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Prejudice against Customary Law


A close reading of the Customary Courts Act of Botswana, furnishes the Act, as a result not of concerted bargaining between the patrons of the customary law and the imposter patrons of Botswana’s non-native laws. 

So that the conclusion was inescapable that Botswana’s customary law Act (CLA) was in fact a representation of (non-native) civil and criminal law, prescribing to customary law, not customary law prescribing its native jurisdictional properties and rules of conduct to the non-native civil and criminal law aspects of Botswana. One was native in legal tradition and subordinate to the other. The other was founded on non-native legal tradition and was the superior to the other. This represented the first prejudice against customary law.  

Because of the aforementioned imposter properties of the Act, textured and flavored by non-native legal decrees of dominance over native law, the Act has shamelessly defined customary law as the “customary law of a tribe/tribal community, so far as such law was not or is not incompatible with the provisions of any written law or so far as such law was not contrary to morality, humanity or natural justice.”

This added conjecture constitutes in the writers opinion, the second property of prejudice against customary law for reasons we shall share with the reader shortly. The third and final prejudice against customary law, and which was also ‘the’ most discreditable ingredient concerning it was that in terms of the Act, the term: “Laws of Botswana” referenced or concerned only common law and statute law from time to time in force in Botswana, but it does not include customary law”.

For each of the above claimed prejudices, there was happily an alternative antidote to pursue. Against the first, was the open option and alternative to recognize the sovereignty and ancientological properties of customary law.  Against the second, was the alternative to have let custodians and patrons of customary law outline its purposes, content and processes, than to be content to legally decree that its substantive properties were deserving conjecture upon an external conquering legal tradition. Against the third prejudice, was the open option and alternative to have quite simply honorably included customary law as part of the “laws of Botswana”.

The property of conjecturing the admissibility and applicability of Tswana tribal law to Tswana communities on its agreeability and compatibility “with provisions of any written law”, being in this case, non-native written law, was highly prejudicial. Was the un-coded and oral character of customary law, a sufficient and needful force which removed from the law, its substantive and procedural properties?  Why then was the admissibility of the native unwritten law weighed against provisions of the written non-native versions?  The continued conjecture that such native law was law only in so far as it was not incompatible with morality, begs the question: “incompatible with whose morality?”

Tswana customary law was founded on Tswana morals and Tswana intellect and Tswana opinion and Tswana taste. Which other morals (opinion, taste, and intellect) need they be compatible with before they could become “law of Botswana?”  The author finds this a very clear case of needless subjugation and torment of people and their laws by an out of season, legal mythology.

Customary law pre-exists the “law of Botswana” which law, has within it every law except that which was Tswana in origin and purpose! Its sovereignty has been diminished, but not terminated. Her very recent history and experience of torment and turmoil and oppression and attempted subjugation and economic deprivation, should inspire her (not be anaesthetized against inspiration) to assert her rights and her identity. And “she” (as native law and her patrons; the chiefs) was due to re-build her tribal court systems with edifying (than with un-edified) legal provisions, so that she may resurrect achieve a sense of self-rule within her tribal legal systems.   

The forced dependency of customary law and of its patrons on the “laws of Botswana” (and its patrons) as provisioned in the Customary Court Act has not been successful in replenishing the social and cultural fabric that could/should support vibrant and healthy tribal communities and families. Some of the unforeseen and unforeseeable opportunities this dependency has caused Batswana to forgo have been the potential virtual elimination of tribal unemployment and it has been sustained therewith.  

It was amply written by persons of much greater wisdom than mine before this day that the successes of self-determination were not solely economic but it has also enabled investment in award-winning efforts to replenish native/tribal languages use, which was an important cultural signal of cultural independence in a politically independent sovereign.  But because native self rule or tribal legal sovereignty was initially not pursued, the forgone economic, social and tribal successes of it were largely unknown, although not unknowable by the governments of the day.

The power of tribal territories and of the tribal communities within the sovereign republic of Botswana to govern commerce and nature affairs on their reservations and on their places of tribal jurisdiction has been a point of attack so much that much of the ongoing opinion of nations favors continuity of limits to tribal power/customary law power. This was sustained against the backdrop of the fact that tribes have historically and are contemporarily world customary forces, and today they exist merely as potential economic engines, for the greater all.

Why was it that even against the background of subjugation, tribes and the customary law order, continue to remain substantial in influence of tribal communities and as objects and subjects of tribal honor? It lives on, albeit with limited sovereignty. The answer it seems lies that the roots of customary law/tribal laws pre-exists its “jailers”. It was also testament to its non-time based commission by HE who initially founded tribes among men and established patrons among men as leaders and enforcers of such native law to provide guidance to the tribes on the rightful use and rightful self-governance.

