This article examines the challenges that the digitalisation of agriculture in Africa brings with respect to ownership and control of data from the perspective of African indigenous farmers as data originators. It discusses the phenomena of the data revolution and digital agriculture in Africa, mapping out the ecosystem of digital agriculture by identifying general trends, key players, types and features of digitalisation driven by the capabilities of mobile and network infrastructure as well as by higher-level digitisation supported by data infrastructures capability. By situating farm data as a constitutive element of traditional knowledge of agricultural production that is subjected to datafication, the article outlines the challenges of access to data and of unequal utilisation of data as having an impact on development imperatives that necessitate better control of data flows. It proposes data justice as a conceptual framework for an Africa-wide governance of farm data in which the challenges on access to data and unfairness in its utilisation are addressed in a manner consistent with the continent’s aspirations for intra-regional relations
{"title":"Embracing the Data Revolution for Development: A Data Justice Framework for Farm Data in the Context of African Indigenous Farmers","authors":"T. Dagne","doi":"10.31273/LGD.2019.2502","DOIUrl":"https://doi.org/10.31273/LGD.2019.2502","url":null,"abstract":"This article examines the challenges that the digitalisation of agriculture in Africa brings with respect to ownership and control of data from the perspective of African indigenous farmers as data originators. It discusses the phenomena of the data revolution and digital agriculture in Africa, mapping out the ecosystem of digital agriculture by identifying general trends, key players, types and features of digitalisation driven by the capabilities of mobile and network infrastructure as well as by higher-level digitisation supported by data infrastructures capability. By situating farm data as a constitutive element of traditional knowledge of agricultural production that is subjected to datafication, the article outlines the challenges of access to data and of unequal utilisation of data as having an impact on development imperatives that necessitate better control of data flows. It proposes data justice as a conceptual framework for an Africa-wide governance of farm data in which the challenges on access to data and unfairness in its utilisation are addressed in a manner consistent with the continent’s aspirations for intra-regional relations","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125243398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the reasoning of Canadian Supreme Court justices in the area of Aboriginal treaty rights, paying particular attention to the Grassy Narrows (2014) decision. By not only engaging with the internal logics contained within treaty rights decisions, but also by further contextualizing the decisions and comparing them to the transcripts of their respective hearings, it provides an additional perspective on the socio‐cultural relations of power inscribed within the legal field. Ultimately, the article demonstrates that members of the Supreme Court have displayed a consistent orientation towards logics predicated upon the absorption and elimination of Indigenous legal perspectives. In fact, what a reading of the hearing transcripts together with the Grassy Narrows decision reveals is a judicial privileging of established property interests and extractive impulses underpinning the settler‐colonial development of the Canadian state.
{"title":"Eviscerating Historic Treaties: Judicial Reasoning, Settler Colonialism, and ‘Legal’ Exercises of Exclusion","authors":"M. Mccrossan","doi":"10.1111/jols.12131","DOIUrl":"https://doi.org/10.1111/jols.12131","url":null,"abstract":"This article examines the reasoning of Canadian Supreme Court justices in the area of Aboriginal treaty rights, paying particular attention to the Grassy Narrows (2014) decision. By not only engaging with the internal logics contained within treaty rights decisions, but also by further contextualizing the decisions and comparing them to the transcripts of their respective hearings, it provides an additional perspective on the socio‐cultural relations of power inscribed within the legal field. Ultimately, the article demonstrates that members of the Supreme Court have displayed a consistent orientation towards logics predicated upon the absorption and elimination of Indigenous legal perspectives. In fact, what a reading of the hearing transcripts together with the Grassy Narrows decision reveals is a judicial privileging of established property interests and extractive impulses underpinning the settler‐colonial development of the Canadian state.","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128593766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2007, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples and the United Nations Framework Convention on Climate Change (UNFCCC) endorsed the Bali Action Plan to pay for reductions in tropical deforestation. While many saw these initiatives as complementary, others considered the Bali Action Plan a threat to indigenous peoples’ rights. This paper reviews the history of efforts to protect indigenous rights and to pay for conserving forests and analyzes how they might be competing or complementary strategies. It then presents country experiences that show indigenous peoples have achieved tangible political benefits in many countries and internationally by using their leverage over and participation in Reducing Emissions from Deforestation and Degradation Plus (REDD+) negotiations. Nevertheless, these experiences also show that insisting on preconditions for REDD+ national performance payments may have inadvertently harmed indigenous peoples by contributing to delays in implementation. Today, the movements for indigenous rights and for slowing deforestation are inextricably entwined. Whereas critics fear implementation of REDD+ will harm indigenous peoples, it is the failure of REDD+ programs to influence national action to slow deforestation which represents the greater risk. In this way, the two movements face a common challenge to refocus attention on the national policies and actions that must change to protect both indigenous rights and tropical forests.
