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Who are the real law – makers in society?


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yet we have the Witchcraft Suppression Act in most jurisdictions(see S.A. Act 3 of 1957) ,an Act that has just been repealed  in  countries like  Zimbabwe  and Zambia and which makes it criminal for one to ‘accuse’ another person of being a witch!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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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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The Big Deal About Piracy

21st June 2022

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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Our Strength is our Unity

18th March 2022

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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