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Defending and Preserving Workers’ Agenda in the Midst of Repressive Laws

JUSTICE KEY DINGAKE

Permit me to express my sincere gratitude to the organizers of this event, for the opportunity to share some critical reflections with you consistent with your theme, namely,” Defending and preserving Workers Agenda in the Midst of Repressive Laws”.

It is not quite often that a judge of the Republic interacts with organized labour in the manner afforded by this opportunity as quite often we meet in adversarial circumstances in which the engagement is mediated by hierarchical power relations and other antagonistic relationships.

 

And since you are part of the executive, in a constitutional sense, I wondered whether my presence here does not violate the separation of powers that enjoins me to keep to my lane and and not to trespass into your lane. I am certain though that this intellectual moment we share does no violence to the principle of separation of powers.

 

I must begin the substantive engagement with your theme by problematizing labour relations in the public service so that you appreciate the space you occupy and operate in.  Labour relations in the public service is not the same as with the private sector.

 

Herein lies the distinction: First, the state is in the unique position of being both the employer and a chief determinant of national economic and social policies which policies may directly impact on employment matters.

 

This raises the issue of the government as an employer being in some way a judge in its own cause. Secondly, workers in government discharge services which have serious impact on members of the public generally, hence the very apt description as members of the public service and the Act that regulates your operations, styled, “Public Service Act”.

The consequence of the above is that unlike contracts of employment in the private sector, the failure of the state to deliver requisite and proper services to the public raises both political and economic questions.

Thirdly, salaries and wages payable to government employees, are a component of national budget, which in all democracies require the approval of the elected legislature. This raises grave constitutional questions, namely, to what extent should the legislature be bound by prior commitments by the executive arm of the government to award certain salary increases? And more fundamentally, how far should organized labour like BOPEU be permitted to exert pressure on a democratically legislature, or the executive  to extract certain concessions?

 

Your theme seems to suggest that you hold the view that labour laws in Botswana may be repressive making it difficult for you to defend worker’s rights. I make no findings of fact on the state of labour law; but wish to remind you that Botswana is a constitutional democracy in terms of which the constitution is the supreme law of the land and any law inconsistent with it may be declared by our courts to be constitutionally non compliant and therefore invalid.

 

In engaging on your theme, it seems to me to be imperative, to bring on board certain relevant contextual considerations that illuminate our conversation. To this extent it is important  to recall  and remind ourselves of the historic Declaration of Philadelphia that sets out the aims and purposes of the International Labour Organization. The Declaration proclaims, among other things that:

“ Labour is not a commodity; freedom of expression and association are essential to sustained progress; poverty anywhere constitutes a danger to prosperity anywhere; the war against want requires to be carried out with unrelenting vigor within each nation, and by continuous and concerted international effort in which the representative of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to promotion of the common welfare”.

 

The lessons of history and indeed the lessons derived from the Declaration, that none amongst us gathered here, today,  can credibly contest, is that lasting peace, development and social justice can not be achieved in any society if labour is still regarded as a commodity and deserving to be chained and repressed.

 

All human beings, (and workers are no less human beings), have a right to pursue their rights to work under conditions of freedom and dignity, characterized by mutual respect and openness, economic security and equal opportunity.

 

This can only be so if organized labour is regarded as an equal partner in economic development agenda. We need, as a nation, to engage in transformational dialogue in which organized labour, employers and government can genuinely see each other as equals in the development project of our republic.

 

Trade Unions exist for one primary purpose: to articulate and defend the interests of the workers. Historically, the attitude of the law to trade unions was one of hostility. They were regarded not as equal partners but some kind of conspiratorial group whose interests are inimical to that of the nation state.

 

This thinking, to the extent that some remnants of it may still be found in our statute books need to be discarded in favour of the new thinking that regards organized labour as a genuine partner in development. Our labour law must mirror the values of human dignity and freedom reflected in the letter and spirit of our constitution and international legal instruments which Botswana as a member of civilized community of nations has ratified – thereby signalling its desire to live by those principles.

 

Labour law is a sensitive subject; it is located at an intersection between, economics, politics and law. It is a compromise  between organized labour – a very powerful socio-economic force and the employers of labour, on the other hand; an equally powerful socio-economic force.

 

The balance between the two is delicate; and if not handled with care it can destabilize and derail the development agenda of the country. The courts are custodians of this delicate balance – and they miss the delicacy at a great cost to the nation.

 

No area of Botswana labour law has developed as rapidly in the past decade or so as the one regulating the relationship between organized labour and employers. This rapid development was fuelled by Botswana’s domestication  of a number of the ILO core conventions in 2004 such as Labour Relations (Public Service) Convention, Freedom of Association and the Protection of the Right to Organize Convention, and the Right to Organize and Collective Bargaining Convention.

