One hundred and twenty years ago, on May 9, 1891, the legal basis for British colonial rule over the Bechuanaland Protectorate was affirmed through the proclamation of a royal instrument known as an Order-in-Council.
In the name of Queen Victoria (Mmamosadinyana) the Order empowered the then High Commissioner, Sir Henry Loch, and his successors to enact laws for: “the administration of justice, the raising of revenue and generally for peace, order and good government of all persons within this order including the prohibition of acts tending to disturb the public peace.”
These same sovereign powers are echoed today in our country’s Constitution, which in paragraph 86 defines Parliament’s authority as follows: “Subject to the provisions of this Constitution, Parliament shall have the power to make laws for the peace, order and good government of Botswana.”
The wording of paragraph 86 is thus reflective of a formal shift of sovereign authority from the High Commissioner in South Africa, as the delegated representative of the British Crown to the people of Botswana through their elected representatives. Before its issuance, the 1891 Order had itself been legally justified by a Colonial Office official named John Bramestone in a landmark February 1891 “Memorandum as to the Jurisdiction and Administrative Powers of a European State holding Protectorates in Africa.” While it specifically focused on Bechuanaland the said Memorandum’s findings were subsequently applied to other British Protectorates in Africa such as Nyasaland, Uganda, and northern Nigeria. In it, Bramestone defined Bechuanaland as:
“An uncivilised territory to which Europeans resort in greater or less numbers, and where, inasmuch as the native rulers of the territory are incapable of maintaining peace, order and good government amongst Europeans, the protecting Power maintains courts, police and other institutions for the control, safety and benefit of its own subjects and of the natives.”
In the document, Bramestone further argued that sovereignty in “an uncivilised African territory” could be “exercised by the same methods as if the ruler had ceded his whole country to her Majesty.” He based this conclusion on the Foreign Jurisdictions Act under which Botswana had originally been occupied in 1885. The Act allowed the British Government to control its own subjects in “uncivilised” foreign territories. Bramestone further concluded that if Britain was allowed to protect its citizens in its Protectorates, then it had the right as a “civilised power” to place its courts and government officers in an “uncivilised territory.”
In other words, notwithstanding enduring popular myths about the origins and nature of the Protectorate, for 75 years Britain’s self-proclaimed right to rule over Botswana was legally justified not as an initiative to protect Batswana from the Boers or any other external threat, but rather to protect any and all Europeans from Batswana! Mmamosadinyana’s representatives had
Bramestone’s memorandum itself had been motivated by the Colonial Office’s determination to cancel concessions held by companies other than Cecil Rhodes British South Africa Company (BSACO). At the time Dikgosi Bathoen, Linchwe, Moremi II and Sebele had each granted economic concessions in their respective territories that contradicted the rights given to BSACO by the British. Most of these rival concessions recognised the Dikgosi, rather than Queen Victoria, as the “sovereigns of the soil”.
In 1889 Bechuanaland’s Administrator, Sir Sidney Shippard had tried to declare all non-BSACO concessions invalid. He had, however, been forced to back down when it was recognised that he had no authority to issue such a declaration. To overcome this hurdle, the British had issued an earlier, June 1890, Order in Council that had granted the High Commissioner authority to: “provide for giving effect to any power or jurisdiction which Her Majesty, her heirs or successors, may at any time before or after the date of this order have within the limits of this order.”
But the Dikgosi’s continued claims to the status of being the sovereigns of the soil were upheld days after the 1890 Order by the High Commissioner’s legal advisor, W.P. Schreiner, who had concluded that the proposals made by Gaseitsiwe, Khama, and Sechele when accepting the Protectorate in 1885:
“do not per se convey to the Crown any legal jurisdiction within the territories of those Chiefs [so that] the delegation to the British South Africa Company of a legal jurisdiction founded upon the due acceptance of the proposals referred to, would be an act requiring for its validity the approval or assent of the Chiefs concerned.” By then the British had come to realise that the Dikgosi would never voluntarily submit to colonial overrule. Indeed, throughout 1890 Bathoen, Linchwe, and Sebele worked together to block such British initiatives as the construction of a telegraph, the sinking of wells, and the stationing of police in their territories. When their protests failed they turned to lawyers. Their claim to be sovereigns of the soil thus posed a serious legal challenge to making the BSACO the intended rulers of the Protectorate.
To assure compliance to the Order the presence of the paramilitary Bechuanaland Border Police was expanded from 1891 beginning with the stationing of the “K Troop” in what is now the “Village” section of Gaborone to specifically watch over the southern Dikgosi.