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Lack of constitutional review violates new Vision 2036 – Dikgosi

Some members of Ntlo ya Dikgosi have indicated that the deficiency of a holistic review of the current old-fashioned Botswana constitution violates the newly established country Vision 2036. The country’s supreme law effected in 1965 and it has never been reviewed holistically since then.

The main contention of the dikgosi is that the constitution should be all “inclusive” and “recognise” all tribes in Botswana as per the Vision 2036. In the country’s new vision, citizens pointed out that the supreme law should be reviewed to reflect their assertion and aspirations of making tribes equal in black and white.  

This week, the tribal leaders highlighted during a debate of a motion sponsored by an eccentric Kgosi Galeakanye Modise of the Tswapong Region that the country needs to move with times and change the old law.

Through the motion, Modise had sought “that this Honourable house requests government to start the process of constitutional review, so that Batswana can be afforded an opportunity to make an input on the constitution that would be neutral, respectful and cognizant of every citizen of this country.”

The Tswapong region Kgosi was presenting the motion at Ntlo ya Dikgosi which was also graced by Minister of Presidential Affairs, Governance and Public Administration Eric Molale, Minister of Basic Education Unity Dow and Assistant Minister of Local Government and Rural Development Botlogile Tshireletso who were representing government.   

While putting the motion in perspective he asserted: “let me stress that what am saying is that we must have a constitution which treats all citizens equally. To put this into context, it’s not only me calling for making equal our tribes in the constitution but if you can look at the Vision 2036 as well it echoes this very well.”

“Bogosi will be a visible, functional and empowered institution of governance contributing to national development. Bogosi will continue to maintain social order and cohesion. The power of Dikgosi in community development and the management of public affairs will be continually reviewed and realigned to emerging needs. Botswana laws in respect of customary law and common law shall be harmonised. All ethnic groups will have equal recognition and representation at Ntlo ya Dikgosi,” posits the new Vision 2036 on page 26.

Modise pointed out to a fully attentive house when pondering on the highly sensitive and explosive motion that, “it is Batswana who speak through the Vision 2036, they demonstrate that the current constitution does not treat the members of Ntlo ya Dikgosi equally.”

According to Modise, what concerns him most about reviewing the more than 50 years old constitution is that he believes everyone should at this point concede that the supreme law needs an appraisal to conform to the contemporary times.

While he conceded that they all sit in Ntlo ya Dikgosi and look the same, the nation recognises that “our constitution is flawed, has loopholes and is discriminatory”.

“Batswana also indicated that we are not one and the same in Vision 2016. So they want to correct this so that we are equivalents in this house. They stated even in the previous Vision 2016 document page 25 that “in order to achieve transformation and meet expectation of Batswana, the Constitution and legal framework will be reviewed and reformed.”

If the government does not review the law, Modise stated that they will be working against the aspirations of Batswana as espoused in both the elapsed Vision 2016 as well as the new-fangled Vision 2036.

“Other dikgosi should be on the same league with the old known eight major tribes. Bogosi Act implies that we are equivalents but constitution points a different scenario. And the irony of it is that the constitution supersedes the Bogosi Act.”

He said the then amended Section 77, 78, 79 of the constitution did not address the whole constitutional deficiencies currently be-devilling Ntlo ya Dikgosi.

According to Section 77 of the constitution, under subsection 11 (1) (1) “there shall be a Ntlo ya Dikgosi for Botswana which shall consist of not less than 33 nor more than 35 Members which shall be constituted as follows— (a) one person from each of the following areas, which person for the time being performs the functions of the office of Kgosi in respect of such areas- (i) Barolong Farms in the Southern District, (ii) Chobe in the North West District, (iii) Ga Malete in the South East District, (iv) Ga Mmangwato in the Central District, (v) Ghanzi District, (vi) Goo Tawana in the North West District, (vii) Kgalagadi District, (viii) Kgatleng District, (ix) Kweneng District, (x) Ngwaketse in the Southern District, (xi) North East District, and (xii) Tlokweng in the South East District; (b) five persons who shall be appointed by the President; and (c) such number of persons, not being more than 20, as may be selected under section 78(4)(c) of this Constitution.”