 

The above Conventions seek to ensure that the rights of workers to form their own organizations, to defend their interests, to freely associate and bargain collectively are respected in practice; because labour is not a commodity. The right to strike which is recognised by international labour law is an important aspect of the right to collective bargaining.

 

The Committee on Freedom of Association has in the past observed that:

“The right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests”.

The right to strike is not expressly recognized in the constitution, but is statutorily available, subject to conditions stated therein. It is generally accepted that such a right may be restricted with respect to essential services.

 

The right to strike often goes together with the right to lock out by employers. There is a debate whether the two rights enjoy equal weighting. The South African Constitutional Court gives the right to strike more weight than the right to lock out, because in the view of the court, “ Collective bargaining is based on the recognition of the fact that employers enjoy greater social and economic power than individual workers”.

 

It was stated in the South African case of Metal and Electrical Workers Union of South Africa v National Panasonic Union ,  1991(12) ILJ 533, per Conrandie J, that:

“ A strike is like a boxing match. The opponent tries within the rules to hurt the other as much as possible. There is a referee to see that the rules are observed. The Court is the referee. It does not intervene simply because one of the opponents is being hurt – that is the idea of the contest.

 

The referee may intervene when one of them is struck a blow below the belt – the parties to an an industrial contest take time and trouble to shape up their fight, there are all kinds of things which they are expected to do before they are permitted to enter the ring”.

 

On the matter of restriction of the right to strike with respect to essential services, Convention 87 confines, “ essential services for the purpose of limiting the right to strike to “ services the interruption of which would endanger life, personal safety or the health of part of or the whole of the population”. This view has been repeated on many occasions by the ILO Committee of Experts on the Application of Convention 87.

 

The jurisprudence of the Committee of Experts and writtings of labour law scholars often stress that to be compatible with fundamental right to collective bargaining by employees, essential services are to be given a strict and narrow meaning.

 

Earlier, I indicated that we are a constitutional democracy governed by a supreme constitution that entrenches the values of freedom, anti-discrimination  and human dignity. Parliament is enjoined, in fact, instructed by the constitution, to pass laws for the good order and government of the republic.

 

They are not permitted to pass laws as they please; laws  that may offend the constitution. Where statutory law is vague or unclear it must be interpreted in a manner that will give effect to the Constitution and where appropriate international law.

 

The Industrial Court understands the sensitivity of labour law that I earlier spoke of. In interpreting and applying statute law it has sought to ensure that its decisions, are fair and informed by international labour law. The understanding being that the ultimate objective of law is the welfare of society.

 

In its decisions the industrial court has always insisted that any dismissal of an employee, post probation, must be procedurally and substantively fair. In terms of the jurisprudence of the industrial court no employee can be dismissed at the whims and caprices of the employer without a valid reason. This jurisprudence has contributed to job security. In consequence of this jurisprudence our industrial court is held high esteem by other labour courts across the world and the international labour organization.

 

Any jurisprudence to the contrary; and that pays lip service to job security runs counter to the celebrated jurisprudence of the Industrial court as I have sought to indicate. Perhaps in order to ensure consistent jurisprudence on matters impacting on job security at the work place, it has become important to revisit the idea of the Labour Appeals Court that is constituted by experts in the field; experts that fully understand and appreciate the precise location of labour law at the intersection I earlier spoke of and the delicacy of labour law; and more importantly its role as an enabler of economic development. Labour must assist in ensuring that labour is productive and is not demotivated unnecessarily.

 

It is important that trade unions appreciate the nature and essence of law so that that they don’t regard law as the magic wand to resolve their problems and then overburden the courts with matters that can be resolved by stakeholders; and use courts only as a last resort.

 

There is always a danger that the courts’ credibility as impartial arbiters may suffer when the courts are used as sites of struggle in high profile polycentric cases whose resolution is not entirely dependent on textual provisions of the law, but rather on value judgements of the justices of the court.

 

As unions your main asset is the strength of your organizations; your ability to organize, defend and protect your interests. You need to understand and appreciate that law is a technique for the regulation of power. This is true of labour law. Power – the capacity effectively to direct the behaviour of others – is unevenly distributed – in all societies.

 

The power to make and enforce laws is social power. This power rests on many foundations, it may be based on prestige, dominance, wealth and ability to organise. The latter is the source of your power.

In short, as my revered brother and friend Justice Dikgang Moseneke, formerly the Deputy chief Justice of South Africa, and recently retired, would say: “You are your own liberators”. Lawyers and other experts may assist, but ultimately, you are your own liberators.

