The case of Monica Tirelo v The Attorney General. A landmark case when the conversation of the complexities of the legal right to representation comes into discussion. A case where a woman was refused the right to legal representation simply because the matter was brought before a customary court. A right plagued by ethical uncertainty. The question of legal representation in customary settings has always been a sensitive topic, as it forces us to examine it from a gentrified perspective.
This right is encapsulated in the Constitution in section 10(2)(d), which provides that every person brought before a court of law has the right to legal representation. However, this right does not translate to customary courts, essentially providing an exception. It has been argued that the introduction of legal representation undermines the customary court judges due to the mismatch in academic prowess. But what about the accused? What about their fundamental right to legal representation?
As highlighted in Advocate Duma Boko’s article (as cited in the Criminal Law Forum, 11, pg. 445-460), the current president of the Republic of Botswana, on the right to legal representation, this right has been exempted from customary courts in an effort to preserve culture and not undermine the customary court judges, who usually consist of chiefs and headmen. Laymen backed by no legal academic backgrounds. Additionally, these courts during the colonial era were structured in the way that they are in an effort to preserve culture and prevent meddling in tribal affairs by the British administration. However, this introduced a problem that plagues the customary system today: the over-incarceration of accused
individuals.
The Complexities Between the Preservation of Culture and Rights
A 2022 statement by Justice Moroka stated that 75% of Botswana’s inmates are from
customary courts. This is a result of a lack of legal training, the unavailability of legal
recourse and conviction of crimes that do not exist in the Penal code: President Duma Boko
touched on the latter as a factor of excessive incarceration in his article on the right to legal
representation. One would think that a legal system that has the ability to incarcerate
individuals would be backed by some legal academia, even if it is not as extensive as that of
the common law system. There was a clear lack of consideration when it came to the
structure and provisions of customary courts. The only thing that they were concerned with at
the time was maintaining their autonomy in culture without considering how this would
inadvertently affect accused individuals.
Would it be fair to completely strip the customary court system of the right to incarcerate?
This question is answered by the amount of value that Batswana place in culture and tribal traditions. Despite the fact that most Batswana live in a modernized society, there are plenty of individuals who still live their lives as tribesmen. It wouldn’t exactly be fair to force them out of their way of life to fit what we deem as modern mechanics. They deserve the right to legal recourse in the manner in which they wish and see fit.
The customary legal system.
The entire plight of tribal chiefs in securing complete authority over their own tribal affairs
was rooted in the prevention of the erasure of culture and chieftaincy. Taking away their right
to incarceration would essentially be reducing their hand in the tribal hierarchical system,
undermining their roles as chiefs.
Bridging the Gap between Rights and Customary Law without Compromising Its Integrity
The answer wouldn’t be to take away their right to incarceration, but to equip chiefs and headmen with some sort of legal training based on the natural laws of justice and human rights. This would exponentially curb the issue of mass incarceration in the customary court system. This training would not only ensure that accused individuals get fairer trials, but it would also inadvertently lead to more trust being placed in the customary court system. Additionally, in the same way that chiefs and headmen would be receiving specialized training, there is a need for a special selection of tribesmen to undergo the same training in addition to further education on tribal affairs and customs, according to the basic traditions and norms of every tribe or the tribesmen they would be representing or advocating for. This
specialization would make amends for the lack of consideration that was put into the structuring of the customary court system, ensuring every single Motswana, no matter the creed and background, enjoys the right to legal representation.
Two questions remain.
Can the customary court system survive in an era of rising recognition of human rights issues, and if so, does it risk becoming gentrified and losing its essence? Only time could tell what the customary court system would become with the widespread recognition of human rights; any robust legal system can evolve, and hopefully, this beloved system is no different. However, it would be intellectually dishonest not to acknowledge the fact that antiquated practices lose their identities and place in modern civilization as time goes by. It is bound to change its shape and even risks possible gentrification and erasure of
its core principles.
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