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A TRIBUTE TO JUSTICE ANTONIO SCALIA OF THE U.S. SUPREME COURT

The passing on of Justice Scalia of the US Supreme Court who was renowned for his conservatism affords one an opportunity of paying tribute to his life at the bench and also to interrogate the philosophy of law that informed his decisions. On Saturday the 13th of February, 2016, the US judiciary, and the entire, nation lost one of the most highly respected justices of the Supreme Court, regarded by many as a fierce intellectual force of the right wing in the Supreme Court.

His departure and consequent replacement has sparked fierce debate amongst the conservatives and liberals in that country.

The conservatives have called upon President Obama to refrain from nominating a new justice to replace Justice Scalia for fear that he will replace him with a liberal justice who may tilt the balance of the US Supreme Court jurisprudence – on major constitutional issues – to the left. These forces argue that the tradition in the US is that a lame duck President – a president who is on his way out, should not nominate a new justice in the dying days of his tenure. However, President Obama is adamant that he intends to fulfill his constitutional obligations. With the departure of Justice Scalia, the US Supreme Court is evenly balanced in terms of ideological outlook.

Justice Anthony Kennedy is considered a vacillating justice, who often tours the middle path, and therefore unpredictable. His record shows that in a majority of cases, he votes with the right although on occasions he has voted with the left. If history is anything to go by, the Court is set to continue being divided on major constitutional issues touching on the rights of LGTBQ’s, abortion, affirmative action and immigration laws. Justice Antonio Scalia was born in 1936, in Trenton, New Jersey. He was the only child of Mr. and Mrs. Scalia.

His father emigrated from Sicily as a teenager to the United States of America. In 1953, he enrolled at George Town University in Washington DC where he graduated with a bachelor’s degree in History. He is a Harvardian – having graduated at the prestigious Harvard Law School. In 1967, he took up an academic post as Professor of Law at the University of Virginia Law School.

Justice Scalia has also taught law at the University of Chicago Law School. He was appointed to the Supreme Court in 1986 by President Reagan and soon thereafter earned a reputation as a constitutional textualist who believed that the duty of the court in interpreting the Constitution is to give effect to the intention of its framers. This judicial philosophy was called originalism. It is an interpretation method that seeks to hold the Constitution hostage to those departed.

This method has no traction with modern constitutional lawyers. This brought him in confrontation with liberals who believed that the Constitution is a living and breathing organism that allows the courts to interpret it expansively and in a manner that is consistent with the contemporary values of the society. Justice Scalia believed that an expansive and generous interpretation allowed judges the opportunity to legislate and often to be the overlords of the Constitution.

He took the view that to regard the Constitution as a living document allowed courts to facilitate change, which is not their duty. He abhorred judicial activism with a passion believing in the fairy tale that judges do not make law, when in actual fact judges are the best lawmakers. He was a firm believer in the doctrine of stare decisis – which meant that the principles derived from previous decisions formed a body of controlling law for future decisions.

He derided liberals for striving for ‘justice’ in a case, in the light of their own philosophies and socio economic values and in the process according settled legal principles little or no weight. According to Justice Scalia, judicial power should never be exercised for the purposes of giving effect to the will of the judge, but rather that of the legislature, the primary lawmaker.

It is this approach that defined Justice Scalia as a conservative – some would say an ultra-conservative. It seems to me that judges, like other mortals, need to view complex constitutional issues with a broader compass and a more sharper microscopic lens – and of course with some measure of humility – the conviction that one human mind can embrace but a tiny fraction of all judicial wisdom and knowledge. Conservative to the core, he occasionally veered to the left.

He surprised many members of the legal fraternity when he voted to uphold free speech in the Texas flag burning case. He acknowledged the discomfort in seeing the flag burnt, but could not fathom those who wanted to punish the flag burners. He recognized that the ability to speak one’s mind, to challenge authority without fear of recrimination by the State is the essential distinction between life in a free country and in a dictatorship.

He understood that although the flag was a fundamental symbol of American nationhood, a proper constitutional reasoning requires the courts to make decisions they do not necessarily like, but that must be taken because they are right – and that to this extent, it is imperative that the flag protects those who hold it in contempt. Justice Scalia weighed in his conservative views in the case of Bush v Gove and literally helped hand over the 2000 election victory to President George Bush. Many constitutional scholars have criticized the decision as wrongly decided.

