Anne Griffiths

Legal Duality: Conflict or Concord in Botswana?

This paper is concerned with the relationship that exists between Customary and Common law in Botswana. Does it promote conflict or concord? This will be explored with reference to the general relationship between the two systems and in the particular context of marriage, divorce and division of property. One may argue for the conflict approach if one views the systems as ppositional or one may argue that there is concord by acquiescence, given the subordinate position occupied by Customary law within the national legal system of Botswana. The aim of this paper is to do neither, but rather, to show that “duality” with its implications of separateness is inappropriate, that the two systems are linked and have a symbiotic relationship, one which involves a process of mutual adaptation. The aim of this paper is to show that any conflict or concord that exists should not be defined in terms of systems viewed as independent isolated units or in terms of labels such as “Common” or “Customary” law but rather in terms of values which relate to mode of life and attach themselves to certain kinds of property. Within the national legal system of Botswana Customary and Common law co-exist. Customary law is defined as being “in relation to any particular tribe or tribal community the customary law of that tribe or tribal community so far s it is not incompatible with the provisions of any written law or contrary tomorality, humanity or natural justice”.

Pursuing Legal Pluralism: The Power of Paradigms in a Global World

The Jubilee Congress of the Commission on Legal Pluralism took place at the University of Cape Town in September 2011, and celebrated thirty years of the Commission’s role in understanding legal pluralism worldwide. Members have engaged in many debates over what constitutes legal pluralism and how it is to be perceived. From its inception in 1981, in Bellagio, Italy there was heated discussion about what to call law other than state law and how to identify its characteristics. Such debates continue today, and this paper highlights some arenas in which contestations over law and legal pluralism have particular salience. It highlights a number of domains in which the highly mobile and contingent nature of law is revealed, through the ways in which law is spatialized, representing multi-faceted dimensions of legal pluralism that are constantly in the making. Such a vision is at odds with the more traditional views of legal pluralism that are framed in terms of a state centred paradigm

Delivering Justice: The Changing Gendered Dynamics of Land Tenure in Botswana

This article argues for the important role of social networks in legal pluralism contexts, and in doing so for the importance of moving beyond abstract assertions about law and legal processes. It is based on an in-depth study (2009–2010) of women’s access to and control over land in Botswana, within a legal pluralist context where the state is highly heterogeneous and where customary and statutory law administer land through varying institutions that derive their power from a constellation of sources. The article shows that a much higher proportion of women now gain formal customary land titles and certificates than was the case 25 years ago. This overall reflects that access to land is no longer influenced as much by gender as by “class”. The latter represents a constellation of factors that contribute to the accumulation of human, social as well as economic capital. While improvements in women’s access to land are partly owed to changes in land law, the role of Land Boards, and the influence of human rights NGOs, access to land is strongly influenced by social networks and informal transactions. What is crucial are the factors that contribute to the social networks that individuals can draw on, which have an impact on their capacity to negotiate poverty and access to justice in both formal and informal domains. Legal pluralism within this context reflects mutually constitutive processes that draw on and intersect with the social dimensions of everyday life. These insights ought to have an important bearing on the strategies of international development agencies’ focus on the linkages between poverty reduction, access to justice and property rights.

Re-envisioning the local: spatiality, land and law in Botswana

Based on an ethnographic study located in Botswana, I move beyond conceptions of the local as physically or territorially grounded to one that examines how it is constituted through links between persons and land derived from life histories extended over several generations. This not only takes account of a specific site in which social relations are bounded and locally constituted but also of how perceptions of locality are discursively and historically constructed. Viewing land as both a tangible and intangible universe constructed through social relationships, I highlight ways in which individuals, as part of a ‘local’ community, find their life courses shaped by wider transnational and global processes, including law, that have an impact on their everyday lives. For some, this provides opportunities for upward mobility and future gains, while others find scope for action severely curtailed. In documenting these uneven, diverse effects of globalisation, what emerges are processes of ‘internalisation’ and ‘relocalisation’ of global conditions, allowing for the emergence of new identities, alliances and struggles for space and power within specific populations. Thus what exists in the here and now as a form of temporality is constantly remade, drawing on the past while fashioning new prospects for the future. In recent decades attention has focused on transnational relations and transnational laws and the plural legal constellations that they embody. 1 These highlight complex constellations of relations that traverse national, regional and international domains in ebbs and flows, coming together to create spaces for action at different moments in time. They encompass a diverse range of actors, including transnational corporations, corporate executives, non-governmental organisations and religious movements, as well as refugees, asylum seekers and undocumented migrants whose existence is often precarious due to their illegal status in their host country. In these processes of

