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Who are the real law – makers in society?

KUNGWENGWE STAR CHARLES

Whose interest does this law serve? (PART 1)

On the 31st of December 2008 the Botswana Government hurriedly passed the controversial Media Practitioners Law (Act),a law which journalists fear(ed) has the potential of restricting their DUTIES in the sense that before commencing  work ,journalists are mandated to first obtain the consent of the new Media Council. The latter organ is a Government body which has power to impose fine and, even jail terms!, on journalists who (have) violated ‘standards’ such as failure to register. Strangely, Parliament, on behalf of the electorate, had asked for amendments, and had expected to discuss them in its Committees, for fine-tuning But the Government hastily enacted this media Bill into Law.


The questions to ask then are: Whose law is this and whose interest does it serve?. Who voted for this Bill, in the first instance, and who is Government in this context?: The Executive? Another sickening development is that ,though a relic of the Dark Ages or Early Middle Ages(6th -14th centuries),witchcraft is real in all countries and cultures alike, and this  is a common truth that is universally acknowledged, yet we have the Witchcraft Suppression Act in most jurisdictions(see S.A. Act 3 of 1957) ,an Act that has just been repealed  in  countries like  Zimbabwe  and Zambia and which makes it criminal for one to ‘accuse’ another person of being a witch! Are people really being sincere when making laws?


This writer repeats, for emphasis’ sake, that the above observation leaves everyone CONFUSED regarding the questions: Who really makes the law? and Whose interests does the law serve? Another alternative question is ‘Who determines the Nature and or Content of the Law?  We all along thought the Law iswas a product of people‘s initiative, through their elected representatives, and should therefore be people-centric. But if this were the case why are people usually ignorant or always mourning and grief-stricken concerning the existence of most Laws? Shading crocodile tears, I suppose!


(Note that the setting of this topic is mainly Africa ,though a comparative analysis with countries  drawn from other regions elsewhere will be made whenever necessary .Also note that Africa ,in general ,is neither Communist nor Capitalist  but a compromise of between these two extremes ,that is ,Socialist. Also bear in mind that this LAW in question has a strong bias towards LEGISLATION).


Similarly, we have such pieces of legislation as the infamous Public Order (and Security) Act (P.O.A. and P.O.S.A, respectively) in both Botswana and Zimbabwe and this law criminalizes the so-called violent demonstrations and other similar activities plus gives the police much powers. No doubt, that law is unconstitutional.  Additionally , there is a provision ,awaiting amendment, in the Zimbabwean Criminal Reform and Codification Act  of 2004 that allows a girl of mere 12 years to give consent to sexual intercourse(Section 64) ,a provision that is not only unconstitutional (see section 78 (1)of Zimbabwean Constitution )but contra bonores mores as well.

 

Which people, in their normal senses, would ever subscribe to the crafting of such laws which are not people friendly at all and which negate their culture? How about pieces of legislation which take away the powers of parents ,guardians and teachers ,while acting in loco-parentis, alike, to exercise the right of chastisement over a deviant child in a bid to instil a sense of moral values in(to) him?. And the concept of an all-powerful President? 

 

Lately we have seen the introduction of  Statutory Instrument  64 of 2016 of the same country ,a law that disallows the import of products which are locally available at a time when the economy is on its knees and almost all Zimbabweans are always seen swarming into neighbouring countries, like bees around a flower, to buy cheap items ,particularly clothes, known as mabhero ,to trade back home and eke out a living.

 

Even ,if for argument’s sake ,our constitutions condoned such draconian laws ,it would be a valid comment to assert that the Rule of law is there ,given that the powers- that-be would be drawing their authority from the law , but minus the spirit of Constitutionalism ,of course , that demands that an ideal  Constitution must provide for a minimum standard of human rights. More so ,this is the Natural Law versus Positivist Legal Philosophy.


