Connect with us
Advertisement

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yet we have the Witchcraft Suppression Act in most jurisdictions(see S.A. Act 3 of 1957) ,an Act that has just been repealed  in  countries like  Zimbabwe  and Zambia and which makes it criminal for one to ‘accuse’ another person of being a witch!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

Continue Reading

Opinions

Can we cure ourselves from the cancer of corruption?

28th October 2020
DCEC DIRECTOR: Tymon Katholo

Bokani Lisa Motsu

“One of the saddest lessons of history is this: If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle. We’re no longer interested in finding out the truth. The bamboozle has captured us. It’s simply too painful to acknowledge, even to ourselves, that we’ve been taken. Once you give a charlatan power over you, you almost never get it back.” Carl Sagan

Corruption is a heavy price to pay. The clean ones pay and suffer at the mercy of people who cannot have enough. They always want to eat and eat so selfishly like a bunch of ugly masked shrews. I hope God forgives me for ridiculing his creatures, but that mammal is so greedy. But corruption is not the new kid on the block, because it has always been everywhere.

This of course begs the question, why that is so? The common answer was and still is – abuse and misuse of power by those in power and weak institutions, disempowered to control the leaders. In 1996, the then President of The World Bank, James D. Wolfensohn named the ‘C-Word’ for the first time during an annual meeting of the Bretton Woods Institutions. A global fight against corruption started. Transparency International began its work. Internal and external audits mushroomed; commissions of inquiry followed and ever convoluted public tender procedures have become a bureaucratic nightmare to the private sector, trying to fight red tape.

The result is sobering corruption today is worse than it was 25 years ago. There is no denying that strong institutions help, but how does it come that in the annual Transparency International Ranking the same group of countries tend to be on the top while another group of countries, many African among them, tend to be on the bottom? Before one jumps to simple and seductive conclusions let us step back a moment.

Wolfensohn called corruption a cancer that destroys economies like a cancer destroys a body. A cancer is, simplified, good cells in a body gone bad, taking control of more and more good cells until the entire body is contaminated and eventually dies. So, let us look at the good cells of society first: they are family ties, clan and tribe affiliation, group cohesion, loyalty, empathy, reciprocity.

Most ordinary people like the reader of these lines or myself would claim to share such values. Once we ordinary people must make decisions, these good cells kick in: why should I hire a Mrs. Unknown, if I can hire my niece whose strengths and weaknesses I know? If I hire the niece, she will owe me and support my objectives.

Why should I purchase office furniture from that unknown company if I know that my friend’s business has good quality stuff? If I buy from him, he will make an extra effort to deliver his best and provide quality after sales service? So, why go through a convoluted tender process with uncertain outcome? In the unlikely case my friend does not perform as expected, I have many informal means to make him deliver, rather than going through a lengthy legal proceeding?

This sounds like common sense and natural and our private lives do work mostly that way and mostly quite well.

The problem is scale. Scale of power, scale of potential gains, scale of temptations, scale of risk. And who among us could throw the first stone were we in positions of power and claim not to succumb to the temptations of scale? Like in a body, cancer cells start growing out of proportion.

So, before we call out for new leaders – experience shows they are rarely better than the old ones – we need to look at ourselves first. But how easy is that? If I were the niece who gets the job through nepotism, why should I be overly critical? If I got a big furniture contract from a friend, why should I spill the beans? What right do I have to assume that, if I were a president or a minister or a corporate chief procurement officer I would not be tempted?

This is where we need to learn. What is useful, quick, efficient, and effective within a family or within a clan or a small community can become counterproductive and costly and destructive at larger corporate or national scale. Our empathy with small scale reciprocity easily permeates into complacency and complicity with large scale corruption and into an acquiescence with weak institutions to control it.

Our institutions can only be as strong as we wish them to be.

I was probably around ten years old and have always been that keen enthusiastic child that also liked to sing the favourite line of, ‘the world will become a better place.’  I would literally stand in front of a mirror and use my mom’s torch as a mic and sing along Michael Jackson’s hit song, ‘We are the world.’

Despite my horrible voice, I still believed in the message.  Few years later, my annoyance towards the world’s corrupt system wonders whether I was just too naïve. Few years later and I am still in doubt so as to whether I should go on blabbing that same old boring line. ‘The world is going to be a better place.’ The question is, when?

The answer is – as always: now.

This is pessimistic if not fatalistic – I challenge Sagan’s outlook with a paraphrased adage of unknown origin: Some people can be bamboozled all of the time, all people can be bamboozled some of the time, but never will all people be bamboozled all of the time.

We, the people are the only ones who can heal society from the cancer of corruption. We need to understand the temptation of scale and address it. We need to stop seeing ourselves just a victim of a disease that sleeps in all of us. We need to give power to the institutions that we have put in place to control corruption: parliaments, separation of power, the press, the ballot box. And sometimes we need to say as a niece – no, I do not want that job as a favour, I want it because I have proven to be better than other contenders.

It is going to be a struggle, because it will mean sacrifices, but sacrifices that we have chosen, not those imposed on us.

Let us start today.