Doing Ethnography: Living Law, Life Histories, and Narratives from Botswana

The power of narrative in constituting social relations is one that has been acknowledged by a number of disciplines, including law.1 Narrative endorses a multiplicity of forms from a diverse range of sources. But regardless of the form they are given, a key issue is always the basis upon which narratives are accorded recognition, or conversely, denied legitimacy. A second focal question asks how they are situated with respect to other narratives and the types of authority that they command.2 My chapter focuses on narrative, in terms of life histories, from a village in Botswana, in southern Africa. It does so in order to provide an account of law that is based on people’s experiences in daily life in that village, Molepolole. This perspective is one that provides a counterpoint to the type of legal analysis that is associated with legal centralism or formalism.

Moijabana rocks-Pilikwe pots: The acceleration of clay formation by potters employing simple mechanical means

Throughout the history of potting in Botswana, from about CE200 to the present, potters have used a variety of clays. Alluvial clays are favored by most potters today, but petrographic analyses show that prehistoric potters preferred primary clays directly derived from granite and basalt. Fortunately, a few potters in the region today still use granite-derived clays. We trace the processes by which potters of Pilikwe village mine weathered granite from a source at Moijabana and transform it through a series of crushing, pounding, sifting, and wetting actions into a paste that can be used the following day to form pots. These mechanical operations accelerate natural rock weathering processes that form clays and in a single day achieve what in nature takes thousands of years. Successive stages of clay collection and processing were observed, recorded, and filmed; samples from each stage were subsequently analyzed by thin-section optical petrography. Fabrics of pots made from this processed clay were analyzed by identical means and compared with the raw materials.

Embodied histories: exploring law's temporality in relation to land in Botswana

This paper addresses the temporalities of law in the context of everyday lives and peoples access to and control over land in Botswana. Based on the life histories of two family groups, the Makokwes and the Radipatis, over several generations, it demonstrates how individuals’ access to resources alters and reconfigures in tune with household and family cycles across space and time, leading to varying life trajectories. These trajectories demonstrate how these related families come to experience different life worlds that have an impact on their access to and control over land. Such life histories are important because they foreground the ways in which what is happening in the present links back to the past and points forward to the future, in ways that undermine any notion of a unilinear development or concept of progress. They also highlight how life courses in the present have emerged from complex, past histories that have a bearing on their potential for future development. This produces very different experiences of temporality for individuals and families linked into the networks of which they form part. Such an approach reveals the temporalities of geometries of power and social relations, in which law plays an important role. These processes that are constantly in the making highlight the politically charged dynamics of time, space and place that provide both the limits and potential for action through multi-layered domains giving rise to differing understandings about the regulation of land in Botswana today.

Children's Confidentiality at the Crossroad: Challenges for the Scottish Children's Hearing System

This article analyses the role played by panel members in the Scottish Childrens Hearings System. In particular, the article focuses on the ways in which panel members attempts to involve children in the decision‐making process by seeking their views. Section 46 of Part II of the Children (Scotland) Act 1995 comes in for particular attention in this regard as it empowers panel members to clear the room in order to speak privately with the child. Based on interviews with 40 panel members, the article considers the use of discretion in relation to confidentiality and the general level of confidence in current policy given that the section, as currently drafted, requires disclosure to excluded parties of the substance of what has been said in their absence. The authors outline various ways in which panel members negotiate the interpretation of ‘substance’ and reveal significant areas of discomfort relating to their current practice and examine the Scottish Executives proposals for reform.