 

In pursuing your demands on what you consider due to you; you must be reasonable, rational and fair. You must refrain from making demands that are irrational and are not justifiable. Your demands must always be evidence driven. Nothing should be given that cannot be justified. Similarly, your employers must justify all its positions on the basis of evidence, and nothing less.

 

The culture of justification is part and parcel of a constitutional state ruled in accordance with the constitution, not the whims and caprices of anyone.

You must do nothing that contravenes the law; especially, the spirit and text of the constitution. Similarly government as the employer must do so; the latter, arguably having a heavier duty to lead by example; because disobedience of the law on its part amounts to saying to the populace that it is fine to disobey the law.

 

In the recent past BOPEU has been hailed as the union of choice by its members; it has been at the forefront of advancing and securing diverse range of benefits, maintaining and improving the living and working conditions of workers’ in Botswana and regulating the relations between workers and employers. Indeed it is true that a successful union is one that is internally strong that it may be effective in protecting the interests of workers.

 

However, history has shown us that the success of unions also lie with their relationship, rapport and liaison with employers as equal partners at the table. Sadly, it has become more evident that there are opposing forces between the workers’ and employers on the subject of Unions and various labour laws.

 

Often at times, employers the world over, have tended to adopt adversarial attitude towards Trade Unions, resisting Unions for the same reasons that workers desire them. As we celebrate fifty years of self-rule this attitude can and should no longer stand if we are to build a Botswana for all in which its economic success will be based on workers as the drivers of the economy.  

 

Our economy will not advance if we don’t take care of the welfare of those who create the country’s wealth, the workers. To this extent, workers need a living wage and not so much minimum wage. A minimum wage is about setting a wage floor under which no worker can earn.

 

A living wage on the other hand is the minimum income that necessary for a worker to meet his needs and that of his or her family. The scales of justice needs to be delicately balanced so that the wage regime does not in anyway imperil the development of the country. Slave wages are known undermine economic growth.

 

Mr President, I urge you to pay attention, to the matter of decent of decent work as defined by the ILO. The decent work agenda focusses on job creation, rights at work, social protection and social dialogue, with gender equality. The term decent work is promoted through the Decent Agenda and was coined by the Director General of the International Labour Organization (ILO), Mr. Juan Somavia in 1999, who defined decent work as

 

 “productive work in which rights are protected, which generates an adequate income with adequate social protection. It marks the high road to economic and social development, a road in which employment, income and social protection can be achieved without compromising workers’ rights and sound standards” The ILO is also committed to promoting policies on wages and incomes that ensure a just share for all.

 

I must conclude my reflections by urging all stakeholders in the labour relations to work together as equal partners in the interest of our country. A motivated and hard working workforce is in the interest of the country. The workforce must engage with the employer with respect and their demands must be evidence based. Similarly, the government response or position must be evidence based.

 

Trade Unions are critical in maintaining workplace stability. A motivated public service tends to render high quality service to the public. In a properly functioning democracy no law should offend the values of freedom, human dignity and non discrimination. In our constitutional state, the above values define who we are as a people.

 

Speech by Professor Justice Oagile Bethuel Key Dingake Judge of the High Court (Botswana); Judge of Residual Special Court (Sierra Leone) at the BOPEU NEC congress in Francistown

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Opinions

The Taiwan Question: China ramps up military exercises to rebuff US provocations

18th August 2022

US House Speaker Nancy Pelosi’s visit to Taiwan has violated the One-China policy, and caused the escalation of tensions across the Taiwan Strait. Experts and political observers across the spectra agree that Pelosi’s actions and subsequent pronouncements by US President Joe Biden gave impetus to an already simmering tension in the Taiwan Strait, provoking China to strengthen its legitimate hold on the Taiwan Strait waters, which the US and Taiwan deem as ‘international waters’.

Pelosi’s visit to China’s Taiwan region has been heavily criticised across the globe, with China arguing that this is a serious violation of the one-China principle and the provisions of the three China-US Joint Communiqués.  In response to this reckless move which seriously undermined China’s sovereignty, and interfered in China’s internal affairs, the expectation is for China to give a firm response. Pelosi visit violated the commitments made by the U.S. side, and seriously jeopardized peace and stability across the Taiwan Strait.

To give context to China’s position over Taiwan region, the history behind gives us perspective. It is also important to note that the history between China and Taiwan is well documented and the US has always recognized it.