{"title":"Competing or Complementary Strategies? Protecting Indigenous Rights and Paying to Conserve Forests","authors":"W. Savedoff","doi":"10.2139/ssrn.3310462","DOIUrl":"https://doi.org/10.2139/ssrn.3310462","url":null,"abstract":"In 2007, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples and the United Nations Framework Convention on Climate Change (UNFCCC) endorsed the Bali Action Plan to pay for reductions in tropical deforestation. While many saw these initiatives as complementary, others considered the Bali Action Plan a threat to indigenous peoples’ rights. This paper reviews the history of efforts to protect indigenous rights and to pay for conserving forests and analyzes how they might be competing or complementary strategies. It then presents country experiences that show indigenous peoples have achieved tangible political benefits in many countries and internationally by using their leverage over and participation in Reducing Emissions from Deforestation and Degradation Plus (REDD+) negotiations. Nevertheless, these experiences also show that insisting on preconditions for REDD+ national performance payments may have inadvertently harmed indigenous peoples by contributing to delays in implementation. Today, the movements for indigenous rights and for slowing deforestation are inextricably entwined. Whereas critics fear implementation of REDD+ will harm indigenous peoples, it is the failure of REDD+ programs to influence national action to slow deforestation which represents the greater risk. In this way, the two movements face a common challenge to refocus attention on the national policies and actions that must change to protect both indigenous rights and tropical forests.","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125653914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The global financial crisis of 2008 proved that a sovereign of last resort would always rescue the financial system from self‐destruction. In constitutional democracies, stability and change are balanced through constitutional devices and procedures. In global finance's realm, on the contrary, no room is left for a dialectic between stability and change. The question of how power is distributed within the financial system is not only intrinsically connected with the analysis of its legal functioning but is also a necessary premise for addressing the issue of reform before the next, and perhaps fatal, 'catastrophe moment'. States might thus recognize that to be treated as sovereigns only when it fits with the immediate needs of the global finance is not a good deal. Nor is it to renounce ex ante whichever reform that could avert a global crisis without threatening the elasticity of the law that governs the financial system.
{"title":"Financial Markets and Societal Constitutionalism","authors":"C. Pinelli","doi":"10.1111/jols.12110","DOIUrl":"https://doi.org/10.1111/jols.12110","url":null,"abstract":"The global financial crisis of 2008 proved that a sovereign of last resort would always rescue the financial system from self‐destruction. In constitutional democracies, stability and change are balanced through constitutional devices and procedures. In global finance's realm, on the contrary, no room is left for a dialectic between stability and change. The question of how power is distributed within the financial system is not only intrinsically connected with the analysis of its legal functioning but is also a necessary premise for addressing the issue of reform before the next, and perhaps fatal, 'catastrophe moment'. States might thus recognize that to be treated as sovereigns only when it fits with the immediate needs of the global finance is not a good deal. Nor is it to renounce ex ante whichever reform that could avert a global crisis without threatening the elasticity of the law that governs the financial system.","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124283938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This declaration was filed before the U.S. District Court for the Southern District of New York in case Civ. No. 17-0062 (Ovaherero and Nama peoples et al. v. Germany). Based on archival research, the declaration provides estimates of the financial benefits of Germany derived from the suppression of the Ovaherero and Nama, and specifically from the confiscations of property belonging to the indigenous population as well as their subjection to forced labor during and after the 1904 genocide. Further, the declaration argues that the respective actions of Germany violated international law at the time. When the Germans arrived in what is today Namibia, they did not find a terra nullius that could have been occupied, but entered into treaty relationships with the indigenous tribes exercising sovereign control over their territories at the time. Moreover, at the turn of the 20th century, international law knew a minimum standard of humane treatment, which the German government violated by its acts before, during and after the 1904 uprising.
