A/HRC/15/37/Add.2 Under sections 77–79 of the Constitution of 1966, eight chiefs from each of the eight major Tswana tribes — the Bamangwato, Batawana, Bakgatla, Bakwena, Bangwaketse, Bamalete, Barolong and Batlokwa — were guaranteed a seat on the House of Chiefs, while representatives of the numerous other, non-dominant tribes competed for the remaining seven seats in elections for the then 15-member body. Further, the Chieftainship Act of 1933 defined “chief” and “tribe” by reference to the eight dominant Tswana tribes only. 11. The Constitution was amended in 2007 to revise the composition of the House of Chiefs, now known as the Ntlo ya Dikgosi. Additionally, after the Botswana High Court declared the Chieftainship Act unconstitutional for its discriminatory characteristics,2 that act was repealed and replaced by the Bogosi Act of 2008, which established a more tribally neutral framework for recognition of tribes, tribal areas and their respective chiefs. While the Government has expressed to the Special Rapporteur its position that the constitutional amendments, together with the Bogosi Act, now afford equal treatment to all tribes and ensure equitable representation, the Special Rapporteur remains concerned with some aspects of these reforms, a matter which is addressed in section IV (B) below. 12. Other laws still recognize Tswana tribes and tribal structures, without similar recognition of the smaller tribes and their respective political and social structures. For example, the Tribal Territories Act of 1968, which still provides part of the legal framework for indigenous land rights in Botswana (see paragraphs 40–44 below), names tribal territories after the major Tswana tribes. This legislation also named the Tswana chiefs as the custodians of these territories, though it did not confer ownership rights. 13. Tribal customary law, primarily based on oral tradition, has been incorporated into the legal framework of Botswana since independence. Under the Customary Law Act, tribal customary law is valid to the extent that it “is not incompatible with provisions of any written law or contrary to morality, humanity or natural justice”. Customary law is administered by all courts of Botswana, when applicable, in cases involving tribal members, including by customary courts operating under the authority of chiefs or headmen. These customary courts derive their authority from oral tradition as well as from the Customary Courts Act. Customary courts have been developed in connection with the kgotla system, which is a system for handling matters of concern to the tribe through community meetings, and which is based on Tswana custom. 14. Botswana is party to a number of United Nations treaties and to the African Charter on Human and Peoples’ Rights. Furthermore, it voted in favour of adopting the United Nations Declaration on the Rights of Indigenous Peoples. Botswana is not a party to the International Labour Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169), although the Government expressed to the Special Rapporteur that it supports the general principles and objectives of the Convention. C. The application of the United Nations Declaration on the Rights of Indigenous Peoples 15. In voting in favour of the Declaration, the Government of Botswana has manifested its support for the Declaration’s call for affirmative and concerted measures to address the disadvantaged conditions of indigenous peoples in accordance with the human rights principles elaborated upon in that instrument. At the same time, the Government takes the position, as reiterated to the Special Rapporteur, that all people of Botswana — with the exception of some naturalized citizens — are indigenous to the country. However, the 2 6 See Kamanakao I and Others v. The Attorney General & Another [2001] 2 B.L.R. 654. GE.10-13968