In the dissenting judgment of Justice Stevens, with whom Justice Ginsburg and Justice Breyer agreed with, the majority decision, in essence discredited the independence and impartiality of the judiciary. He concluded that: “Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however is certain. Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

In June 2015, when the Supreme Court upheld the Obama care, Scalia, was scathing against the majority decision which allowed the federal government to provide nationwide tax subsidies to help Americans buy health insurance, accusing the majority of twisting the meaning of plain words, saying in the course of his dissent: “the court’s decisions reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct supposed flaw in statutory machinery.

That philosophy ignores the American people’s decision to give Congress all legislative powers enumerated in the Constitution.” Justice Scalia was equally scathing in his dissent in the 2015 landmark case in which the Supreme Court upheld the right to same sex marriage by a majority of one. He came hard on the majority decision, writing that the ruling was “at odds not only with the Constitution, but with the principles upon which our nation was built”.

Over the many years of his extra-ordinary judicial career, Justice Scalia was the very epitome of conservatism. Some traces of this can be discerned from his upbringing, for the truth is that no judge ascends to the bench as an ideological virgin, sometimes personal and professional experiences may influence the colour and texture of one’s jurisprudence.

The tragedy though of conservative/liberal contestation over what the task of judging entails is often characterized by self-serving criticism; the right accusing the left of judicial activism – shaping the law in accordance with the judges socio-economic views or philosophy; whilst history would testify that conservative elements, just like liberals, may occasion violence to plain words to give effect to their world outlook.

The truth of the matter though is that in each of us, judges, there is a stream of tendency; call it philosophy for lack of better word, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other ordinary mortals. All their life experiences which they cannot recognize or name have some influence on how they tackle jurisprudential issues of our time – all these constitutes, as it has often been said, “the total push and pressure of the cosmos,” which, when reasons are nicely balanced, must determine where choice shall fall. It is incontestable that our background constitutes a critical context to our thinking process – for we may try to see things as objectively as we may wish to, but the bottom line is that we can never process a problem, with any mind other than our own.

It can hardly be contested that in the life of the mind, there is a tendency towards the reproduction of the essence of the self. Liberals do not consider legal interpretation to be a mechanical enterprise. They consider that the ultimate objective of law should be the welfare of society. Perhaps the most significant advance in the modern science of law is the change from analytical to the functional attitude.

In the enterprise of judging, justice must be the overarching objective that must direct our reasoning process. In conclusion and in reflecting on the life of Justice Scalia and his philosophy of law and the debates it has generated over the years, it seems to me that logic, history, values, and social welfare are critical considerations in judicial reasoning.

As to which of the above considerations should predominate in any given case, must depend largely upon the judges outlook, knowledge of the law (for the level of jurisprudential output is a product of knowledge borne of intense reading and study) and his/her commitment to justice. In conclusion, whilst Justice Scalia, and many in his ideological camp subscribe to the view that judges do not make law; the truth is that judges make law in the course of interpretation. A provision in a Statute or Constitution may appear clear and straightforward – and until construed, is not really law, it is perhaps “ostensible” law.

There is therefore merit, philosophically, in the view that, real law is not found anywhere except in a judgment of the court. In that view, even past decisions are not law because the courts may overrule them. Men and women go about their business from day to day, and govern their conduct by an ignis fatuus (something deluding or misleading). The rules to which they yield obedience are in many respects “ostensible” law; for law never is, but is always about to be – unless construed is not real law.

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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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Opinions

Our Strength is our Unity

18th March 2022
Craig-Cloud

Putin Chose War.  We Remain United with Ukraine.

U.S. Ambassador Craig L. Cloud

This is a dangerous moment for Europe and for freedom-loving people around the world.  By launching his brutal assault on the people of Ukraine, Vladimir Putin has also committed an assault on the principles that uphold global peace and democracy.  But the people of Ukraine are resilient.

They’ve had a democracy for decades, and their bravery is inspiring the world.  The United States, together with our Allies and partners across the globe, will continue to support the Ukrainian people as they defend their country.  By choosing to pay for a war instead of investing in the needs of Russians, Putin’s invasion of Ukraine will be a strategic failure for the Kremlin and ravage the future of the Russian people.

When the history of this era is written, it will show that Putin’s choice to launch an unprovoked, unjust, and premeditated attack left the West more unified and Russia exponentially weaker.

United in Our Response

This will not end well for Vladimir Putin.  Together, the United States and our Allies and partners are taking action to hold Russia accountable.  As a result of unprecedented global sanctions coordination, the United States, the United Kingdom, the European Union, Japan, and Canada have removed selected Russian banks from the SWIFT messaging system and imposed restrictive measures on the Russian Central Bank.