Customary law order was not merely sought, through this and other previously written appeals for it to gain recognition in modern law, but it was critical for a shift in attitude from it merely being a quest for its commensurate legality, to a quest for government to begin to see it as the life blood of tribes. Its institutions and practices were self-sufficient to act as key levers, like they did, before, to provide protection and promotion of community interests and the well being of the tribal subjects.  The experiment to run Botswana’s tribal communities without this lever, the social, cultural and economic viability of Botswana’s tribal communities and identities has remained untenable, and it shall remain so over the long run, if the present discourse was sustained.   

For this and other possible reasons, customary law required sovereignty and surety of continued existence. To do this there was need to extend it’s de jure recognition by the ultimate sovereign with de facto power to impose its will, which was more or less presently being pulled toward and away from doing so.

D.T. ORUFHENG (B.A. Pol. Sci.(University of Botswana) & Diploma in Philosophy, History, Jurisprudence and Economics of Liberty (Cato University))

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Botswana to Become a Vaccinated Nation: Pandemic Anxiety Over?

30th March 2021


This is a question that should seriously exercise the mind of every Botswana citizen and every science researcher, every health worker and every political leader political.

The Covid-19 currently defines our lives and poses a direct threat to every aspect and every part of national safety, security and general well-being. This disease has become a normative part of human life throughout the world.

The first part of the struggle against the murderous depredation of this disease was to protect personal life through restrictive health injunctions and protocols; the worst possibly being human isolation and masks that hid our sorrows and lamentations through thin veils. We suffered that humiliation with grace and I believe as a nation we did a great job.

Now the vaccines are here, ushering us into the second phase of this war against the plague; and we are asking ourselves, is this science-driven fight against Covid-19 spell the end of pandemic anxiety? Is the health nightmare coming to an end? What happy lives lie ahead? Is this the time for celebration or caution? As the Non State Actors, we have being struggling with these questions for months.

We have published our thoughts and feelings, and our research reviews and thorough reading of both the local and international impacts of this rampaging viral invasion in local newspapers and social media platforms.

More significantly, we have successfully organised workshops about the impact of the pandemic on society and the economy and the last workshop invited a panel of health experts, professionals, and public administers to advance this social dialogue as part of our commitment to the tripartite engagement we enjoy working with Government of Botswana, Civil Society and Development partners. These workshops are virtual and open to all Batswana, foreign diplomatic missions based in Gaborone, UN agencies located in Gaborone and international academic researchers and professional health experts and specialists.

The mark of Covid-19 on our nation is a painful one, a tragedy shared by the entire human race, but still a contextually painful experience. Our response is fraught with grave difficulties; limited resources, limited time, and the urgency to not only save lives but also avert economic ruin and a bleak future for all who survive. Several vaccines are already in the  market.

Parts of the world are already doing the best they can to trunk the pestilential march of this disease by rolling out mass-vaccinations campaigns that promise to evict this health menace and nightmare from their public lives. Botswana, like much of Africa, is still up in the disreputable, and, unenviable, preventative social melee of masked interactions, metered distances, contactless commerce.

We remain very much at the mercy of a marauding virus that daily runs amuck with earth shattering implications for the economy and human lives. And the battle against both infections and transmissions is proving to be difficult, in terms of finance, institutional capacities and resource mobilization. How are we prepared as government, and as citizens, to embrace the impending mass-vaccinations? What are the chances of us  succeeding at this last-ditch effort to defeat the virus? What are the most pressing obstacles?

Does the work of vaccines spell an end to the pandemic anxieties?

Our panellists addressed the current state of mass-vaccination preparedness at the Botswana national level. What resources are available? What are the financial, institutional and administrative operational challenges (costs and supply chains, delivery, distribution, administering the vaccine on time, surveillance and security of vaccines?) What is being done to overcome them, or what can be done to overcome them? What do public assessments of preparedness tell us at the local community levels? How strong is the political will and direction? How long can we expect the whole exercise to last? At what point should we start seeing tangible results of the mass-vaccination campaign?

They also addressed the challenges of the anticipated emerging Vaccinated Society. How to fight the myths of vaccines and the superstitions about histories of human immunizations? What exactly is being done to grow robust local confidence in the science of vaccinations and the vaccines themselves? More significantly, how to square these campaigns vis-vis personal rights, moral/religious obligations?