{"title":"The Ovaherero and Nama Peoples v. Germany - Declaration of Matthias Goldmann before the SDNY Court","authors":"Matthias Goldmann","doi":"10.2139/SSRN.3169852","DOIUrl":"https://doi.org/10.2139/SSRN.3169852","url":null,"abstract":"This declaration was filed before the U.S. District Court for the Southern District of New York in case Civ. No. 17-0062 (Ovaherero and Nama peoples et al. v. Germany). Based on archival research, the declaration provides estimates of the financial benefits of Germany derived from the suppression of the Ovaherero and Nama, and specifically from the confiscations of property belonging to the indigenous population as well as their subjection to forced labor during and after the 1904 genocide. Further, the declaration argues that the respective actions of Germany violated international law at the time. When the Germans arrived in what is today Namibia, they did not find a terra nullius that could have been occupied, but entered into treaty relationships with the indigenous tribes exercising sovereign control over their territories at the time. Moreover, at the turn of the 20th century, international law knew a minimum standard of humane treatment, which the German government violated by its acts before, during and after the 1904 uprising.","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130113040","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper utilises the Chevron/Ecuador dispute as a case study in order to examine the relationship between the 'rights' and obligations of three interested groups: indigenous (Lago Agrio) people, the nation-state (Ecuador) and the foreign investor (Chevron/Texaco). The case offers particular insight in that it demonstrates how investment arbitration frames the rights of these groups, arising from a foreign investor's oil operations on a local indigenous community. The focus of this paper is to analyse whether the international investment dispute was framed in such a way that attempts to reconcile legally embedded indigenous protections (both at the international and domestic level) and foreign investment protections and offers reasons, if not framed in such a manner, why this is may be the case.
{"title":"Are Investor and Indigenous Protections Competing or Coordinating?: The Framing of Rights of Chevron, Ecuador and the Lago Agrio People","authors":"K. Dickson-Smith","doi":"10.2139/SSRN.2944498","DOIUrl":"https://doi.org/10.2139/SSRN.2944498","url":null,"abstract":"This paper utilises the Chevron/Ecuador dispute as a case study in order to examine the relationship between the 'rights' and obligations of three interested groups: indigenous (Lago Agrio) people, the nation-state (Ecuador) and the foreign investor (Chevron/Texaco). The case offers particular insight in that it demonstrates how investment arbitration frames the rights of these groups, arising from a foreign investor's oil operations on a local indigenous community. The focus of this paper is to analyse whether the international investment dispute was framed in such a way that attempts to reconcile legally embedded indigenous protections (both at the international and domestic level) and foreign investment protections and offers reasons, if not framed in such a manner, why this is may be the case.","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123574302","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Australian Government has put considerable effort into the uptake of township leases in Aboriginal communities in the Northern Territory, a reform introduced in 2006. It argues that the leases have the potential to transform the economic environment of Aboriginal communities. This article explores the true relationship between township leases and economic development. It draws on empirical research and a set of newly-developed concepts – the leasehold spectrum, an occupier-driven approach, a landowner-driven approach – to explain the particular way in which township leases alter the economic circumstances of communities. Contrary to what is often suggested, for the most part township leases implement a landowner-driven rather than occupier-driven approach. This has consequences not just for how development occurs, but also for who benefits from developments. Until now, those consequences have not been debated in public forums. Similar issues arise in other Indigenous communities around Australia. The article reframes discussion about land reform in Indigenous communities so that these important issues can be given more careful thought.