The People’s Republic of China recognises Taiwan as its territory. It has always been  the case even before the Nationalist Republic of China government fled to the previously Japanese-ruled Island after losing the civil war on the mainland in 1949. According to literature that threat was contained for decades — first with a military alliance between the US and the ROC on Taiwan, and after Washington switched diplomatic recognition to the PRC in 1979 by the US One China policy, which acknowledges Beijing’s position that Taiwan is part of One China. Effectively, Taiwan’s administration was transferred to the Republic of China from Japan after the Second World War in 1945, along with the split between the People’s Republic of China (PRC) and the Republic of China (ROC) as a consequence of the Chinese Civil War. Disregarding this history, as the US is attempting to do, will surely initiate some defence reaction on the side of China to affirm its sovereignty.

However, this history was undermined since Taiwan claimed to democratise in the 1990s and China has grown ever more belligerent. Furthermore, it is well documented that the Biden administration, following the Trump presidency, has made subtle changes in the way it deals with Taipei, such as loosening restrictions on US officials meeting Taiwanese officials – this should make China uneasy. And while the White House continues to say it does not support Taiwanese independence, Biden’s words and actions are parallel to this pledge because he has warned China that the US would intervene militarily if China attacked Taiwan – another statement that has provoked China.

Pelosi, in her private space, would know that her actions amount to provocation of China. This act of aggression by the USA seriously undermines the virtues of sovereignty and territorial integrity which has a huge potential to destabilize not only the Taiwan Strait but the whole of the Asia- Pacific region.  The Americans know very well that their provocative behavior is deliberately invoking the spirit of separatism masqueraded as “Taiwan independence”.  The US is misled to think that by supporting separatism of Taiwan from China that would give them an edge over China in a geopolitics. This is what one Chinese diplomat said this week: “The critical point is if every country put their One-China policy into practice with sincerity, with no compromise, is going to guarantee the peace and stability across the Taiwan Strait.”  Therefore, it was in the wake of US House speaker Nancy Pelosi’s visit to Taiwan, that China, in a natural response revealed plans for unprecedented military exercises near the island, prompting fears of a crisis in the Taiwan Strait and the entire Asia-Pacific region. The world community must promote and foster peace, this may be achieved when international laws are respected. It may also happen when nations respect the sovereignty of another. China may be in a better space because it is well capacitated to stake its territorial integrity, what about a small nation, if this happens to it?

As to why military exercises by Beijing; it is an expected response because China was provoked by the actions of Pelosi. To fortify this position, Chinese President, Xi signed a legal basis for China’s People’s Liberation Army to “safeguard China’s national sovereignty, security and development interests”. The legal basis will also allow military missions around disaster relief, humanitarian aid and peacekeeping. In addition the legal changes would allow troops to “prevent spillover effects of regional instabilities from affecting China, secure vital transport routes for strategic materials like oil, or safeguard China’s overseas investments, projects and personnel.  It then follows that President Xi’s administration cannot afford to look weak under a US provocation. President Xi must protector China’s sovereignty and territorial integrity, of which Taiwan is a central part.” Beijing is very clear on One-China Policy, and expects all world players to recognize and respect it.

The People’s Liberation Army has made it clear that it has firepower that covers all of Taiwan, and it can strike wherever it wants. This sentiments have been attributed to Zhang Junshe, a researcher at the PLA Navy Research Institute. Zheng further said, “We got really close to Taiwan. We encircled Taiwan. And we demonstrated that we can effectively stop intervention by foreign forces.” This is a strong reaction from China to warn the US against provocation and violation of the One-China Policy.

Beijing’s military exercises will certainly shake Taiwan’s confidence in the sources of its economic and political survival. The potential for an effective blockade threatens the air and shipping routes that support Taiwan’s central role in global technology supply chains. Should a humanitarian situation arise in Taiwan, the blame would squarely be on the US.

As China’s military exercises along the Taiwan Strait progress and grow, it remains that the decision by Nancy Pelosi to visit China’s Taiwan region gravely undermined peace and stability across the Taiwan Strait, and sent a wrong signal to “Taiwan independence” separatist forces. This then speaks to international conventions, as the UN Secretary-General António Guterres explicitly stressed that the UN remains committed to the UN General Assembly Resolution 2758. The centerpiece is the one-China principle, namely, there is but one China in the world, the government of the People’s Republic of China is the sole legal government representing the whole of China, and Taiwan is a part of China. It must be noted that the US and the US-led NATO countries have selectively applied international law, this has been going on unabated. There is a plethora of actions that have collapsed several states after they were attacked under the pretext of the so-called possession of weapons of mass destruction illuminating them as threats – and sometimes even without any valid reason. to blatantly launch military strikes and even unleash wars on sovereign countrie

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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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