Prior to 1969 the legal system of Botswana enjoyed the characteristics of the dual existence of customary and common law (and the courts in which they were administered) typical of most of Anglophone Africa. The common or general law was the Roman-Dutch law “received” from the Colony of the Cape of Good Hope and this was the only law to be applied in the ordinary courts (High Court and Subordinate Courts) in the exercise of their original jurisdiction. Customary law was the preserve of the customary courts. Three main questions were inherent in the working of this system:

(1) How was it to be determined which system of law (and, therefore, which system of courts) was appropriate for deciding a particular case?

(2) If it was decided that customary law was to be applied, which system of customary law was appropriate?

(3) Again, if customary law was to be applied, how were its rules to be ascertained in the courts?

The Customary Law (Application and Ascertainment) Act of 1969 appended to this article, introduced far-reaching changes in the administration of the dual legal system and in particular contained for the first time statutory answers to the questions posed above.

When the Commission on the Law of Marriage and Divorce in Kenya presented its Report in 1968, the basic scheme of its proposals, and the draft Bill it had prepared for the reform and integration of the laws, were widely welcomed and it has been a disappointment to many—not least, it may be supposed, to the members of the Commission—that four years have passed without those proposals having been translated into statutory form in Kenya. It is a little ironic, though no doubt an interesting example of East African inter-dependence, that the essential basis of those proposals, and indeed in many respects the detailed draft provisions which accompanied them, have now been given their first legislative effect not in Kenya but in Tanzania.