Adultery Redefined: Changing Decisions of Equity in Customary Law as “Living Law” in Botswana

Abstract

Adultery judgments in customary courts in Botswana reflect changing everyday practices and normative understandings both with regard to marriage and broader ideas of gender equality. These changed perceptions parallel a worldwide shift in the legal understanding of adultery from being a crime to a civil offense and then, more recently, a non offense. Social change movements and judicial reforms responsive to both regional and international gender and judicial activism have arguably influenced recent judgments in the Botswana High Court regarding adultery. Although the country's customary courts continue to recognize adultery as an offense (known as “breaking the yard”), they too follow customary law as “living law”; that is, they are responsive to considerations of equity and quotidian practices that parallel wider ideologically critical movements, and historical processes of judicial innovation and legal reform elsewhere.