The State and the Social. Ørnulf Gulbrandsen
as native laws and customs were not ‘incompatible with the due exercise of His Majesty's power and jurisdiction’.7 Motivated by the experience of allegedly autocratic, incompetent or otherwise unsuitable dikgosi – the most obvious case being the deposition of Kgosi Sebele II of the Bakwena, mentioned above (see Ramsay 1987: 39f.) – the resident commissioner argued that ‘it is essential that we should legalise the position of the chief…there must be provisions for the Government to recognise the Chief and his suitability for the chieftainship in the interest of the whole tribe’.8
The first proclamation (No. 74 of 1934) stipulated channels through which ‘the tribe’ might articulate dissatisfaction with their kgosi as well as proper procedures to hear the kgosi's defence before the administration made its decision in such matters. The dikgosi rejected this and other provisions in the proclamations on the grounds that these provisions fundamentally disagreed with the Order-in-Council of 9 May 1891. As described above, this document authorized the high commissioner to legislate by proclamation; however, he was restricted by the condition that he should, I reiterate, respect any native laws or customs regulating civil relations (see Schapera 1970: 51). Thus, the new rules for the recognition and instalment of a kgosi were perceived as being in basic disagreement with the Tswana maxim Bogosi boa tsaleloa, gab o loeloe (‘A man should be born for the kingship, not fight for it’). In cases of abuse of power or misconduct in office, it was argued, they had their own procedures: Kgosi ke kgosi ka morafe (‘The kgosi is king by virtue of the tribe’).
The dikgosi feared that they had now been relegated to the lower end of the colonial state hierarchy, supervised by and committed to report to the local resident magistrate. This was obviously intolerable for powerful figures who were accustomed to being recognized by their people according to the dictum Kgosi ke modingwana, ga e sebjwe (‘The kgosi is a little god, no evil must be spoken of him’) and whose authority was sustained by another important maxim: Letswe la kgosi ke molao (‘The kgosi's word is law’). They had also been accustomed to relating directly to the high commissioner. In one of my conversations with Kgosi Bathoen II he stated that to him the resident magistrate was a foreign representative and ‘not my superior’ (cf. Picard 1987: 51).9
Furthermore, when the proclamation of 1934 mentioned above required the dikgosi to establish ‘Tribal Councils’ comprising named members with whom the dikgosi were obliged to consult, it conflicted both with a kgosi's customary privilege to consult whomever he wanted and with his commitment to give due importance to the views of his subjects as expressed in the public sphere of the kgotla where the ‘entire morafe’ (i.e. all adult men) were entitled to participate. Both proclamations, if fully implemented, would probably have undermined the popular forum of the kgotla, idealized by people as the place where all authority figures should make their operations transparent (see Chapter 8). The administration, however, saw the kgotla as patently open to manipulation by the dikgosi and thus conducive to their alleged exercise of autocracy.10 They wanted to establish identifiable and thus accountable bodies that were less dependent on the dikgosi.11
The aim of ensuring legal-rational accountability was particularly apparent in the ‘Natives Tribunal Proclamation’ (No. 75 of 1934), which established that the courts of the merafe were to be divided into two classes of tribunals, designated as Senior Tribal Tribunals (presided over by the kgosi) and Junior Native tribunals. According to this system, ward and descent-group courts were no longer judged competent to pass legally binding sentences. The tribunals were to be composed of identifiable councillors selected from the Tribal Council and nominated by the kgosi, and the councillors were to be paid a fixed salary. The dikgosi refused to comply with the requirement to elect named members to the tribunals, rhetorically asking: ‘If anybody is to be paid are we going to pay all the Chief's Councillors, which implies the whole tribe?’12
The dikgosi were obliged to ensure that written records of their proceedings were available for inspection by the local magistrate, in part to ensure adherence to the principle of equality before the law. It had been a common practice for quite some time to keep written court records, so the request was not in itself controversial. What provoked the dikgosi was the underlying intention to facilitate the appeal of cases from the Senior Tribunals, over which the dikgosi should have presided, to the local resident magistrate court. These provisions, which went together with the recognition of ‘native laws and customs’ only insofar as they did not contradict the legislation of the colonial power, epitomized the subjection of the dikgosi – both as legislators and as judges – to the administration.
Behind the strong resistance towards the proclamations lay also the fear of annexation: in the last session of the Native Advisory Council13 at which the two proclamations of 1934 were debated, the following resolution was addressed to the high commissioner: ‘This meeting of Chiefs and Councillors present on behalf of their respective Tribes of the Bechuanaland Protectorate records its protest and objection to the incorporation of their Territory into the Union of South Africa’14 (see preceding chapter). Kgosi Tshekedi, regent of the Bangwato between 1926 and 194915 and always on the alert in relation to the question of annexation, had evidently been ‘particularly alarmed by the similarities between the proclamations and the South African Native Administration Proclamation No 38 of 1927’ (Wylie 1990: 113). Similarly, Kgosi Bathoen II of the Bangwaketse indicated in several of our conversations that they all ‘saw the writing on the wall’, but could do nothing at this stage except state their objections, since the council was advisory only.16 The resident commissioner and the dikgosi (with the Tswana councillors) failed to reconcile their differences on the matter.17
The two most forceful dikgosi at the time, Kgosi Bathoen II of Bangwaketse and Kgosi Tshekedi of Bangwato, were the leading figures in further efforts to have the proclamations abandoned. In the typical Tswana manner, they brought their case to court, suing the high commissioner by invoking, among other things, precisely the same Order-in-Council of 1891 with which the proclamations had been introduced (see above). In particular, they claimed that the high commissioner had legislated in contradiction of the rights accorded their respective tribes by treaty with Great Britain. The judgement, however, lay in the hands of the British themselves: a special court was set up that ruled against the dikgosi, stating that a treaty could not prevent His Majesty from legislating, and that as a result the administration had ‘unfettered and unlimited power to legislate for the government and administration of justice among the tribes of the Bechuanaland Protectorate’.18 Thus although the dikgosi invoked the ‘treaty’ their ancestors had made with the British in support of their claim that the ‘protection’ was a matter of partnership,19 the judgement made it utterly clear that the rulers of the Tswana merafe in the protectorate were subject to the orders of the colonial state.
However, as Wylie has observed (1990: 115), ‘[t]he administration's victory was symbolic’ in the sense that it was never really implemented. For example, tribal councils and tribunals were only partially established; the dikgosi kept on the customary practices of consultation (kgakololano), particularly in relation to their selected councillors and the kgotla. The people at large did not experience any significant changes: they continued to respect the judgements made in descent-group and ward courts, which were occasionally appealed to the royal court, but very seldom further to the British Magistrate Court.
This also meant that the dikgosi continued to run their merafe in autocratic ways. Also, even though the colonial power had now firmly established that the dikgosi were under the full legislative authority of the colonial state, the British still rarely interfered with their rule. In fact, ‘the chief's right to legislate independently was still officially recognised; and, as in the past, the Administration often preferred to advise, not to order, him to enact measures it favoured’ (Schapera 1970: 63, see also Jeppe 1974: 138). Furthermore, the minutes from the Bechuanaland Protectorate Native Advisory Council leave the strong impression of a generally cooperative relationship between the resident