Customary Law marriages are equally legal
Batswana are either ignorant or they despise their culture, observes Deputy President of Gaborone West Customary Court, Motlamma Baloi. A typical example to show how Batswana undermine their own culture is their propensity to marry under the Common Law while shunning Customary Law marriage.
Baloi explains that Customary Law marriage, which consists of Patlo and Magadi is fully recognised under the laws of Botswana, however, she decries that because of lack of knowledge, Batswana mix the two. That is, a couple will perform the customary rituals such as Patlo and Magadi, which are sufficient to earn them a marriage certificate from the Kgosi but then go on to the District Commissioner, who uses Common Law! Baloi says once married customarily and then the couple crosses over to the common law, the former regime becomes null and void.
This poses difficulties for families, especially in the event of death when parents tend to defer to culture to resolve disputes or to divide the bereaved person’s estate. At this point, the elders or parents clash with Common Law provisions which grant the remaining spouse full authority to dispense with the estate and everything else related to the marriage.
“For example, if the surviving spouse wants to cremate their partner, they have every right to and parents of the deceased spouse have no say in this,” explains Baloi. Now, this runs contrary to Setswana customs, which regard a wife (woman) as a “child” in a marriage. In Setswana, Baloi explains, the wife is “lelwapa” while the man is “Kgotla”.
Baloi, a mother of three (a man and two women, the youngest 32 years old) says Batswana should therefore make a choice between being Batswana or Whites and must understand the full repercussions of this choice. Contrary to a widely-held perception that Setswana is arbitrary and dictatorial, Baloi says in fact it all boils down to individual choice – the proof of the pudding is in the eating, if we may say!
Therefore, she suggests, that if Batswana feel that their culture does not add any value in their lives because it has been overtaken by contemporary lifestyles, it is upon them to lobby their diKgosi to do away with it or to improve it. Better still, she implores today’s Magosi, who are well-read to promote Customary Law and to do everything in their power to bring their people to speed with it. Baloi has finally called it quits after 39 years of loyal public service all of it spent in tribal administration.
She retires a contented person, grateful for the many years in which she accumulated a wealth of knowledge that has shaped and influenced some of the policies in tribal administration. She began work in this department at Maun in 1983 as an Assistant Tribal Secretary and rose through the ranks serving in various places across the country until she perched at the pinnacle of her career as Deputy Customary Court President at Gaborone West Customary Court.
Baloi started her primary in Rasesa and completed her senior secondary education at Molefi Secondary School in Mochudi.
From 1983 she was an assistant tribal secretary stationed in Maun until 1990 when she was transferred to Masunga still as an assistant tribal secretary mainly doing administration work At that time it was difficult, there was lots of paperwork to be done yet with scant resources. For instance, it took a long time to process payment for someone in Maun because the papers first had to be dispatched to Gaborone.
In Masunga she was promoted to Deputy Tribal Secretary and worked there until 1996 when she was promoted to Tribal Secretary and transferred back to Maun.
Here she stayed until 2001 when she was transferred to Molepolole at the same time that Kgosi Kgari Sechele II was installed. She worked as Tribal Secretary and was transferred to Lobatse in 2010.
Lobatse was the first urban place Baloi ever worked in. Here she was introduced to the Court President, a new setup and nomenclature from what she had been accustomed to in rural (villages) areas where she worked under Kgosikgolo or Kgosi and Headman of Arbitration.
In 2015 she was transferred to Gaborone where she worked until 2018 when she was promoted to Deputy Court President.
Her experiences show that urban dwellers are difficult to deal with because people in towns do not know each other. This makes it hard to prosecute cases within the prescribed time. Batswana landlords don’t know tenants, others harbour illegal immigrants and this leads to their being cheated and failing to get justice when they go to the courts.
Baloi explains that Customary Law marriage, which consists of Patlo and Magadi is fully recognised under the laws of Botswana, however, she decries that because of lack of knowledge, Batswana mix the two. That is, a couple will perform the customary rituals such as Patlo and Magadi, which are sufficient to earn them a marriage certificate from the Kgosi but then go on to the District Commissioner, who uses Common Law! Baloi says once married customarily and then the couple crosses over to the common law, the former regime becomes null and void.
This poses difficulties for families, especially in the event of death when parents tend to defer to culture to resolve disputes or to divide the bereaved person’s estate. At this point, the elders or parents clash with Common Law provisions which grant the remaining spouse full authority to dispense with the estate and everything else related to the marriage.
“For example, if the surviving spouse wants to cremate their partner, they have every right to and parents of the deceased spouse have no say in this,” explains Baloi. Now, this runs contrary to Setswana customs, which regard a wife (woman) as a “child” in a marriage. In Setswana, Baloi explains, the wife is “lelwapa” while the man is “Kgotla”.
Baloi, a mother of three (a man and two women, the youngest 32 years old) says Batswana should therefore make a choice between being Batswana or Whites and must understand the full repercussions of this choice. Contrary to a widely-held perception that Setswana is arbitrary and dictatorial, Baloi says in fact it all boils down to individual choice – the proof of the pudding is in the eating, if we may say!
Therefore, she suggests, that if Batswana feel that their culture does not add any value in their lives because it has been overtaken by contemporary lifestyles, it is upon them to lobby their diKgosi to do away with it or to improve it. Better still, she implores today’s Magosi, who are well-read to promote Customary Law and to do everything in their power to bring their people to speed with it. Baloi has finally called it quits after 39 years of loyal public service all of it spent in tribal administration.
She retires a contented person, grateful for the many years in which she accumulated a wealth of knowledge that has shaped and influenced some of the policies in tribal administration. She began work in this department at Maun in 1983 as an Assistant Tribal Secretary and rose through the ranks serving in various places across the country until she perched at the pinnacle of her career as Deputy Customary Court President at Gaborone West Customary Court.
Baloi started her primary in Rasesa and completed her senior secondary education at Molefi Secondary School in Mochudi.
From 1983 she was an assistant tribal secretary stationed in Maun until 1990 when she was transferred to Masunga still as an assistant tribal secretary mainly doing administration work At that time it was difficult, there was lots of paperwork to be done yet with scant resources. For instance, it took a long time to process payment for someone in Maun because the papers first had to be dispatched to Gaborone.
In Masunga she was promoted to Deputy Tribal Secretary and worked there until 1996 when she was promoted to Tribal Secretary and transferred back to Maun.
Here she stayed until 2001 when she was transferred to Molepolole at the same time that Kgosi Kgari Sechele II was installed. She worked as Tribal Secretary and was transferred to Lobatse in 2010.
Lobatse was the first urban place Baloi ever worked in. Here she was introduced to the Court President, a new setup and nomenclature from what she had been accustomed to in rural (villages) areas where she worked under Kgosikgolo or Kgosi and Headman of Arbitration.
In 2015 she was transferred to Gaborone where she worked until 2018 when she was promoted to Deputy Court President.
Her experiences show that urban dwellers are difficult to deal with because people in towns do not know each other. This makes it hard to prosecute cases within the prescribed time. Batswana landlords don’t know tenants, others harbour illegal immigrants and this leads to their being cheated and failing to get justice when they go to the courts.
