Dikgosi have raised concern that there is a friction between Customary Law and Common Law which renders them (Dikgosi) inferior.
They say because they have not studied law, their powers are always questioned by their stakeholders more especially lawyers. Dikgosi believe they are not allowed to work in their own space as the law prescribes. One major issue is that once a case has been decided by a customary court, instead of following the laid down procedure of being taken to Customary Court of Appeal, some lawyers decide to jump the queue and take it to the High Court.
Manyana Senior Chief Representative, Kgosi Kebinatshwene Mosielele stated that Dikgosi preside over 80 percent of cases in the country. He said if Dikgosi were not taking up such cases, magistrate courts could be overwhelmed by cases. Kgosi Mosielele said Batswana prefer customary courts because they are cheap, faster and accessible.
“People say we cannot try cases because we have not trained in law. But before colonial days Dikgosi were there and dealing with such cases. We are not here as Dikgosi to punish people we are here to reconcile. Of course we are not trained lawyers and there are a few of us who have Diploma in law but we believe with facts being there, deciding a case should not be such a problem.
“That is why we do not need lawyers at a Kgotla,” he said when speaking at Legal Aid Botswana stakeholders’ forum in Gaborone. Kgosi Mosielele said it is important as stakeholders to work together to ensure justice is served to everyone.
Senior Legal Aid Counsel, Mojaki Seope stated that there should not be any friction between the two. She pointed out that if anything the two have to complement each other. Seope explained that 90 percent of cases from customary courts are confirmed by the High Court.