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Botswana’s customary courts were known in the past for their procedural openness to debate. The presiding judge allowed members of the court, usually in ascending order of seniority, to express their views on the case, before finally reaching a judgement. Most scholars of Tswana society, from Schapera onwards, agree that the chief’s final judgement was responsive to public opinion as expressed during a hearing. It was this public debate that arguably made Tswana customary law “living law,” reflecting current understandings and changing normative assumptions in the process of decision-making in courts. But this customary form of consultation was challenged by the first British Resident Commissioner to Bechuanaland, who ultimately lost his case, leaving the matter for 90 years until an amendment in the 2013 Customary Courts Act granted chiefs or presiding court headmen sole decision-making authority, without the need for consultation. This new dispensation was evident in the village chief’s conduct of a 2017 customary court case on inheritance of properties of a long-deceased man in Moremi village. The article considers the implications of this radical legal reform from above for an understanding of customary law as living law, both in Botswana and comparatively.

Response to HauBook Symposium on Werbner, Richard. 2015. Divination’s grasp: African encounters with the almost said.Bloomington: Indiana University Press.