that it is insulting, unbefitting and perilous  to have to entertain appeals from customary courts with poorly prepared records, with indecipherable records, sometimes without a single record, that it jeopardises the administration of justice to persistently reiterate the procedural rules of taking pleas and then have to deal with criminal appeals on that same subject again and again like they are deliberately being flouted. It certainly is prejudicial to the interests of the society and fatal to the intention of the parliament to have to quash convictions and sentences simply due to incompliance with simple procedure, the judiciary must find that same violent voice that Justice Unity Dow found in the CKGR case. If the judiciary really cares about the administration of justice and defending human rights then timidity and deadening silence is undoubtedly the most preposterous solution. The concept of separation of powers cannot muzzle the judiciary from airing concerns about the subject of proper administration of justice and human rights violations; it will be a foolish and pathetic pretext to assert that the principle forms such an impediment.

As long as it remains, this medieval system will continue to hurl insults to the rule of law, human rights, justice and undermine the dignity of Batswana. It is high time our customary court system employed persons trained in the law; it is high time Batswana had their constitutional rights observed and respected. Also, the system of justice where the rich have their own modern (common law) courts while the poor seek justice from archaic courts is totally displeasing. It will not hurt to have a system where residents of old Naledi and residents of Phakalane seek justice from the same courts, or aren't they equal before the law? While chiefs may sit in the State house, in the rendition of justice, something more than a rainmaker in a leopard skin is required unless the government is hell-bent on messing up with the administration of justice and assumes that the fundamental rights of Batswana are not worth a damn.

Gosego. R. Lekgowe