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 commissioner and the dikgosi (see Gabasiane and Molokomme 1987: 162–63). The controversies surrounding the proclamations of 1934 stand out as exceptional.20
It is therefore difficult to agree that ‘a series of colonial proclamations and ordinances…undermined the institution of chiefship’ (Vaughan 2003: 28) or that ‘the cumulation of multiple acts of British authority and the pervasive influence of commercialisation served to undermine the morafe as a system of rule’ (Peters 1994: 42). As long as such claims are not substantiated by an examination of the real political impact of the proclamations on the authority of the dikgosi and the hierarchies of authority relations over which they presided, we cannot simply assume that the British right to issue proclamations had an undermining effect. First, the British often preferred, I repeat, to let the dikgosi legislate (see Chapter 1), and if they wanted to legislate themselves, the dikgosi were usually thoroughly consulted in the Native/African Advisory Council (see Makgala 2010: 60), as is abundantly evidenced by the extensive minutes from the meetings. Secondly, it can also be argued that proclamations might increase the dikgosi's authority since they expanded the field of their exercising jurisdiction – an activity central to the reproduction and strengthening, as I argued in the preceding chapter, both of their authority and of their respective merafe's sociopolitical order.
It is tempting to suggest, therefore, that in the long run the dikgosi triumphed in important respects. This point is underscored by the arrival of two new proclamations in 1943 by which both the tribal councils and the tribunals were abandoned. Moreover, ‘the list of offences excluded from the jurisdiction of the Courts is now reduced to cases in which a person is charged with an offence punishable by death or imprisonment for life’ (Hailey 1953: 226), a change which largely restored the authority of the dikgosi to its original form (cf. Ashton 1947: 239).21
The increasingly relaxed attitude of the British to implement reforms stipulated in the proclamations of 1934 which might be seen as the background of the prevailing uncertainty – virtually throughout the colonial era – about whether to hand the protectorate over to the Union of South Africa, militated against implementing a reform that would have implied substantial costs. More