What messages are being sent out in these regards and how are Batswana responding? What about issues of justice and equality? Will we get the necessary vaccines to everyone who wants them? What is being done to ensure no deserving person is left behind?

They also addressed issues of health data. To accomplish this mass-vaccination campaign and do everything right we need accurate and complete data. Poor data already makes it very hard to just cope with the disease. What is being done to improve data for the mass-vaccination campaign? How is this data being collected, aggregated and prepared for real life situation/applications throughout Botswana in the coming campaign?

We know in America, for example, general reporting and treatment of health data at the beginning of vaccinations was so poor, so chaotic and so scattered mainstream newspapers like The Atlantic, Washington Post and the New York Times had to step in, working very closely with civil society organizations, to rescue the situation. What data-related issues are still problematic in Botswana?

To be specific, what kind of Covid-19 data is being taken now to ready the whole country for an effective and efficient mass-vaccination program?

Batswana must be made aware that the  end part of vaccination will just mark the beginning of a long journey to health recovery and national redemption; that in many ways Covid-19 vaccination is just another step toward the many efforts in abeyance to fight this health pandemic, the road ahead is still long and painful.

For this purpose, and to highlight the significance of this observation we tasked our panellists with  the arduous imperative of  analysing the impact of mass-vaccination on society and the economy alongside the pressing issues of post-Covid-19 national health surveillance and rehabilitation programs.

Research suggests the aftermath of Covid-19 vaccination is going to be just as difficult and uncertain world as the present reality in many ways, and that caution should prevail over celebration, at least for a long time. The disease itself is projected to linger around for some time after all these mass-vaccination campaigns unless an effort is made to vaccinate everyone to the last reported case, every nation succeeds beyond herd immunity, and cure is found for Covid-19 disease. Many people are going to continue in need of medications, psychological and psychiatric services and therapy.

Is Botswana ready for this long holdout? If not, what path should we take going into the future? The Second concern is , are we going to have a single, trusted national agency charged with the  mandate to set standards for our national health data system, now that we know how real bad pandemics can be, and the value of data in quickly responding to them and mitigating impact? Finally, what is being done to curate a short history of this pandemic? A national museum of health and medicine or a Public Health Institute  in Botswana is overdue.

If we are to create strong sets of data policies and data quality standards for fighting future health pandemics it is critical that they find ideological and moral foundations in the artistic imagery and photography of the present human experience…context is essential to fighting such diseases, and to be prepared we must learn from every tragic health incident.

Our panellists answered most of these questions with distinguished intellectual clarity. We wish Batswana to join us in our second Mass-vaccination workshop.

*Oscar Motsumi:

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The women you see in the news matter. Here’s why

9th March 2021
Jane Godia

Jane Godia

Today is International Women’s Day – it’s a moment to think about how much better our news diet could be if inequities were eliminated. In 1995, when the curtains fell in one of the largest meetings that have ever brought women together to discuss women in development, it was noted that women and media remain key to development.

Twenty-six years later, the relevant “Article J” of the Beijing Platform for Action, remains unfulfilled. Its two strategic objectives with regard to Women and Media have not been met. They are
Increase the participation and access of women to expression and decision-making in and through the media and new technologies of communication

Promote a balanced and non-stereotyped portrayal of women in the media.

Today, as we mark International Women’s Day, it’s an indictment on both media owners and civil society that women remain on the periphery of news-making. They cannot claim equal space in either the structures of newsrooms or in the content produced, be that as sources of news or as the subjects of reports. Indeed, the latest figures from WAN-IFRA’s Women in News Programme show just one in five voices in news belong to women*, be they as sources, as the author or as the main character of the news report.

Some progress was evident several years back, with stand-out women being named as chief executive officers, editors in chief, managing editors and executive editors. But these gains appear short lived in most media organisations. Excitement has turned to frustration as one-step forward has been replaced with three steps backwards. In Africa, the problem is acute. The decision-making tables of media organisations remain deprived of women and where there are women, they are surrounded by men.

Few women have followed in the footsteps of Esther Kamweru, the first woman managing editor in Kenya, and indeed sub-Saharan Africa. Today’s standout women editors include Pamela Makotsi-Sittoni (Nation Media Group, Kenya), Barbara Kaija (New Vision, Uganda), Mary Mbewe (Daily Nation, Zambia), Margaret Vuchiri (The Monitor, Uganda), Joyce Shebe (Clouds, Tanzania), Tryphinah Dongwana (Weekend Post, Botswana), Joyce Mhaville (Independent Television -ITV, Tanzania) and Tuma Abdallah (Standard Newspapers,Tanzania). But they remain an exception.

