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*. Associate attorney, Collins Chilisa Consultants, Botswana; LLM (University of Cambridge); LLB (University of Botswana).
INTRODUCTION
Chieftainship was the cornerstone of Botswana's political life, both before and during the colonial era. Before the establishment of the British Protectorate of Bechuanaland in 1885, the Tswana tribes, like other Sotho peoples, had for centuries enjoyed an elaborate political system which depended on the kgosi [tribal chief] being vested with virtually absolute powers.1Before 1885, however, external pressures did not ultimately prevent internal revolt. It was this that the establishment of the Protectorate achieved by introducing British administrators to supervise the chiefs.2As a matter of expediency, influenced mainly by the financial impossibility of governing directly, the British ruled the Tswana tribes indirectly through their chiefs.3Khama I had actively solicited the vaguely worded protection: the British would promote "peace and order", while the chiefs would retain more or less full sovereignty in internal affairs.4This is reflected in the dispatch to the first assistant commissioner of the Bechuanaland Protectorate. He was "not to interfere with native administration; the chiefs are understood not to be desirous of parting with their rights of sovereignty, nor are Her Majesty's Government by any means anxious to assume the responsibilities of it".5Joseph Chamberlain, colonial secretary in 1895, explained the arrangement he had in mind as one in which the chiefs would rule "much as before" and, at least until 1930, the Protectorate administration largely confined itself to supervising and restricting European activities in the territory.6
This did not however deter the promulgation of an Order-In-Council of 1891, six years after the declaration of the Protectorate. This Order-In-Council was made by the British government acting under the Foreign Jurisdiction Act of 1890.7The Foreign Jurisdiction Acts were passed to regularize the machinery by which the Crown exercised jurisdiction in foreign countries and to subject such jurisdiction to parliamentary control.8The 1891 Order-In-Council authorized the high commissioner to South Africa (based in Cape Town and simultaneously serving as governor of the Cape Colony) to "legislate for Bechuanaland by Proclamation".9It vested in him "all powers and jurisdiction which Her Majesty ... had or may have ... subject to...