Currently, members of Ntlo ya Dikgosi include Kgosi Puso Gaborone of Batlokwa (Chairman of the house), Kgosi Malope II of Bangwaketse (deputy chairman of the house), Kgosi Sediegeng Kgamane from Bangwato, Kgosi Kealetile Moremi representing Batawana, Barolong are represented by Kgosi Botiki Motshegare while Kgosi Mosadi Seboko is sitting in for Balete.

There is also Kgosi Kgari III representing Bakwena, Kgosi David S. Toto II of Kgalagadi South, Kgosi Justice from Moseki, Gantsi East, Kgosi Tjazako Munduu of Ngamiland, while Okavango is represented by Kgosi Disho Ndhowe and Kgosi Lobatse Beslag represents Gantsi West.

Kgosi Kgomotso Boiditswe represents Serowe Region; Kgosi Peter Johane Chika III for Chobe, Kgosi Colly Cock represents Thamaga Region, Kgosi Itsoseng Gaoonwe on behalf of Letlhakeng Region, Kgosi Rapelang Khuwe of Tutume Region and Kgosi Nametso Alfred Kopelo from Molepolole Region.

Maun Region is represented by Kgosi Oleyo Ledimo, Kgosi Thebe Makwa is from Moshupa Region, Kgosi Letso Malema from Bobirwa Region, Kgosi Seate Marumo representing Kanye Region, Kgosi Tshipe F. Tshipe of Mahalapye Region and Kgosi Kgosidialwa Oledile Puso Moalosi for Tonota Region.

There is also Kgosi Kekailwe Moscow Tefiso of Ngwaketse West, Kgosi Galeakanye Modise of Tswapong Region, Kgosi Sekgoma Eric M. Moipolai from North East Region and Kgosi Moeti Monyamane representing Kgalagadi North.

The Specially elected ones include; Kgosi Isaac Titus, Kgosi Moffat Maiba Sinvula, Kgosi Nguvauva Salatiel-Nguvauva II, Kgosi Maruje III Thabo Masunga and Kgosi Tsholo Segwaba.

When supporting the motion Kgosi Masunga III Maruje who has been calling for not only a review of the constitution as well but a holistic approach to it said: “a Constitutional review is long overdue, I agree with Batswana on the Vision 2036 document, I believe it is and should be a holistic issue. So that Batswana can be afforded an opportunity to make an input on the Constitution.”

However Kgosi Kgari Sechele of Bakwena, Kgosi Mosadi Seboko of Balete and Kgomotso Boiditswe of Serowe region shot down the motion insisting that they do not find the need and reason to support it, and that the status quo is fine.

Modise relied his assertion also on section15 of the constitution which states that “Protection from discrimination on the grounds of race, etc. (1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect. (2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. 9 of 2005, s. 4. (3) In this section, the expression "discriminatory" means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”

On his part, when responding to the motion, Minister Molale, said the motion touches on the very basic tenets of Constitutionality. “Already neutrality, respect, cognisance of every citizen’s right in this country are enshrined in the very same Constitution that you want to amend.”

“I posit to this Honourable House that our constitution as it is written is adequate, and takes cognisance of every citizen’s right. That is something that we must bear mind to and be knowledgeable of the fact that this constitution is still relevant and will remain relevant for some time.”

So, he added that: “I am positing that this constitution, in as far as the fundamental rights are concerned, is adequate and will remain adequate”. He said to fix that which isn’t broken can actually lead to having to fix more broken things that would have “broke by fixing the unbroken”.