Surely one does not need a ghost of Shakespearean tragedies to come and announce that the above laws protect the interests of a certain group of people. In the case of Statutory Instrument  64 ,for example, the law protects the businesses  of only a few pot-bellied bourgeoisie ,whose bums are always kissing the hypnotizing seats of luxurious ,State- of –the- art  ,vehicles ,and at the expense of the poor majority. These flawed laws are nothing but just a ‘microcosm of the macrocosm’


In the article entitled’ The Role of the Judges’ (see a copy of the Botswana WeekendPost dated 19 October 2015) Kungwengwe Star Charles  argues that ,contrary to the doctrine of Separation of Powers in which it is the Legislature that has the sovereign power to make ,repeal or amend the law, it is in practice Judges who make that law. They do this through ‘mis’interpreting statutes and therefore end up creating their own law, law never envisaged by Parliament.

 

The other implications are that the law reflects judges’ interests and that Judges use wrong premises (misinterpreted law) and ,on that basis, misjudge cases. In this article, however, this writer has a shift in thought and mostly blames the Executive for usurping these powers. The writer will go out of his way to briefly focus lenses on the Legislative process, which is a series of actions that must be taken before a law is formulated and considered, refined and approved by a competent Government body in order to be valid and have the force of law.


Judges also make law, judge-made law, through the doctrine of stare decisis et non queta movere (precedent) in which judgments on previous cases are binding on subsequent cases in future provided the circumstances are similar. But what really is Law? Though the term is quiet fluid, does not have a universally accepted definition, it can loosely be defined as a set of norms or rules which regulates human conductbehaviour. These rulesorms are ‘uniformly’ applied to all the members of society and are enforced by the State. The State in this context refers to the Executive arm of Government.  


We stretch the above discussion further by commenting that some of the laws we have were simply inherited from our former colonial masters. A classic example is the Public Safety  Act of Botswana .It is imperative to state that the Public Safety Act (Cap 22:03) was enacted by Colonial masters in 1907  through proclamation No 15 of 1907 and was adopted by the Government through legal notice No 84 of 1966 without any modification ,save for the insertion of the name “Botswana’.

 

In exactly the same manner ,was the Law and Order (Maintenance) Act during the ‘protectorate’ days  which has been baptized to   Public Order Act ,adopted through No 6 of 1967.Do these laws bring order or disorder? Most countries which are former colonies of Britain have this colonial legacy in their legislation. Examples are Zambia, Kenya, Zimbabwe, India and Tanzania.


 It is very ironic that these are some of the retrogressive and repressive laws which we were fighting against in the protracted war that culminated in the attainment of both ‘Independence and Majority Rule’, yet we have conveniently borrowed them .(Maybe our current leaders were not opposed to these laws ,per se ,but those who used them ,instead.

 

After all, dictatorship and or centralization of power has(ve) always been  a shade of African societies’ politics even before the advent of Whites: The KingChief made the law ,interpreted and enforced it. In addition ,he was the supreme religious leader and ‘Commander-in-chief’ of the Army and ,as is the case in the present day, Legal instruments of these powers have come from the Leader himself and his inner circle disciples. Swaziland is a living example of this arrangement).But so wasis the case with all other societies in the world .Others have since evolved from this political arrangement but Africa seems static in this regard).


The same comment also holds true for our so –called Common Law ,Roman –Dutch Law ,which we ‘ received’(from Europe via South Africa) in almost all African Countries, or was it super-imposed upon us?, in complexu (in its entirety) save for the fact that the slight variations are products of subsequent legislation and judicial precedent. In fact the Common Law  or uniform thread in African Countries ,as I see it , is Customary Law and not this  Uncommon Law.

 

Even the 1966 Constitution of Gaborone was prepared and given to us in its ready-made form by the British in London . This is also the case with  the Zimbabwean  Lancaster House Constitution of 1979  .The  allochtonous or exotic document represented the interests of the former colonial power and hence the inclusion of  provisions which protected them. See the Lancaster House document on the Right to Private Property and Willing –Buyer – Willing- Seller Basis clauses.