{"title":"Township Leases and Economic Development in Northern Territory Aboriginal Communities","authors":"L. Terrill","doi":"10.2139/SSRN.2993903","DOIUrl":"https://doi.org/10.2139/SSRN.2993903","url":null,"abstract":"The Australian Government has put considerable effort into the uptake of township leases in Aboriginal communities in the Northern Territory, a reform introduced in 2006. It argues that the leases have the potential to transform the economic environment of Aboriginal communities. This article explores the true relationship between township leases and economic development. It draws on empirical research and a set of newly-developed concepts – the leasehold spectrum, an occupier-driven approach, a landowner-driven approach – to explain the particular way in which township leases alter the economic circumstances of communities. Contrary to what is often suggested, for the most part township leases implement a landowner-driven rather than occupier-driven approach. This has consequences not just for how development occurs, but also for who benefits from developments. Until now, those consequences have not been debated in public forums. Similar issues arise in other Indigenous communities around Australia. The article reframes discussion about land reform in Indigenous communities so that these important issues can be given more careful thought.","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121238814","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-11-30DOI: 10.4337/9781783478446.00026
Margaret A. Young
States can reduce global greenhouse gas emissions through trade measures such as energy subsidies, labelling or certification requirements or tax adjustments. These measures modify production or consumption behaviour without regard to territorial borders. Yet territory is a significant concept for international efforts at climate change mitigation: the UNFCCC Paris Agreement, for example, relies on nationally determined contributions in the context of common but differentiated responsibilities. Moreover, public international law doctrine on extraterritorial jurisdiction may be said to require a ‘territorial nexus’ between the object of the trade measure and the state imposing the measure. Should the state concentrate on activities within its borders rather than shifting the burden of climate change mitigation to other countries through trade measures? The issue of historical responsibilities for climate change becomes even more fraught if the adverse effects of trade measures are felt disproportionately by indigenous peoples and other marginalised communities within states. This chapter reviews trade law and other jurisprudence and argues that trade measures addressing climate change are unlikely to enliven — let alone violate — public international law rules on extraterritorial jurisdiction. In the alternative, it argues that if a nexus is required, it is relatively easy to satisfy. Neither of these findings, however, dispose of the issue of the lack of parity between and within states with respect to historic contributions to the cause of climate change and vulnerabilities to its impacts. This chapter thus demonstrates the importance of an understanding of how territory — and jurisdiction — operate in the context of trade measures to address climate change, and how this understanding points to a need to be aware of the status and conditions of people within the territory of affected trading partners.
{"title":"Trade Measures to Address Climate Change: Territory and Extraterritoriality","authors":"Margaret A. Young","doi":"10.4337/9781783478446.00026","DOIUrl":"https://doi.org/10.4337/9781783478446.00026","url":null,"abstract":"States can reduce global greenhouse gas emissions through trade measures such as energy subsidies, labelling or certification requirements or tax adjustments. These measures modify production or consumption behaviour without regard to territorial borders. Yet territory is a significant concept for international efforts at climate change mitigation: the UNFCCC Paris Agreement, for example, relies on nationally determined contributions in the context of common but differentiated responsibilities. Moreover, public international law doctrine on extraterritorial jurisdiction may be said to require a ‘territorial nexus’ between the object of the trade measure and the state imposing the measure. Should the state concentrate on activities within its borders rather than shifting the burden of climate change mitigation to other countries through trade measures? The issue of historical responsibilities for climate change becomes even more fraught if the adverse effects of trade measures are felt disproportionately by indigenous peoples and other marginalised communities within states. This chapter reviews trade law and other jurisprudence and argues that trade measures addressing climate change are unlikely to enliven — let alone violate — public international law rules on extraterritorial jurisdiction. In the alternative, it argues that if a nexus is required, it is relatively easy to satisfy. Neither of these findings, however, dispose of the issue of the lack of parity between and within states with respect to historic contributions to the cause of climate change and vulnerabilities to its impacts. This chapter thus demonstrates the importance of an understanding of how territory — and jurisdiction — operate in the context of trade measures to address climate change, and how this understanding points to a need to be aware of the status and conditions of people within the territory of affected trading partners.","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121248461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Arguments for constitutional reform to recognise Rangatiratanga and Tikanga Maori.
