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Prejudice against Customary Law

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

Internal party-democracy under pressure

21st June 2022

British novelist, W. Somerset Maugham once opined: “If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too.”

The truism in these words cannot be underestimated, especially when contextualizing against the political developments in Botswana. We have become a nation that does not value democracy, yet nothing represent freedom more than democracy. In fact, we desire, and value winning power or clinging to power more than anything else, even if it harms the democratic credentials of our political institutions. This is happening across political parties — ruling and opposition.

As far as democracy is concerned, we are regressing. We are becoming worse-off than we were in the past. If not arrested, Botswana will lose its status as among few democratic nations in the Africa. Ironically, Botswana was the first country in Africa to embrace democracy, and has held elections every five years without fail since independence.

We were once viewed as the shining example of Africa. Those accolades are not worth it any more. Young democracies such as South Africa, with strong institutions, deserves to be exalted. Botswana has lost faith in democracy, and we will pay a price for it. It is a slippery slope to dictatorship, which will bring among other excess, assault on civil liberties and human rights violations.

Former President, Festus Mogae once stated that Botswana’s democracy will only become authentic, when a different party, other than the Botswana Democratic Party (BDP) wins elections, and when the President of such party is not from Serowe.

Although many may not publicly care to admit, Mogae’s assertion is true. BDP has over the years projected itself as a dyed-in-the-wool proponent of democracy, but the moment its stay in power became threatened and uncertain, it started behaving in a manner that is at variance with democratic values.  This has been happening over the years now, and the situation is getting worse by the day.

Recently, the BDP party leadership has been preaching compromise and consensus candidates for 2024 general elections. Essentially, the leadership has lost faith in the Bulela Ditswe dispensation, which has been used to selected party candidates for council and parliament since 2003. The leadership is discouraging democracy because they believe primary elections threaten party unity. It is a strange assertion indeed.

Bulela Ditswe was an enrichment of internal party democracy in the sense that it replaced the previous method of selection of candidates known as Committee of 18, in which a branch committee made of 18 people endorsed the representatives. While it is true that political contest can divide, the ruling party should be investing in political education and strengthening in its primary elections processes. Democracy does not come cheap or easy, but it is valuable.

Any unity that we desire so much at the expense of democracy is not true unity. Like W. Somerset Maugham said, democracy would be lost in the process, and ultimately, even the unity that was desired would eventually be lost too. Any solution that sacrifice democracy would not bring any results in the long run, except misery.

We have seen that also in opposition ranks. The Umbrella for Democratic Change (UDC) recently indicated that its incumbent Members of Parliament (MPs) should not be challenged for their seats. While BDP is sacrificing democracy to stay in power, UDC is sacrificing democracy to win power. It is a scary reality given the fact that both parties – ruling and opposition — have embraced this position and believe democracy is the hindrance to their political ambitions.

These current reality points to one thing; our political parties have lost faith in democracy. They desire power more than, the purpose of power itself. It is also a crisis of leadership across the political divide, where we have seen dissenting views being met with persecution. We have seen perverting of political process endorsed by those in echelons of power to manipulate political outcomes in their favour.

Democracy should not be optional, it should be mandatory. Any leader proposing curtailing of democracy should be viewed with suspicion, and his adventures should be rejected before it is too late. Members of political parties, as subscribers of democracy, should collectively rise to the occasion to save their democracy from self-interest that is becoming prevalent among Botswana political parties.

The so-called compromise candidates, only benefits the leadership because it creates comforts for them. But for members, and for the nation, it is causing damage by reversing the gains that have been made over the years. We should reject leaders who only preach democracy in word, but are hesitant to practice it.

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Opinions

The Big Deal About Piracy

21st June 2022
piracy

Piracy of all kinds continues to have a massive impact on the global creative industry and the economies of the countries where it thrives.

One of the biggest misconceptions around piracy is that an individual consumer’s piracy activities, especially in a market the size of Botswana’s, is only a drop in the pool of potential losses to the different sectors of the economy piracy affects.

When someone sitting in Gaborone, Botswana logs onto an illegal site to download King Richard online, they don’t imagine that their one download will do anything to the production house’s pocket or make a dent in the actors’ net worth. At best, the sensitivity towards this illegal pirating activity likely only exists when contemplating going about pirating a local musician’s music or a short film produced locally.