*Bokani Lisa Motsu is a student at University of Botswana

Continue Reading

Opinions

Accounting Officers are out of touch with reality

19th October 2020

Parliament, the second arm of State through its parliamentary committees are one of Botswana’s most powerful mechanisms to ensure that government is held accountable at all times. The Accounting Officers are mostly Permanent Secretaries across government Ministries and Chief Executive Officers, Director Generals, Managing Directors of parastatals, state owned enterprises and Civil Society.

So parliament plays its oversight authority via the legislators sitting on a parliamentary committee and Accounting Officers sitting in the hot chair.  When left with no proper checks and balances, the Executive is prone to abuse the arrangement and so systematic oversight of the executive is usually carried out by parliamentary committees.  They track the work of various government departments and ministries, and conduct scrutiny into important aspects of their policy, direction and administration.

It is not rocket science that effective oversight requires that committees be totally independent and able to set their own agendas and have the power to summon ministers and top civil servants to appear and answer questions. Naturally, Accounting Officers are the highest ranking officials in the government hierarchy apart from cabinet Ministers and as such wield much power and influence in the performance of government.  To illustrate further, government performance is largely owed to the strategic and policy direction of top technocrats in various Ministries.

It is disheartening to point out that the recent parliament committees — as has been the case all over the years — has laid bare the incompetency, inadequacy and ineptitude of people bestowed with great responsibilities in public offices. To say that they are ineffective and inefficient sounds as an understatement. Some appear useless and hopeless when it comes to running the government despite the huge responsibility they possess.

If we were uncertain about the degree at which the Accounting Officers are incompetent, the ongoing parliament committees provide a glaring answer.  It is not an exaggeration to say that ordinary people on the streets have been held ransom by these technocrats who enjoy their air conditioned offices and relish being chauffeured around in luxurious BX SUV’s while the rest of the citizenry continue to suffer. Because of such high life the Accounting Officers seem to have, with time, they have gotten out of touch with the people they are supposed to serve.

An example; when appearing before the recent Public Accounts Committee (PAC), Office of the President Permanent Secretary, Thuso Ramodimoosi, looked reluctant to admit misuse of public funds. Although it is clear funds were misused, he looked unbothered when committee members grilled him over the P80 million Orapa House building that has since morphed into a white elephant for close to 10 successive years. To him, it seems it did not matter much and PAC members were worried for nothing.

On a separate day, another Accounting officer, Director of Public Service Management (DPSM), Naledi Mosalakatane, was not shy to reveal to PAC upon cross-examination that there exist more than 6 000 vacancies in government. Whatever reasons she gave as an excuse, they were not convincing and the committee looked sceptical too. She was faltering and seemed not to have a sense of urgency over the matter no matter how critical it is to the populace.

Botswana’s unemployment rate hoovers around 18 percent in a country where majority of the population is the youth, and the most affected by unemployment. It is still unclear why DPSM could underplay such a critical matter that may threaten the peace and stability of the country.
Accounting Officers clearly appear out of touch with the reality out there – if the PAC examinations are anything to go by.

Ideally the DPSM Director could be dropping the vacancy post digits while sourcing funds and setting timelines for the spaces to be filled as a matter of urgency so that the citizens get employed to feed their families and get out of unemployment and poverty ravaging the country.
The country should thank parliamentary committees such as PAC to expose these abnormalities and the behaviour of our leaders when in public office. How can a full Accounting Officer downplay the magnitude of the landless problem in Botswana and fail to come with direct solutions tailor made to provide Batswana with the land they desperately need?

Land is a life and death matter for some citizens, as we would know.

When Bonolo Khumotaka, the Accounting Officer in the Ministry of Land Management, Water and Sanitation Services, whom as a top official probably with a lucrative pay too appears to be lacking sense of urgency as she is failing on her key mandate of working around the clock to award the citizens with land especially those who need it most like the marginalised.  If government purports they need P94 billion to service land to address the land crisis what is plan B for government? Are we going to accept it the way it is?

Government should wake up from its slumber and intervene to avoid the 30 years unnecessary waiting period in State land and 13 years in Tribal land.  Accounting Officers are custodians of government policy, they should ensure it is effective and serve its purpose. What we have been doing over the years, has proved that it is not effective, and clearly there is a need for change of direction.

Continue Reading

Opinions

Is it possible to make people part of your business resilience planning after the State of Public Emergency?

12th October 2020

THABO MAJOLA

His Excellency Dr Mokgweetsi EK Masisi, the President of the Republic of Botswana found it appropriate to invoke Section 17 (1) of the Constitution of the Republic of Botswana, using the powers vested in him to declare a State of Public Emergency starting from the 2nd April 2020 at midnight.

The constitutional provision under Section 17 (2b) only provided that such a declaration could be up to a maximum of 21 days. His Excellency further invoked Section 93 (1) to convene an extra- ordinary meeting of Parliament to have the opportunity to consult members of parliament on measures that have been put in place to address the spread and transmission of the virus. At this meeting Members of Parliament passed a resolution on the legal instruments and regulations governing the period of the state of emergency, and extended its duration by six (6) months.