支持宪法改革以承认Rangatiratanga和Tikanga毛利人的争论。
{"title":"Legitimising the State: Constitutional Reform to Recognise Rangatiratanga and Tikanga Maori","authors":"C. Charters","doi":"10.2139/SSRN.2864101","DOIUrl":"https://doi.org/10.2139/SSRN.2864101","url":null,"abstract":"Arguments for constitutional reform to recognise Rangatiratanga and Tikanga Maori.","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115684691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-18DOI: 10.17159/1996-2096/2016/V16N1A7
Christa Rautenbach
Given the striking commonalities between the legal systems of South Africa and Botswana, both in terms of its common and customary law, and considering the propensity of the Botswana courts to engage with South African case law, a recent case of Botswana is of particular interest. In September 2013 in the Ramantele case, the Botswana Court of Appeal ruled on a customary law dispute that had been drawn out for more than seven years. The litigation history reads like a jurisprudential chronicle and demonstrates how traditional justice operates on various levels in a pluralistic justice system, and is a perfect example of legal pluralism in action. The case is interesting for a variety of reasons. First, it considers important principles regarding the meaning, status and ascertainment of customary law. Second, it discusses the influence of the Constitution on customary law and, third, it deals with the very important question as to the application of the Botswana Constitution on customary law. Lastly, it reflects on the role of the judiciary in solving customary disputes which, according to Lesetedi JA, is limited to the interpretation of 'the law to be applied in the dispute' and not to 'traverse issues that do not directly arise ... however important they may be'. In light of the fact that the Botswana legal system follows the principle of stare decisis and the fact that courts engage with the judgments of other jurisdictions, this case has the potential to influence the outcome of future cases of a similar nature. Against this background, this contribution investigates the contrasting approaches to constitutional adjudication in the context of customary law in the Botswana High Court and Court of Appeal, especially with reference to the approach followed by the South African Constitutional Court in the BHE case.
{"title":"A Family Home, Five Sisters and the Rule of Ultimogeniture: Comparing Notes on Judicial Approaches to Customary Law in South Africa and Botswana","authors":"Christa Rautenbach","doi":"10.17159/1996-2096/2016/V16N1A7","DOIUrl":"https://doi.org/10.17159/1996-2096/2016/V16N1A7","url":null,"abstract":"Given the striking commonalities between the legal systems of South Africa and Botswana, both in terms of its common and customary law, and considering the propensity of the Botswana courts to engage with South African case law, a recent case of Botswana is of particular interest. In September 2013 in the Ramantele case, the Botswana Court of Appeal ruled on a customary law dispute that had been drawn out for more than seven years. The litigation history reads like a jurisprudential chronicle and demonstrates how traditional justice operates on various levels in a pluralistic justice system, and is a perfect example of legal pluralism in action. The case is interesting for a variety of reasons. First, it considers important principles regarding the meaning, status and ascertainment of customary law. Second, it discusses the influence of the Constitution on customary law and, third, it deals with the very important question as to the application of the Botswana Constitution on customary law. Lastly, it reflects on the role of the judiciary in solving customary disputes which, according to Lesetedi JA, is limited to the interpretation of 'the law to be applied in the dispute' and not to 'traverse issues that do not directly arise ... however important they may be'. In light of the fact that the Botswana legal system follows the principle of stare decisis and the fact that courts engage with the judgments of other jurisdictions, this case has the potential to influence the outcome of future cases of a similar nature. Against this background, this contribution investigates the contrasting approaches to constitutional adjudication in the context of customary law in the Botswana High Court and Court of Appeal, especially with reference to the approach followed by the South African Constitutional Court in the BHE case.","PeriodicalId":280811,"journal":{"name":"Indigenous Nations & Peoples Law eJournal","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132559590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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