The ripple effects of piracy at whatever scale reach far beyond what the average consumer could ever imagine. Figures released by software security and media technology company, Irdeto, show that users in five major African territories made approximately 17,4 million total visits to the top 10 identified piracy sites on the internet.

The economic impact of this on the creative industry alone soars to between 40 and 97.1 billion dollars, according a 2022 Dataprot study. In addition, they estimate that “illegally streamed copyrighted content consumes 24% of global bandwidth”.

As Botswana’s creative industry remains relatively slight on the scale of comparison to industries such as Nollywood and Nilewood where the creative industry contributes a huge proportion to West and East Africa’s respective GDPs, that does not imply that piracy activities in Botswana do not have a similar impact on our economy and the ability of our creative industry to grow.

When individuals make decisions to illegally consume content via internet streaming sites they believe they are saving money for themselves in the name of enjoying content they desire to consume. Although this is a personal choice that remains the prerogative of the consumer, looking beyond the fact that streaming on illegal content sites is piracy, the ripple effect of this decision also has an endless trail of impact where funds which could be used to grow the local creative industry through increased consumption, and revenue which would otherwise be fed back into Botswana’s economy are being diverted.

“Why can’t our local creative industry grow?” “Why don’t we see more home-grown films and shows in Botswana?” are questions constantly posed by those who consume television content in Botswana. The answer to this lies largely in the fact that Botswana’s local content needs an audience in order for it to grow. It needs support from government and entities which are in a position to fund and help the industry scale greater heights.

Any organisational body willing to support and grow the local creative industry needs to exist and operate in an economy which can support its mandates. Content piracy is a cycle that can only be alleviated when consumers make wiser decisions around what they consume and how.

This goes beyond eradicating piracy activities in so far as television content is concerned. This extends to the importation and trade in counterfeit goods, resale of goods and services not intended for resale across the border, outside its jurisdiction, and more. All of these activities stunt the growth of an economy and make it nearly impossible for industries and sectors to propel themselves to places where they can positively impact society and reinvest into the country’s economy.

So what can be done to turn the tide here in Botswana in order to see our local production houses gain the momentum required to produce more, license more and expand their horizons? While those who enforce the law continue to work towards minimizing piracy activities, it’s imperative that as consumers we work to make their efforts easier by being mindful of how our individual actions play a role in preventing the success of our local creative networks and our economy’s growth.

Whether you are pirating a Hollywood Blockbuster, illegally streaming a popular Motswana artist’s music, or smuggling in an illegal decoder to view content restricted to South Africa only, your actions have an impact on how we as a nation will make our mark on the global landscape with local creative productions. Thembi Legwaila is Corporate Affairs Manager, MultiChoice Botswana

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Opinions

Our Strength is our Unity

18th March 2022
Craig-Cloud

Putin Chose War.  We Remain United with Ukraine.

U.S. Ambassador Craig L. Cloud

This is a dangerous moment for Europe and for freedom-loving people around the world.  By launching his brutal assault on the people of Ukraine, Vladimir Putin has also committed an assault on the principles that uphold global peace and democracy.  But the people of Ukraine are resilient.

They’ve had a democracy for decades, and their bravery is inspiring the world.  The United States, together with our Allies and partners across the globe, will continue to support the Ukrainian people as they defend their country.  By choosing to pay for a war instead of investing in the needs of Russians, Putin’s invasion of Ukraine will be a strategic failure for the Kremlin and ravage the future of the Russian people.

When the history of this era is written, it will show that Putin’s choice to launch an unprovoked, unjust, and premeditated attack left the West more unified and Russia exponentially weaker.

United in Our Response

This will not end well for Vladimir Putin.  Together, the United States and our Allies and partners are taking action to hold Russia accountable.  As a result of unprecedented global sanctions coordination, the United States, the United Kingdom, the European Union, Japan, and Canada have removed selected Russian banks from the SWIFT messaging system and imposed restrictive measures on the Russian Central Bank.

President Biden announced sweeping financial sanctions and stringent export controls that will damage Russia’s economy, financial system, and access to cutting-edge technology.  After Putin began his invasion, the ruble hit its weakest point in history, and the Russian stock market plunged.

Along with the United Kingdom and European Union, the United States imposed sanctions on the architects of this war, including Putin himself.

