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Friday, 19 April 2024

Prejudice against Customary Law

Opinions

DANIEL ORUFHENG


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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Opinions

IEC Disrespects Batswana: A Critical Analysis

10th November 2023

The Independent Electoral Commission (IEC) has recently faced significant criticism for its handling of the voter registration exercise. In this prose I aim to shed light on the various instances where the IEC has demonstrated a lack of respect towards the citizens of Botswana, leading to a loss of credibility. By examining the postponements of the registration exercise and the IEC’s failure to communicate effectively, it becomes evident that the institution has disregarded its core mandate and the importance of its role in ensuring fair and transparent elections.

Incompetence or Disrespect?

One possible explanation for the IEC’s behavior is sheer incompetence. It is alarming to consider that the leadership of such a critical institution may lack the understanding of the importance of their mandate. The failure to communicate the reasons for the postponements in a timely manner raises questions about their ability to handle their responsibilities effectively. Furthermore, if the issue lies with government processes, it calls into question whether the IEC has the courage to stand up to the country’s leadership.

Another possibility is that the IEC lacks respect for its core clients, the voters of Botswana. Respect for stakeholders is crucial in building trust, and clear communication is a key component of this. The IEC’s failure to communicate accurate and complete information, despite having access to it, has fueled speculation and mistrust. Additionally, the IEC’s disregard for engaging with political parties, such as the Umbrella for Democratic Change (UDC), further highlights this disrespect. By ignoring the UDC’s request to observe the registration process, the IEC demonstrates a lack of regard for its partners in the electoral exercise.

Rebuilding Trust and Credibility:

While allegations of political interference and security services involvement cannot be ignored, the IEC has a greater responsibility to ensure its own credibility. The institution did manage to refute claims by the DISS Director that the IEC database had been compromised, which is a positive step towards rebuilding trust. However, this remains a small glimmer of hope in the midst of the IEC’s overall disregard for the citizens of Botswana.

To regain the trust of Batswana, the IEC must prioritize respect for its stakeholders. Clear and timely communication is essential in this process. By engaging with political parties and addressing their concerns, the IEC can demonstrate a commitment to transparency and fairness. It is crucial for the IEC to recognize that its credibility is directly linked to the trust it garners from the voters.

Conclusion:

The IEC’s recent actions have raised serious concerns about its credibility and respect for the citizens of Botswana. Whether due to incompetence or a lack of respect for stakeholders, the IEC’s failure to communicate effectively and handle its responsibilities has damaged its reputation. To regain trust and maintain relevance, the IEC must prioritize clear and timely communication, engage with political parties, and demonstrate a commitment to transparency and fairness. Only by respecting the voters of Botswana can the IEC fulfill its crucial role in ensuring free and fair elections.

 

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Opinions

Fuelling Change: The Evolving Dynamics of the Oil and Gas Industry

4th April 2023

The Oil and Gas industry has undergone several significant developments and changes over the last few years. Understanding these developments and trends is crucial towards better appreciating how to navigate the engagement in this space, whether directly in the energy space or in associated value chain roles such as financing.

Here, we explore some of the most notable global events and trends and the potential impact or bearing they have on the local and global market.

Governments and companies around the world have been increasingly focused on transitioning towards renewable energy sources such as solar and wind power. This shift is motivated by concerns about climate change and the need to reduce greenhouse gas emissions. Africa, including Botswana, is part of these discussions, as we work to collectively ensure a greener and more sustainable future. Indeed, this is now a greater priority the world over. It aligns closely with the increase in Environmental, Social, and Governance (ESG) investing being observed. ESG investing has become increasingly popular, and many investors are now looking for companies that are focused on sustainability and reducing their carbon footprint. This trend could have significant implications for the oil and fuel industry, which is often viewed as environmentally unsustainable. Relatedly and equally key are the evolving government policies. Government policies and regulations related to the Oil and Gas industry are likely to continue evolving with discussions including incentives for renewable energy and potentially imposing stricter regulations on emissions.

The COVID-19 pandemic has also played a strong role. Over the last two years, the pandemic had a profound impact on the Oil and Gas industry (and fuel generally), leading to a significant drop in demand as travel and economic activity slowed down. As a result, oil prices plummeted, with crude oil prices briefly turning negative in April 2020. Most economies have now vaccinated their populations and are in recovery mode, and with the recovery of the economies, there has been recovery of oil prices; however, the pace and sustainability of recovery continues to be dependent on factors such as emergence of new variants of the virus.

This period, which saw increased digital transformation on the whole, also saw accelerated and increased investment in technology. The Oil and Gas industry is expected to continue investing in new digital technologies to increase efficiency and reduce costs. This also means a necessary understanding and subsequent action to address the impacts from the rise of electric vehicles. The growing popularity of electric vehicles is expected to reduce demand for traditional gasoline-powered cars. This has, in turn, had an impact on the demand for oil.