Upon the attainment of both ‘Independence and Majority Rule’, the new governments had to retain those laws which entrenched the sitting regime ‘s power ,as we have just seen, and amended their Constitutions and other Laws  in order to give the leadership lots of power. Sadly, people were not consulted at all.

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Opinions

Elected officials should guard against personal interest

23rd September 2020

Parliament was this week once again seized with matters that concern them and borders on conflict of interest and abuse of privilege.

The two matters are; review of MPs benefits as well as President Mokgweetsi Masisi’s participation in the bidding for Banyana Farms. For the latter, it should not come as a surprise that President Masisi succeeded in bid.

The President’s business interests have also been in the forefront. While President Masisi is entitled as a citizen to participate in a various businesses in the country or abroad, it is morally deficient for him to participate in a bidding process that is handled by the government he leads. By the virtue of his presidency, Masisi is the head of government and head of State.

Not long ago, former President Festus Mogae suggested that elected officials should consider using blind trust to manage their business interests once they are elected to public office. Though blind trusts are expensive, they are the best way of ensuring confidence in those that serve in public office.

A blind trust is a trust established by the owner (or trustor) giving another party (the trustee) full control of the trust. Blind trusts are often established in situations where individuals want to avoid conflicts of interest between their employment and investments.

The trustee has full discretion over the assets and investments while being charged with managing the assets and any income generated in the trust.

The trustor can terminate the trust, but otherwise exercises no control over the actions taken within the trust and receives no reports from the trustees while the blind trust is in force.

Botswana Democratic Party (BDP) Secretary General, Mpho Balopi, has defended President Masisi’s participation in business and in the Banyana Farms bidding. His contention is that, the practise even obtained during the administration of previous presidents.

The President is the most influential figure in the country. His role is representative and he enjoys a plethora of privileges. He is not an ordinary citizen. The President should therefore be mindful of this fact.

We should as a nation continue to thrive for improvement of our laws with the viewing of enhancing good governance. We should accept perpetuation of certain practices on the bases that they are a norm. MPs are custodians of good governance and they should measure up to the demands of their responsibility.

Parliament should not be spared for its role in countenancing these developments. Parliament is charged with the mandate of making laws and providing oversight, but for them to make laws that are meant solely for their benefits as MPs is unethical and from a governance point of view, wrong.

There have been debates in parliament, some dating from past years, about the benefits of MPs including pension benefits. It is of course self-serving for MPs to be deliberating on their compensation and other benefits.

In the past, we have also contended that MPs are not the right people to discuss their own compensation and there has to be Special Committee set for the purpose. This is a practice in advanced democracies.

By suggesting this, we are not suggesting that MP benefits are in anyway lucrative, but we are saying, an independent body may figure out the best way of handling such issues, and even offer MPs better benefits.

In the United Kingdom for example; since 2009 following a scandal relating to abuse of office, set-up Independent Parliamentary Standards Authority (IPSA)

IPSA is responsible for: setting the level of and paying MPs’ annual salaries; paying the salaries of MPs’ staff; drawing up, reviewing, and administering an MP’s allowance scheme; providing MPs with publicly available and information relating to taxation issues; and determining the procedures for investigations and complaints relating to MPs.

Owing to what has happened in the Parliament of Botswana recently, we now need to have a way of limiting what MPs can do especially when it comes to laws that concern them. We cannot be too trusting as a nation.

MPs can abuse office for their own agendas. There is need to act swiftly to deal with the inherent conflict of interest that arise as a result of our legislative setup. A voice of reason should emerge from Parliament to address this unpleasant situation. This cannot be business as usual.

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Opinions

The Corona Coronation (Part 10)

9th July 2020

Ever heard of a 666-type beast known as Fort Detrick?

Located in the US state of Maryland, about 80 km removed from Washington DC, Fort Detrick houses the US army’s top virus research laboratory. It has been identified as “home to the US Army Medical Research and Materiel Command, with its bio-defense agency, the US Army Medical Research Institute of Infectious Diseases, and  also hosts the National Cancer Institute-Frederick and the National Interagency Confederation for Biological Research and National Interagency Biodefense Campus”.

