The Tswana polity and ‘Tswana law and custom’ reconsidered

Abstract

In some important recent work on the governmental arrangements to which formerly autonomous local groups have been subjected in colonial and post-colonial Africa, there is a strong emphasis upon discontinuity with the pre-colonial past. It is argued that what we now regard as 'customary law' or 'traditional African law' is something of very recent origin, even an express 'invention'. I An assumption is also made that these inventions have an ideological character in the sense that they present a picture of the world that is misleading, masking from some the real state of affairs and operating to secure the framework of colonial or post-colonial domination. This work provides a valuable antidote to earlier, sentimental discussions which stressed continuity and the survival of indigenous traditions; accounts which presented customary law as operating to secure order in an egalitarian context. Further, the notion of 'invention' restores unequivocally a concept of agency, thus moving away from discussions of ideology which treat the human subject as a helpless prisoner of larger forces, simply the 'bearer' of structure. However, despite these gains, there remains a danger that the new picture will be just as simplistic as the ones it seeks to replace. In postulating the 'invention' of customary law, and according it an ideological character, a vision of order and continuity can give way too abruptly to one of domination and rupture. The idea of an 'invented' tradition suggests some manipulation of the cognitive/ normative domain, put to specific use in the business of rule; but the vision of total novelty, which 'invention' suggests, seems an extreme case at one end of a whole range of possibilities. We can, of course, choose to see customary law as an entirely recent construction, having no authentic links with the pre-colonial past. But equally we could imagine an existing repertoire modified in such a way as to reflect or benefit the project of colonial rule. Again, we could envisage ancient forms being given an artificially protracted life, with a detrimental, constraining effect upon the ruled. The credibility of these different possibilities can only be tested in a specific ethnographic situation, viewed against what can be recovered of some real, pre-colonial past. The case chosen here is that of the Tswana. It is in