The lack of balance between women and men at the table of decision making has a rollback effect on the content that is produced. A table dominated by men typically makes decisions that benefit men.

So today, International Women’s Day is a grim reminder that things are not rosy in the news business. Achieving gender balance in news and in the structure of media organisations remains a challenge. Unmet, it sees more than half of the population in our countries suffer the consequences of bias, discrimination and sexism.

The business of ignoring the other half of the population can no longer be treated as normal. It’s time that media leaders grasp the challenge, not only because it is the right thing to do, but because it also makes a whole lot of business sense: start covering women, give them space and a voice in news-making and propel them to all levels of decision making within your organisation.

We can no longer afford to imagine that it’s only men who make and sell the news and bring in the shillings to fund the media business. Women too are worthy newsmakers. In all of our societies, there are women holding decision making positions and who are now experts in once male-only domains such as engineers, doctors, scientists and researchers.

They can be deliberately picked out to share their perspectives and expertise and bring balance to the profile of experts quoted on our news pages. Media is the prism through which society sees itself and women are an untapped audience. So, as we celebrate International Women’s Day, let us embrace diversity, which yields better news content and business products, and in so doing eliminate sexism. We know that actions and attitudes that discriminate against people based on their gender is bad for business.

As media, the challenge is ours. We need to consciously embrace and reach the commitments made 26 years ago when the Beijing Platform for Action was signed globally. As the news consuming public, you have a role to play too. Hold your news organization to account and make sure they deliver balanced news that reflects the voices of all of society.

Jane Godia is a gender development and media expert who serves as the Africa Director of Women in News programme.  
WOMEN IN NEWS is WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media.

Jane Godia, Director, Africa, Women in News

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Why is the media so afraid to talk about sexual harassment?

9th March 2021


The eve of International Women’s Day presents an opportunity for us to think about gender equality and the long and often frustrating march toward societies that are truly equal.

As media, we are uniquely placed to drive forward this reflection and discussion. But while focusing on the challenges of gender in society, we owe it to our staff and the communities we serve to also take a hard look at the obstacles within our own organisations.

I’m talking specifically about the scourge of sexual harassment. It’s likely to have happened in your newsroom. It has likely happened to a member of your team. It happens to all genders but is disproportionately directed at women. It happens in every industry, regardless of country, culture or context. This is because sexual harassment is driven by power, not sex. Wherever you have imbalances in power, you have individuals who are at risk of sexual harassment, and those who abuse this power.

I’ve been sexually harassed. The many journalists and editors, friends and family members who I have spoken to over the years on this subject have also been harassed. Yet it is still hard for leaders to recognize that this could be happening within their newsrooms and boardrooms. Why does it continue to be such a taboo?

Counting the cost of sexual harassment

Sexual harassment is, simply put, bad for business. It can harm your corporate reputation. It is a drain on the productivity of staff and managers. Maintaining and building trust in your brand is an absolute imperative for media organisations globally. If and when a case gets out of control or is badly handled – this can directly impact your bottom line.

It is for this reason that WAN-IFRA Women in News has put eliminating sexual harassment as a top priority in our work around gender equality in the media sector. This might seem at odds with the current climate where social interactions are fewer and remote work scenarios are in place in many newsrooms and businesses. But one only needs to tune into the news to know that the abuse of power, manifested as verbal, physical or online harassment, is alive and well.

Preliminary results from an ongoing Women in News research study into the issue of sexual harassment polling hundreds of journalists in Sub-Saharan Africa and Southeast Asia indicate that more than 1 in 3 women media professionals have been physically harassed, and just under 50% have been verbally harassed. Just over 15% of men in African newsrooms reported being physically harassed, and slightly less than 1 in 4 reports being verbally harassed. The numbers for male media professionals in Southeast Asia are slightly higher than a quarter on both forms of harassment.

The first step in confronting sexual harassment is to talk about it. We need to strip away the stigma and discomfort around having open conversations about what sexual harassment is and isn’t. Media managers, it is entirely in your power to create dynamics in your own teams that are free from sexual harassment.

Publishers and CEOs, you set the organisational culture in your media company.

By being vocal in recognising that it happens everywhere, and communicating to your employees that you will not tolerate sexual harassment of any kind, you send a powerful message to your teams, and publicly. With these actions, you will help us overcome the legacy of silence around this topic, and in doing so take an important first step to create media environments that truly embrace equality.

Melanie Walker is Executive Director of Media Development of the World Association of News Publishers (WAN-IFRA). She is a creator of Women in News, WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media.

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