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”.
Following their loss to the Duma Boko-led lobby in the Botswana National Front (BNF)’s national congress last month, some members of the party are reportedly considering forming a new political party.
According to members, the new party will be formed after they receive a tip-off that the BNF will do all it can to ensure that the aggrieved members do not participate in the 2024 national elections. This will reportedly done through a carefully orchestrated primary elections elimination campaign.
Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.
Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.
She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”
Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.
On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.
“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.
One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.
The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”
The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.
Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.
Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.
The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.
The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.