“So I posit that it is not yet time to do an overhaul for our constitution because the laws that are there, in support of the provisions of this constitution are relevant and are effective. So, I further go on to say that to the extend therefore that the mover does not take issue with most of the chapters that make up this constitution, there is no basis whatsoever why the Government should undertake a holistic constitutional review, as opposed to seeking the amendment only of those provisions of the constitution relating to Ntlo ya Dikgosi.”

Molale indicated that the motion as he understands it refers to Ntlo ya Dikgosi and the manner in which Members of Ntlo ya Dikgosi ascend to the house. The OP minister said Ntlo ya Dikgosi as it is, is not a Constituent Assembly and that was done deliberately as it is a House of Representatives.

“When the constitution was amended the country was being divided into 12 districts, and so what seems to be irking some people is why some were/are still referred to as Dikgosikgolo. Remember there is nowhere in the law of this Republic where there is reference to Kgosikgolo. These are perceptions made by people for whatever reason that I would not understand and I have never understood,” Molale pointed out.

According to the OP minister, the constitution as it is and as amended, has provided for election of representatives of Ntlo ya Dikgosi.

With regard to Vision 2036 which was said to be calling for a constitutional review, Molale said the document is straight and forward and only states that “if there is a deficiency in implementing what is stated by the constitution that’s when we can review to improve”.

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Dingake talks about gay rights in tribute to Kirby

11th January 2022
Dingake

Former High Court Judge Professor Key Dingake has made his opinion known about gay rights in a glowing tribute to his retired former colleague Justice Ian Kirby.

Late last month a panel of Court of Appeal (CoA) led by Judge Kirby upheld a 2019 High Court ruling that decriminalised same-sex relations and stroke down two sections in the penal code. In his seminal judgment, Justice Kirby said these sections served only to incentivize law enforcement agents to become keyhole peepers and intruders into the private space of citizens.

In this case one Letsweletse Motshidiemang, a homosexual had instituted an application in the High Court challenging the constitutionality of Sections 164 (a) and 164 (c).

Paying tribute to Justice Kirby, Justice Dingake said overall the Kirby court was restrained and brilliant in its genre of conservatism. Judge Dingake said the case of Motshidiemang is evidence of the latter. “In a stroke of a pen, he ended the long and tortuous road to equality of gay people.

I was reminded of this long and tortuous road by a piece written by, Zackie Achmat, that indefatigable human right defender, recently, when he reflected on a union of gay men, one Khoi and the other a Dutch sailor, way back in 1735, who for their love for each other were brutally murdered,” Justice Dingake said.

He said in truth Botswana’s Constitution never denied the right to equality for gay men. It was society and the judges who did – some arguing that the time is not right to extend equality rights to gay persons – forgetting the self-evident truth that we are all born equal and that rights are not negotiable – not even with Judges.

“It ought to be remembered that the Motshidiemang case was similar to the case of Kanani that preceded it. Justice Kirby was part of the panel that sat in Kanani. In Kanani he agreed with the other Justices and refused to strike down the offensive legislation. The same legislation he struck down in Motshidiemang.

There is no doubt in my mind that Kanani was wrongly decided at the time, as several of my writings thereafter contended, having regard to the legal injunction to always interpret constitutional rights liberally and to treat the constitution as a living organism,” Justice Dingake wrote.

He added that in Kanani the Court of Appeal held back “our march to freedom for more than a decade – and perpetuated the suffering of gay persons as their being was criminalized based on an inaccurate and narrow reading of the Constitution”.

The truth of the matter is that, he said, our Constitution never denied gay persons the rights to equality and the right not to be discriminated against. “Some sections of society (may be the majority) and the bench did so. The bench did so because of the choices they exercised.

They chose to interpret the constitution restrictively, which is not permissible; they chose to be blown away by ‘public opinion’, which was not right, and they chose not read: ‘sexual orientation’, into section 15 of the constitution, which they could have done.”

Botswana’s Constitution he said commands that it be interpreted in a manner that saves humanity from the scourge of indignity – and with a sense of the future – and to secure the rights of generations yet to be born. It is always the duty of Judges to breathe life into the Constitution – and to effect the promise of the Constitution – by among other things rejecting the tyranny of the majority.