The 490-hectare campus researches the world’s deadliest pathogens, including Anthrax (in 1944, the Roosevelt administration ordered 1 million anthrax bombs from Fort Detrick), Ebola, smallpox, and … you guessed right: coronaviruses.  The facility, which carries out paid research projects for government agencies (including the CIA), universities and drug companies most of whom owned by the highly sinister military-industrial complex, employs 900 people.

Between 1945 and 1969, the sprawling complex (which has since become the US’s ”bio-defence centre” to put it mildly) was the hub of the US biological weapons programme. It was at Fort Detrick that Project MK Ultra, a top-secret CIA quest to subject   the human mind to routine robotic manipulation, a monstrosity the CIA openly owned up to in a congressional inquisition in 1975, was carried out.  In the consequent experiments, the guinea pigs comprised not only of people of the forgotten corner of America – inmates, prostitutes and the homeless but also prisoners of war and even regular US servicemen.

These unwitting participants underwent up to a 20-year-long ordeal of barbarous experiments involving psychoactive drugs (such as LSD), forced electroshocks, physical and sexual abuses, as well as a myriad of other torments. The experiments not only violated international law, but also the CIA’s own charter which forbids domestic activities. Over 180 doctors and researchers took part in these horrendous experiments and this in a country which touts itself as the most civilised on the globe!

Was the coronavirus actually manufactured at Fort Detrick (like HIV as I shall demonstrate at the appropriate time) and simply tactfully patented to other equally cacodemonic places such as the Wuhan Institute of Virology in China?

THE FORT DETRICK SCIENTISTS’ PROPHECY WAS WELL-INFORMED

 

About two years before the term novel coronavirus became a familiar feature in day-to-day banter, two scientist cryptically served advance warning of its imminence. They were Allison Totura and Sina Bavari, both researchers at Fort Detrick.

The two scientists talked of “novel highly pathogenic coronaviruses that may emerge from animal reservoir hosts”, adding, “These coronaviruses may have the potential to cause devastating pandemics due to unique features in virus biology including rapid viral replication, broad host range, cross-species transmission, person-to-person transmission, and lack of herd immunity in human populations  Associated with novel respiratory syndromes, they move from person-to-person via close contact and can result in high morbidity and mortality caused by the progression to acute respiratory distress syndrome (ARDS).”

All the above constitute some of the documented attributes and characteristics of the virus presently on the loose – the propagator of Covid-19. A recent clinical review of Covid-19 in The Economist seemed to bear out this prognostication when it said, “It is ARDS that sees people rushed to intensive-care units and put on ventilators”. As if sounding forth a veritable prophecy, the two scientists besought governments to start working on counter-measures there and then that could be “effective against such a virus”.

Well, it was not by sheer happenstance that Tortura and Bavari turned out to have been so incredibly and ominously prescient. They had it on good authority, having witnessed at ringside what the virus was capable of in the context of their own laboratory.  The gory scenario they painted for us came not from secondary sources but from the proverbial horse’s mouth folks.

CDC’S RECKLESS ADMISSION

In March this year, Robert Redfield, the US  Director for the Centre for Disease Control and Prevention (CDC),  told the House of Representatives’ Oversight Committee that it had transpired that some members of the American populace  who were certified as having died of influenza  turned out to have harboured the novel coronavirus per posthumous analysis of their tissue.

Redfield was not pressed to elaborate but the message was loud and clear – Covid-19 had been doing the rounds in the US much earlier than it was generally supposed and that the extent to which it was mistaken for flu was by far much more commonplace than was openly admitted. An outspoken Chinese diplomat, Zhao Lijian, seized on this rather casual revelation and insisted that the US disclose further information, exercise transparency on coronavirus cases and provide an explanation to the public.

But that was not all the beef Zhao had with the US. He further charged that the coronavirus was possibly transplanted to China by the US: whether inadvertently or by deliberate design he did not say.  Zhao pointed to the Military World Games of October 2019, in which US army representatives took part, as the context in which the coronavirus irrupted into China. Did the allegation ring hollow or there was a ring of truth to it?