Last but not least, geopolitical tensions have played a tremendous role. Geopolitical tensions between major oil-producing countries can and has impacted the supply of oil and fuel. Ongoing tensions in the Middle East and between the US and Russia could have an impact on global oil prices further, and we must be mindful of this.

On the home front in Botswana, all these discussions are relevant and the subject of discussion in many corporate and even public sector boardrooms. Stanbic Bank Botswana continues to take a lead in supporting the Oil and Gas industry in its current state and as it evolves and navigates these dynamics. This is through providing financing to support Oil and Gas companies’ operations, including investments in new technologies. The Bank offers risk management services to help oil and gas companies to manage risks associated with price fluctuations, supply chain disruptions and regulatory changes. This includes offering hedging products and providing advice on risk management strategies.

Advisory and support for sustainability initiatives that the industry undertakes is also key to ensuring that, as companies navigate complex market conditions, they are more empowered to make informed business decisions. It is important to work with Oil and Gas companies to develop and implement sustainability strategies, such as reducing emissions and increasing the use of renewable energy. This is key to how partners such as Stanbic Bank work to support the sector.

Last but not least, Stanbic Bank stands firmly in support of Botswana’s drive in the development of the sector with the view to attain better fuel security and reduce dependence risk on imported fuel. This is crucial towards ensuring a stronger, stabler market, and a core aspect to how we can play a role in helping drive Botswana’s growth.  Continued understanding, learning, and sustainable action are what will help ensure the Oil and Gas sector is supported towards positive, sustainable and impactful growth in a manner that brings social, environmental and economic benefit.

Loago Tshomane is Manager, Client Coverage, Corporate and Investment Banking (CIB), Stanbic Bank Botswana

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Opinions

Brands are important

27th March 2023

So, the conclusion is brands are important. I start by concluding because one hopes this is a foregone conclusion given the furore that erupts over a botched brand. If a fast food chef bungles a food order, there’d be possibly some isolated complaint thrown. However, if the same company’s marketing expert or agency cooks up a tasteless brand there is a country-wide outcry. Why?  Perhaps this is because brands affect us more deeply than we care to understand or admit. The fact that the uproar might be equal parts of schadenfreude, black twitter-esque criticism and, disappointment does not take away from the decibel of concern raised.

A good place to start our understanding of a brand is naturally by defining what a brand is. Marty Neumier, the genius who authored The Brand Gap, offers this instructive definition – “A brand is a person’s gut feel about a product or service”. In other words, a brand is not what the company says it is. It is what the people feel it is. It is the sum total of what it means to them. Brands are perceptions. So, brands are defined by individuals not companies. But brands are owned by companies not individuals. Brands are crafted in privacy but consumed publicly. Brands are communal. Granted, you say. But that doesn’t still explain why everybody and their pet dog feel entitled to jump in feet first into a brand slug-fest armed with a hot opinion. True. But consider the following truism.

 

Brands are living. They act as milestones in our past. They are signposts of our identity. Beacons of our triumphs. Indexes of our consumption. Most importantly, they have invaded our very words and world view. Try going for just 24 hours without mentioning a single brand name. Quite difficult, right? Because they live among us they have become one of us. And we have therefore built ‘brand bonds’ with them. For example, iPhone owners gather here. You love your iPhone. It goes everywhere. You turn to it in moments of joy and when we need a quick mood boost. Notice how that ‘relationship’ started with desire as you longingly gazed upon it in a glossy brochure. That quickly progressed to asking other people what they thought about it. Followed by the zero moment of truth were you committed and voted your approval through a purchase. Does that sound like a romantic relationship timeline. You bet it does. Because it is. When we conduct brand workshops we run the Brand Loyalty ™ exercise wherein we test people’s loyalty to their favourite brand(s). The results are always quite intriguing. Most people are willing to pay a 40% premium over the standard price for ‘their’ brand. They simply won’t easily ‘breakup’ with it. Doing so can cause brand ‘heart ache’. There is strong brand elasticity for loved brands.

 

Now that we know brands are communal and endeared, then companies armed with this knowledge, must exercise caution and practise reverence when approaching the subject of rebranding. It’s fragile. The question marketers ought to ask themselves before gleefully jumping into the hot rebranding cauldron is – Do we go for an Evolution (partial rebrand) or a Revolution(full rebrand)? An evolution is incremental. It introduces small but significant changes or additions to the existing visual brand. Here, think of the subtle changes you’ve seen in financial or FMCG brands over the decades. Evolution allows you to redirect the brand without alienating its horde of faithful followers. As humans we love the familiar and certain. Change scares us. Especially if we’ve not been privy to the important but probably blinkered ‘strategy sessions’ ongoing behind the scenes. Revolutions are often messy. They are often hard reset about-turns aiming for a total new look and ‘feel’.

