# **_The Interplay between Customary and Civil Law Institutions_**

The Botswana Centre for Human Rights estimates that 80 percent of cases are handled in over 500 customary courts countrywide.<sup>38</sup> Other studies have also consistently showed that in civil matters, customary courts handle more disputes than magistrates’ courts, and in criminal matters they play a substantial role.<sup>39</sup> The customary court system operates and is regulated separately from the statutory court system. A case can be transferred from a customary court to a statutory court if requested. Customary courts have jurisdiction over both civil and minor criminal law matters. Criminal jurisdiction is limited by the penalties capable of being imposed, as well as by the particular type of offences committed. Customary courts have no jurisdiction to hear offences such as treason, bribery, counterfeit currency, robbery, rape, issues related to statutory marriages and notably, cases related to witchcraft. A customary court has the power to sentence a convicted person to a fine, imprisonment, corporal punishment, but is limited in terms of the sentence it can impose by the terms of its founding warrant.<sup>40</sup> In the situation where a customary court is exercising a criminal jurisdiction, it is obliged to follow the Customary Court (Procedure) rules governing a criminal trial.

Customary courts are free of charge, and lawyers are barred from proceedings under Article 10(12)(b) of the Constitution. These courts operate with few standardized rules of evidence, preferring negotiation to adjudication, and are staffed by persons without significant legal training.<sup>41</sup> These courts enjoy a great deal of cultural legitimacy, are preferred by both the local and national police service and dispense swift and accessible justice.<sup>42</sup> However, they are also viewed as problematic from a gender perspective, since their informal procedures and lack of female participation can increase the risk of incorporating discriminatory stereotypes of women into court procedures and findings.<sup>43</sup> These reasons and concerns, such as corruption, resulted in the creation of the Customary Court of Appeal in 1986, which was designed to provide a “more credible, faster and cheaper method of dealing with appeals and limit the appeals that go before the non-customary courts”.<sup>44</sup> This impetus to limit the appeals from customary courts to statutory courts can also be seen in jurisprudence of both the Customary Appeal Court and the High Court.<sup>45</sup>

> 38 Kumar 2010

> 39 Fombad 2004 at 181.

> 40 In terms of Section 8 of the Customary Courts Act, the minister may constitute a customary court by “warrant” prescribing the constitution of the court, as well as the powers and duties of assessors.

> 41 Kumar (2101)at 294. See also Botswana Country Report on Human Rights and Practices for 2011, United States Department of State, Bureau of Democracy, Human Rights and Labour at 6.

> 42 Human Rights Council 2008

> 43 Id 289 See also Dishwanelo, The Botswana Center for Human Rights, “human rights, not human wrongs”. <u>http://www.ditshwanelo.org.bw/botswana.html#acc;</u>

> 44 Id 186

> 45 Id 294-295

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