THE BENASSIE FACTOR

The Military World Games, an Olympic-style spectrum of competitive action, are held every four years. The 2019 episode took place in Wuhan, China. The 7th such, the games ran from October 18 to October 27.  The US contingent comprised of 17 teams of over 280 athletes, plus an innumerable other staff members. Altogether, over 9000 athletes from 110 countries were on hand to showcase their athletic mettle in more than 27 sports. All NATO countries were present, with Africa on its part represented by 30 countries who included Botswana, Egypt, Kenya, Zambia, and Zimbabwe.

Besides the singular number of participants, the event notched up a whole array of firsts. One report spelt them out thus: “The first time the games were staged outside of military bases, the first time the games were all held in the same city, the first time an Athletes’ Village was constructed, the first time TV and VR systems were powered by 5G telecom technology, and the first use of all-round volunteer services for each delegation.”

Now, here is the clincher: the location of the guest house for the US team was located in the immediate neighbourhood of the Wuhan Seafood Market, the place the Chinese authorities to this day contend was the diffusion point of the coronavirus. But there is more: according to some reports, the person who allegedly but unwittingly transmitted the virus to the people milling about the market – Patient Zero of Covid-19 – was one Maatie Benassie.

Benassie, 52, is a security officer of Sergeant First Class rank at the Fort Belvoir military base in Virginia and took part in the 50-mile cycling road race in the same competitions. In the final lap, she was accidentally knocked down by a fellow contestant and sustained a fractured rib and a concussion though she soldiered on and completed the race with the agonising adversity.  Inevitably, she saw a bit of time in a local health facility.   According to information dug up by George Webb, an investigative journalist based in Washington DC,     Benassie would later test positive for Covid-19 at the Fort Belvoir Community Hospital.

Incidentally, Benassie apparently passed on the virus to other US soldiers at the games, who were hospitalised right there in China before they were airlifted back to the US. The US government straightaway prohibited the publicising of details on the matter under the time-honoured excuse of “national security interests”, which raised eyebrows as a matter-of-course. As if that was not fishy enough, the US out of the blue tightened Chinese visas to the US at the conclusion of the games.

The rest, as they say, is history: two months later, Covid-19 had taken hold on China territory.  “From that date onwards,” said one report, “one to five new cases were reported each day. By December 15, the total number of infections stood at 27 — the first double-digit daily rise was reported on December 17 — and by December 20, the total number of confirmed cases had reached 60.”

TWO CURIOUS RESEARCH HALTINGS

Is it a coincidence that all the US soldiers who fell ill at the Wuhan games did their preparatory training at the Fort Belvoir military base, only a 15-minutes’  drive from Fort Detrick?

That Fort Detrick is a plain-sight perpetrator of pathogenic evils is evidenced by a number of highly suspicious happenings concerning it. Remember the 2001 anthrax mailing attacks on government and media houses which killed five people right on US territory? The two principal suspects who puzzlingly were never charged, worked as microbiologists at Fort Detrick. Of the two, Bruce Ivins, who was the more culpable, died in 2008 of “suicide”. For “suicide”, read “elimination”, probably because he was in the process of spilling the beans and therefore cast the US government in a stigmatically diabolical light. Indeed, the following year, all research projects at Fort Detrick were suspended on grounds that the institute was “storing pathogens not listed   in its database”. The real truth was likely much more reprehensible.

In 2014, there was a mini local pandemic in the US which killed thousands of people and which the mainstream media were not gutsy enough to report. It arose following the weaponisation at Fort Detrick of the H7N9 virus, prompting the Obama administration to at once declare a moratorium on the research and withdraw funding.