The passing of the State of Emergency is considered as a very crucial step in fighting the near apocalyptic potential of the Novel COVID-19 virus. One of the interesting initiatives that was developed and extended to the business community was a 3-month wage subsidy that came with a condition that no businesses would retrench for the duration of the State of Public Emergency. This has potentially saved many people’s jobs as most companies would have been extremely quick to reduce expenses by downsizing. Self-preservation as some would call it.

Most organisations would have tried to reduce costs by letting go of people, retreated and tried their best to live long enough to fight another day. In my view there is silver lining that we need to look at and consider. The fact that organisations are not allowed to retrench has forced certain companies to look at the people with a long-term view.

Most leaders have probably had to wonder how they are going to ensure that their people are resilient. Do they have team members who innovate and add value to the organisation during these testing times? Do they even have resilient people or are they just waiting for the inevitable end? Can they really train people and make them resilient? How can your team members be part of your recovery plan? What can they do to avoid losing the capabilities they need to operate meaningfully for the duration of the State of Public Emergency and beyond?

The above questions have forced companies to reimagine the future of work. The truth is that no organisation can operate to its full potential without resilient people. In the normal business cycle, new teams come on board; new business streams open, operations or production sites launch or close; new markets develop, and technology is introduced. All of this provides fresh opportunities – and risks.

The best analogy I have seen of people-focused resilience planning reframes employees as your organisation’s immune system, ready and prepared to anticipate risks and ensure they can tackle challenges, fend off illness and bounce back more quickly.  So, how do you supercharge your organizational immune system to become resilient?

COVID-19 has helped many organisations realize they were not as prepared as they believed themselves to be. Now is the time to take stock and reset for the future. All the strategies and plans prior to COVID-19 arriving in Botswana need to be thrown out of the window and you need to develop a new plan today. There is no room for tweaking or reframing. Botswana has been disrupted and we need to accept and embrace the change. What we initially anticipated as a disease that would take a short term is turning out to be something we are going to have to live with for a much longer time. It is going to be a marathon and therefore businesses need to have a plan to complete this marathon.

Start planning. Planning for change can help reduce employee stress, anxiety, and overall fear, boosting the confidence of staff and stakeholders. Think about conducting and then regularly refreshing a strategic business impact analysis, look at your employee engagement scores, dig into your customer metrics and explore the way people work alongside your behaviours and culture. This research will help to identify what you really want to protect, the risks that you need to plan for and what you need to survive during disruption. Don’t forget to ask your team members for their input. In many cases they are closest to critical business areas and already have ideas to make processes and systems more robust.

Revisit your organisational purpose. Purpose, values and principles are powerful tools. By putting your organisation’s purpose and values front and center, you provide clear decision-making guidelines for yourself and your organisation. There are very tough and interesting decisions to make which have to be made fast; so having guiding principles on which the business believes in will help and assist all decision makers with sanity checking the choices that are in front of them. One noticeable characteristic of companies that adapt well during change is that they have a strong sense of identity. Leaders and employees have a shared sense of purpose and a common performance culture; they know what the company stands for beyond shareholder value and how to get things done right.

Revisit your purpose and values. Understand if they have been internalised and are proving useful. If so, find ways to increase their use. If not, adapt them as necessities, to help inspire and guide people while immunizing yourself against future disruption. Design your employee experience. The most resilient, adaptive and high performing companies are made up of people who know each other, like each other, and support each other.

Adaptability requires us to teach other, speak up and discuss problems, and have a collective sense of belonging. Listening to your team members is a powerful and disruptive thing to do. It has the potential to transform the way you manage your organisation. Enlisting employees to help shape employee experience, motivates better performance, increases employee retention and helps you spot issues and risks sooner. More importantly, it gives employees a voice so you can get active and constructive suggestions to make your business more robust by adopting an inclusive approach.

Leaders need to show they care. If you want to build resilience, you must build on a basis of trust. And this means leaders should listen, care, and respond. It’s time to build the entire business model around trust and empathy. Many of the employees will be working under extreme pressure due to the looming question around what will happen when companies have to retrench. As a leader of a company transparency and open communication are the most critical aspects that need to be illustrated.

Take your team member into confidence because if you do have to go through the dreaded excise of retrenchment you have to remember that those people the company retains will judge you based on the process you follow. If you illustrate that the business or organization has no regard for loyalty and commitment, they will never commit to the long-term plans of the organisation which will leave you worse off in the end. Its an absolutely delicate balance but it must all be done in good faith. Hopefully, your organization will avoid this!

This is the best time to revisit your identify and train your people to encourage qualities that build strong, empathetic leadership; self-awareness and control, communication, kindness and psychological safety.  Resilience is the glue that binds functional silos and integrates partners, improves communications, helps you prepare, listen and understand. Most importantly, people-focused resilience helps individuals and teams to think collectively and with empathy – helping you respond and recover faster.

Article written by Thabo Majola, a brand communications expert with a wealth of experience in the field and is Managing Director of Incepta Communications.

Continue Reading
Do NOT follow this link or you will be banned from the site!