“Section 3, the principal section conferring fundamental human rights in Botswana has always been there. It was ignored in Kanani, and thankfully given effect to in Motshidiemang.  A big lesson here is the often overlooked fact: Judges matter! Who the Judge is may be life changing in any given matter.

When one considers the decision in Kanani and Motshidiemang, based on similar facts and the diametrically opposed conclusions, one may be given to think that may be: ‘the constitution is what the Judges say it is’, at any given time, as that brilliant luminary judge and scholar, Charles Evans Hughes (1862 -1948) LLD, once ruminated.”

Interestingly, Judge Dingake wrote about homosexuality more than 12 years ago in his book ‘Key Aspects of the Constitutional Law of Botswana’. Justice Dingake expressed his views on what was said then to what was said in the recent judgment.

In that book, he began the debate by stating that homosexual issues are not frequently debate in Botswana. “Empirically, the extent of homosexual tendencies is not known. In any event the phenomenon does not appear to be widespread,” the Judge wrote.

He said serious debate however cropped up sometime around August 1995, after president Robert Mugabe’s much publicized anti homosexuals speech at the Harare International Book Show. Even then, he said, the debate was only confined to a small circle of intellectuals, with the broader community generally contemptuous and not willing to engage in serious debate about the issue.

“Although the intellectual community is by no means unanimous, there are some voices, particularly emanating from the University of Botswana, that are calling for equal treatment for homosexuals. Despite the enormous capacity of such arguments to court controversy general response of the public was one of cynicism. This general lack of interest among the general populace contrasts sharply with the enthusiasm and interest on the issue, just across the border, in South Africa, where there are numerous homosexual associations,” he said.

He explained that the South African Constitution prohibits discrimination on the basis of sexual orientation, which has paved the way for homosexuals to be employed in the army, an advance that is unparalleled in modern democracies. He also explained that Botswana’s criminal law prohibits consenting adults of the same sex from having a sexual relationship, because that is said to be unnatural.

“Within the framework of Botswana’s Constitution there can be no doubt that the prohibition of sexual relationships between consenting male adults of the same sex is unconstitutional. No free society can, in this era, afford to treat its citizens differently on the basis that is patently irrational.

Every individual, is in terms of the Constitution equal before law and has the right of equal benefit of the law without discrimination. The legal recognition of homosexuals will confirm Botswana as a democratic country that is advancing with time.”

He added that it needs to be said that it is however fruitless to bury “our heads in the sand and hope the issue will disappear for good”. He concluded: “In time we will have to confront the issue head on. In time blind prejudice that stigmatizes homosexual relationships will have to stand up to rational scrutiny. It is advisable not too turn a blind eye to the pain of discrimination suffered by few of our fellow countrymen and women. In a democracy it is unacceptable that the majority should oppress the minority”.

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Electricity prices could go up

11th January 2022
BERA CEO - Rose Seretse

Consumers could pay more for electricity this year, as the government owned power producer, Botswana Power Corporation (BPC) plans to increase prices for electricity by 5% with effect from the 1st of April 2022.

BPC recent statement on tariff adjustment shows that with the planned 5% increase in electricity tariffs, electricity prices per kWh could increase by 111 thebe for household users, 226 thebe for government, 148 thebe for commercial businesses and 111 thebe for the mining sector.

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Botswana GDP in upward trajectory as economy recovers

11th January 2022
Peggy Serame & President Masisi

Botswana economy is registering growth as the country emerges from one of its worsts economic recessions since independence, following the outbreak of COVID-19 pandemic.

In late December 2021 Statistics Botswana released the country’s Gross Domestic Product (GDP) figures for the third quarter of 2021.

The nominal GDP for the third quarter of 2021 was P49, 260.5 million compared to P48, 684.0 million registered during the previous quarter. This represents a quarterly increase of 1.2 percent in nominal terms between the two periods.

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