The Trump administration, however, which has a pathological fixation on undoing practically all the good Obama did, reinstated the research under new rigorous guidelines in 2017. But since old habits die hard, the new guidelines were flouted at will, leading to another shutdown of the whole research gamut at the institute in August 2019.  This, nonetheless, was not wholesale as other areas of research, such as experiments to make bird flu more transmissible and which had begun in 2012, proceeded apace. As one commentator pointedly wondered aloud, was it really necessary to study how to make H5N1, which causes a type of bird flu with an eye-popping mortality rate, more transmissible?

Consistent with its character, the CDC was not prepared to furnish particulars upon issuing the cease and desist order, citing “national security reasons”. Could the real reason have been the manufacture of the novel coronavirus courtesy of a tip-off by the more scrupulous scientists?

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Opinions

Masisi faces ultimate test of his presidency

9th July 2020

President Mokgweetsi Masisi may have breathed a huge sigh of relief when he emerged victorious in last year’s 2019 general elections, but the ultimate test of his presidency has only just begun.

From COVID-19 pandemic effects; disenchanted unemployed youth, deteriorating diplomatic relations with neighbouring South Africa as well as emerging instability within the ruling party — Masisi has a lot to resolve in the next few years.

Last week we started an unwanted cold war with Botswana’s main trade partner, South Africa, in what we consider an ill-conceived move. Never, in the history of this country has Botswana shown South Africa a cold shoulder – particularly since the fall of the apartheid regime.

It is without a doubt that our country’s survival depends on having good relations with South Africa. As the Chairperson of African National Congress (ANC), Gwede Mantashe once said, a good relationship between Botswana and South Africa is not optional but necessary.

No matter how aggrieved we feel, we should never engage in a diplomatic war — with due respect to other neighbours— with South Africa. We will never gain anything from starting a diplomatic war with South Africa.

In fact, doing so will imperil our economy, given that majority of businesses in the retail sector and services sector are South African companies.

Former cabinet minister and Phakalane Estates proprietor, David Magang once opined that Botswana’s poor manufacturing sector and importation of more than 80 percent of the foodstuffs from South Africa, effectively renders Botswana a neo-colony of the former.

Magang’s statement may look demeaning, but that is the truth, and all sorts of examples can be produced to support that. Perhaps it is time to realise that as a nation, we are not independent enough to behave the way we do. And for God’s sake, we are a landlocked country!

Recently, the effects of COVID-19 have exposed the fragility of our economy; the devastating pleas of the unemployed and the uncertainty of the future. Botswana’s two mainstay source of income; diamonds and tourism have been hit hard. Going forward, there is a need to chart a new pathway, and surely it is not an easy task.

The ground is becoming fertile for uprisings that are not desirable in any country. That the government has not responded positively to the rising unemployment challenge is the truth, and very soon as a nation we will wake up to this reality.

The magnitude of the problem is so serious that citizens are running out of patience. The government on the other hand has not done much to instil confidence by assuring the populace that there is a plan.

The general feeling is that, not much will change, hence some sections of the society, will try to use other means to ensure that their demands are taken into consideration. Botswana might have enjoyed peace and stability in the past, but there is guarantee that, under the current circumstances, the status quo will be maintained.

It is evident that, increasingly, indigenous citizens are becoming resentful of naturalised and other foreign nationals. Many believe naturalised citizens, especially those of Indian origin, are the major beneficiaries in the economy, while the rest of the society is side-lined.

The resentfulness is likely to intensify going forward. We needed not to be heading in this direction. We needed not to be racist in our approach but when the pleas of the large section of the society are ignored, this is bound to happen.

It is should be the intention of every government that seeks to strive on non-racialism to ensure that there is shared prosperity. Share prosperity is the only way to make people of different races in one society to embrace each other, however, we have failed in this respect.

Masisi’s task goes beyond just delivering jobs and building a nation that we all desire, but he also has an immediate task of achieving stability within his own party. The matter is so serious that, there are threats of defection by a number of MPs, and if he does not arrest this, his government may collapse before completing the five year mandate.

The problems extend to the party itself, where Masisi found himself at war with his Secretary General, Mpho Balopi. The war is not just the fight for Central Committee position, but forms part of the succession plan.

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