By moving in close coordination with a powerful coalition of Allies and partners representing more than half of the global economy, we have magnified the impact of our actions to impose maximum costs on Putin and his regime.  In response to Putin’s war of choice, we will limit Russia’s ability to do business in U.S. dollars.

We will stunt Russia’s ability to finance and grow its military.  We will impair Russia’s ability to compete in the global economy.  And we are prepared to do more.

In addition to economic penalties, this week President Biden authorized an additional $1 billion over the $350 million of security assistance he recently approved, and a $650 million in 2021, to immediately help Ukraine defend itself, bringing America’s total security assistance to Ukraine over the past year to $2 billion.

We also stand ready to defend our NATO Allies.  President Biden has coordinated with Allied governments to position thousands of additional forces in Germany and Poland as part of our commitment to NATO’s collective defense.

He authorized the deployment of ground and air forces already stationed in Europe to NATO’s eastern and southeastern flanks:  Estonia, Latvia, Lithuania, Poland, and Romania.  Our Allies have also added their own forces and capabilities to ensure our collective defense.  There should be no doubt about the readiness of the greatest military Alliance in the history of the world:  NATO is more united than ever.

The United States has also coordinated with major oil-producing and consuming countries to underscore our common interest in securing global energy supplies.  We are working with energy companies to surge their capacity to supply energy to the market, particularly as prices increase.

Putin’s Unprovoked and Premeditated War

This was an attack that Vladimir Putin has planned for a long time.  He methodically moved more than 150,000 troops and military equipment to Ukraine’s border.  He moved blood supplies into position and built field hospitals, demonstrating his intentions all along.

He rejected every good-faith effort by the United States and our Allies and partners to address his fabricated security concerns and to avoid needless conflict and human suffering by engaging in diplomacy and dialogue.

Putin executed his playbook exactly as we had warned he would do.  We saw Russia’s proxies increase their shelling in the Donbas.  We saw the Russian government launch cyber-operations against Ukraine.  We saw staged political theater in Moscow and heard outlandish and baseless claims made about Ukraine in an attempt to justify Russia’s aggression.

Russia continues to justify its military aggression by falsely claiming the need to stop “genocide” in Ukraine – despite there being no evidence that genocide was occurring there.  We saw Russia use these tactics before when they invaded Ukraine in 2014 and Georgia in 2008.

And then, at almost the very same moment the United Nations Security Council was meeting to stand up for Ukraine’s sovereignty and forestall disaster, Putin launched his invasion in violation of international law.  Missiles began to rain down, striking historic cities across Ukraine.  Then came air raids, columns of tanks, and battalions of troops, all riding a renewed wave of disinformation and outright lies.

We have been transparent with the world.  We declassified our intelligence about Russia’s plans so there could be no confusion and no cover up.  Putin is the aggressor.  Putin chose this war.  And now his people will bear the consequences of his decision to invest in war rather than in them.

Transatlantic Unity and Resolve Stronger Than Ever

Putin’s goal of dividing the West has failed.  In the face of one of the most significant challenges to European security and democratic ideals since World War II, the United States and our Allies and partners have joined together in solidarity.  We have united, coordinating intensively to engage as one with Russia and Ukraine, provided assistance to Ukraine, developed a broad response, and reaffirmed our commitment to NATO.

Putin has failed to divide us.  Putin has failed to undermine our shared belief in the fundamental right of sovereign nations to choose their destiny and their allies.  And Putin will fail to erase the proud nation of Ukraine.

The next few days, weeks, and months will be incredibly difficult for the people of Ukraine.  Putin has unleashed great suffering on them.  But the Ukrainian people have known 30 years of independence, and they have repeatedly shown they will not tolerate anyone who tries to take their country backwards.

The world is watching this conflict closely, and if Russian forces commit atrocities, we will explore all international mechanisms that could be used to bring those responsible – whether members of the military or their civilian leadership – to account.

Putin’s aggression against Ukraine will cost Russia profoundly, both economically and strategically.  The Russian people deserve better from their government than the immense cost to their future that this invasion has precipitated.

Liberty, democracy, and human dignity are forces far more powerful than fear and oppression.  In the contest between democracy and autocracy, between sovereignty and subjugation, make no mistake:  Freedom will prevail.

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