Any law reform project in Botswana must take account of the fact that Botswana is a dual legal system (the common law exists side by side with customary law). In practice, the majority of Batswana are subject to customary law. Customary law courts administer about 80% of cases in the country excluding those resolved by mechanisms not formally recognised under the Customary Courts Act.
While customary law is said to reflect customs, culture and the way of life of particular tribes, it is also true that it may contain and or tolerate practices, which are antithetical to human rights including the rights of PLWHA. These include such practices as domination of women by men, inheritance principles that favour male children etc.
From a legal point of view, customary law is inferior and subject to other sources of law in the country. The definition of customary law includes only those “rules of law which by custom are applicable to any particular tribe or tribal community in Botswana”, but exclude those rules, which are inconsistent with provision of any enactment. Similarly customary rules that are “contrary to morality, humanity and natural justice are excluded from qualifying as customary law. The Chieftainship Act for its part provides that customary law must not be “injurious to the welfare of members or repugnant to the constitution and or any other enactment.” The general presumption in Botswana as regards the applicable law is that the common law is applicable unless the relevant personal law, agreement, or intention suggests the application of customary law.