President Biden announced sweeping financial sanctions and stringent export controls that will damage Russia’s economy, financial system, and access to cutting-edge technology.  After Putin began his invasion, the ruble hit its weakest point in history, and the Russian stock market plunged.

Along with the United Kingdom and European Union, the United States imposed sanctions on the architects of this war, including Putin himself.

By moving in close coordination with a powerful coalition of Allies and partners representing more than half of the global economy, we have magnified the impact of our actions to impose maximum costs on Putin and his regime.  In response to Putin’s war of choice, we will limit Russia’s ability to do business in U.S. dollars.

We will stunt Russia’s ability to finance and grow its military.  We will impair Russia’s ability to compete in the global economy.  And we are prepared to do more.

In addition to economic penalties, this week President Biden authorized an additional $1 billion over the $350 million of security assistance he recently approved, and a $650 million in 2021, to immediately help Ukraine defend itself, bringing America’s total security assistance to Ukraine over the past year to $2 billion.

We also stand ready to defend our NATO Allies.  President Biden has coordinated with Allied governments to position thousands of additional forces in Germany and Poland as part of our commitment to NATO’s collective defense.

He authorized the deployment of ground and air forces already stationed in Europe to NATO’s eastern and southeastern flanks:  Estonia, Latvia, Lithuania, Poland, and Romania.  Our Allies have also added their own forces and capabilities to ensure our collective defense.  There should be no doubt about the readiness of the greatest military Alliance in the history of the world:  NATO is more united than ever.

The United States has also coordinated with major oil-producing and consuming countries to underscore our common interest in securing global energy supplies.  We are working with energy companies to surge their capacity to supply energy to the market, particularly as prices increase.

Putin’s Unprovoked and Premeditated War

This was an attack that Vladimir Putin has planned for a long time.  He methodically moved more than 150,000 troops and military equipment to Ukraine’s border.  He moved blood supplies into position and built field hospitals, demonstrating his intentions all along.

He rejected every good-faith effort by the United States and our Allies and partners to address his fabricated security concerns and to avoid needless conflict and human suffering by engaging in diplomacy and dialogue.

Putin executed his playbook exactly as we had warned he would do.  We saw Russia’s proxies increase their shelling in the Donbas.  We saw the Russian government launch cyber-operations against Ukraine.  We saw staged political theater in Moscow and heard outlandish and baseless claims made about Ukraine in an attempt to justify Russia’s aggression.

Russia continues to justify its military aggression by falsely claiming the need to stop “genocide” in Ukraine – despite there being no evidence that genocide was occurring there.  We saw Russia use these tactics before when they invaded Ukraine in 2014 and Georgia in 2008.

And then, at almost the very same moment the United Nations Security Council was meeting to stand up for Ukraine’s sovereignty and forestall disaster, Putin launched his invasion in violation of international law.  Missiles began to rain down, striking historic cities across Ukraine.  Then came air raids, columns of tanks, and battalions of troops, all riding a renewed wave of disinformation and outright lies.

We have been transparent with the world.  We declassified our intelligence about Russia’s plans so there could be no confusion and no cover up.  Putin is the aggressor.  Putin chose this war.  And now his people will bear the consequences of his decision to invest in war rather than in them.

Transatlantic Unity and Resolve Stronger Than Ever

Putin’s goal of dividing the West has failed.  In the face of one of the most significant challenges to European security and democratic ideals since World War II, the United States and our Allies and partners have joined together in solidarity.  We have united, coordinating intensively to engage as one with Russia and Ukraine, provided assistance to Ukraine, developed a broad response, and reaffirmed our commitment to NATO.

Putin has failed to divide us.  Putin has failed to undermine our shared belief in the fundamental right of sovereign nations to choose their destiny and their allies.  And Putin will fail to erase the proud nation of Ukraine.

The next few days, weeks, and months will be incredibly difficult for the people of Ukraine.  Putin has unleashed great suffering on them.  But the Ukrainian people have known 30 years of independence, and they have repeatedly shown they will not tolerate anyone who tries to take their country backwards.

The world is watching this conflict closely, and if Russian forces commit atrocities, we will explore all international mechanisms that could be used to bring those responsible – whether members of the military or their civilian leadership – to account.

Putin’s aggression against Ukraine will cost Russia profoundly, both economically and strategically.  The Russian people deserve better from their government than the immense cost to their future that this invasion has precipitated.

Liberty, democracy, and human dignity are forces far more powerful than fear and oppression.  In the contest between democracy and autocracy, between sovereignty and subjugation, make no mistake:  Freedom will prevail.

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