 

 

Hard rebranding is risky business. History is littered with the agony of brands large and small who felt the heat of public disfavour. In January 2009, PepsiCo rebranded the Tropicana. When the newly designed package hit the shelves, consumers were not having it. The New York Times reports that ‘some of the commenting described the new packaging as ‘ugly’ ‘stupid’. They wanted their old one back that showed a ripe orange with a straw in it. Sales dipped 20%. PepsiCo reverted to the old logo and packaging within a month. In 2006 Mastercard had to backtrack away from it’s new logo after public criticism, as did Leeds United, and the clothing brand Gap. AdAge magazine reports that critics most common sentiment about the Gap logo was that it looked like something a child had created using a clip-art gallery. Botswana is no different. University of Botswana had to retreat into the comfort of the known and accepted heritage strong brand.  Sir Ketumile Masire Teaching Hospital was badgered with complaints till it ‘adjusted’ its logo.

 

 

So if the landscape of rebranding is so treacherous then whey take the risk? Companies need to soberly assess they need for a rebrand. According to the fellows at Ignyte Branding a rebrand is ignited by the following admissions :

Our brand name no longer reflects our company’s vision.
We’re embarrassed to hand out our business cards.

Our competitive advantage is vague or poorly articulated.
Our brand has lost focus and become too complex to understand. Our business model or strategy has changed.
Our business has outgrown its current brand.
We’re undergoing or recently underwent a merger or acquisition. Our business has moved or expanded its geographic reach.
We need to disassociate our brand from a negative image.
We’re struggling to raise our prices and increase our profit margins. We want to expand our influence and connect to new audiences. We’re not attracting top talent for the positions we need to fill. All the above are good reasons to rebrand.

The downside to this debacle is that companies genuinely needing to rebrand might be hesitant or delay it altogether. The silver lining I guess is that marketing often mocked for its charlatans, is briefly transformed from being the Archilles heel into Thanos’ glove in an instant.

So what does a company need to do to safely navigate the rebranding terrain? Companies need to interrogate their brand purpose thoroughly. Not what they think they stand for but what they authentically represent when seen through the lens of their team members. In our Brand Workshop we use a number of tools to tease out the compelling brand truth. This section always draws amusing insights. Unfailingly, the top management (CEO & CFO)always has a vastly different picture of their brand to the rest of their ExCo and middle management, as do they to the customer-facing officer. We have only come across one company that had good internal alignment. Needless to say that brand is doing superbly well.

There is need a for brand strategies to guide the brand. One observes that most brands ‘make a plan’ as they go along. Little or no deliberate position on Brand audit, Customer research, Brand positioning and purpose, Architecture, Messaging, Naming, Tagline, Brand Training and may more. A brand strategy distils why your business exists beyond making money – its ‘why’. It defines what makes your brand what it is, what differentiates it from the competition and how you want your customers to perceive it. Lacking a brand strategy disadvantages the company in that it appears soul-less and lacking in personality. Naturally, people do not like to hang around humans with nothing to say. A brand strategy understands the value proposition. People don’t buy nails for the nails sake. They buy nails to hammer into the wall to hang pictures of their loved ones. People don’t buy make up because of its several hues and shades. Make up is self-expression. Understanding this arms a brand with an iron clad clad strategy on the brand battlefield.

But perhaps you’ve done the important research and strategy work. It’s still possible to bungle the final look and feel.  A few years ago one large brand had an extensive strategy done. Hopes were high for a top tier brand reveal. The eventual proposed brand was lack-lustre. I distinctly remember, being tasked as local agency to ‘land’ the brand and we outright refused. We could see this was a disaster of epic proportions begging to happen. The brand consultants were summoned to revise the logo. After a several tweaks and compromises the brand landed. It currently exists as one of the country’s largest brands. Getting the logo and visual look right is important. But how does one know if they are on the right path? Using the simile of a brand being a person – The answer is how do you know your outfit is right? It must serve a function, be the right fit and cut, it must be coordinated and lastly it must say something about you. So it is possible to bath in a luxurious bath gel, apply exotic lotion, be facebeat and still somehow wear a faux pas outfit. Avoid that.

Another suggestion is to do the obvious. Pre-test the logo and its look and feel on a cross section of your existing and prospective audience. There are tools to do this. Their feedback can save you money, time and pain. Additionally one must do another obvious check – use Google Image to verify the visual outcome and plain Google search to verify the name. These are so obvious they are hopefully for gone conclusions. But for the brands that have gone ahead without them, I hope you have not concluded your brand journeys as there is a world of opportunity waiting to be unlocked with the right brand strategy key.

Cliff Mada is Head of ArmourGetOn Brand Consultancy, based in Gaborone and Cape Town.

cliff@armourgeton.com

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