TITLE:
The Evolution of Customary Law Arbitration: A Botswana Practice
AUTHORS:
Tebosego Lorato Baikakedi
KEYWORDS:
Customary Law, Arbitration, Mediation, Reconciliation, Disputes/Dispute Resolution, Restorative Justice
JOURNAL NAME:
Beijing Law Review,
Vol.14 No.2,
June
8,
2023
ABSTRACT: Many indigenous peoples and local communities place a strong emphasis on customary laws and procedures as part of their fundamental identities. Several facets of their lives are governed by these regulations and procedures. Members of indigenous and local communities might have their rights and obligations clarified by them. Customary law has on many occasions helped individuals describe or characterize the traits of the community’s very identity. It is by definition intrinsic to the life and customs of the indigenous people and even local communities. Custom can be explained as a law of behavior binding on those within its reach, established by lengthy practice. Law is vital in any society that wants to protect human rights. This protection comes in two ways where the first one is being legally guaranteed the protection and the second one is by giving victims of violations a way to get their rights back. In most instances, the penalties imposed in these situations also act as deterrence to future abuse. Before African states were colonized, governance of these states was run by a chief and a council. The village chief was answerable to the headman, who served as the head of the smallest group. As conflict is inevitable in every group of people, Botswana’s setup is not an exception however in every community and village there are structures for conflict and dispute resolution among the community. As arbitration is a dynamic dispute resolution mechanism varying according to law and international practice, national laws do not attempt a final definition. It is a practice that has managed to keep most communities intact even in the past after a conflict had occurred. As the world keeps changing and things evolving, in the era of reforms and progressive laws, the paper intends to look into the evolution of customary law arbitration. This is also in light that custom by itself takes time to change and evolve even under newly evolving economic and world environments. Customary law is more on the conservatism nature, therefore how does a progressive legal reform affect the welfare of different sections of the marginalized populations in society? Moreover, the paper looks at dispute resolution through the eyes of customary law amid the hybrid of other legal systems in the country being the common law and the Roman-Dutch legal systems.