DO THE CRIMINAL LAWS OF BOTSWANA ADEQUATELY PROTECT VULNERABLE PEOPLE? PART 1
Before zeroing in attention on the above issue I need to make a public confession as a way of clearing my own conscience, once and for all, and allowing it to rest:
On my first day in Botswana I had the privilege to board the same bus with a beauty Queen. The lady’s attention-grabbing, eye-catching, hypnotic and mouth-watering waistline was flattery aside, indeed a marvel to watch.
Coupled with that, her skin –tight outfit was hugging her velvet body in such a way that we could enumerate all the contours of her guitar-shaped waistline. All and sundry on the bus were left gaping in painful admiration save for people of her own sex who were green with envy. In fact I always run short of the most descriptive superlatives to lay bare her physical attributes but all I can say is that she was like an angel prancing the corridors of heaven. As I was swept off my feet, I donated my heart and in no time we were head over heels in love.
When she reached her destination we both disembarked from the bus and headed for her mansion. Of course we had a nice moment together. At around 12 midnight the lady started manifesting some worrisome behavioral tendencies such as laughing in a weird fashion, leaking my hair and eating stray pieces of paper which were litteredstrewn all over the floor. I trembled like a badly prepared examination candidate before a statistics exam and my heart was threatening to rip open the ribcage .The noise alerted some neighboring women who rushed to the scene ,carrying pots and all sorts of cooking utensils, and attacking me for having had a carnal knowledge of an insane person. They effected a citizen’s arrest and I was taken to Bontleng police station for incarceration.
A month down the line I was dragged to court for trial. Luckily, I proved that on a balance of probabilities the lady had been normal on the day in question as she was talking a lot of sense on the bus. My own witnesses ,who also included the bus conductor ,convinced the honorable court that the facts were so(as I presented them).It was on that day that I ,for the first time ,came across the Latin term ‘lucidum intevellum’.I managed to escape liability through that technicality!.
The above is a classic case in which vulnerable people can be taken advantage of and the law does not seem to protect them. This paper will concentrate on the plight of the women, the youthful and the mentally challenged or retarded, with reference to the kind of protection afforded them by the criminal laws of Botswana and Zimbabwe ,respectively, as contained in the two countries’ penal codes. First, it is submitted that their local laws are superb but, just like any other product of human creation, they are neither God-given, water-proof nor stamped with God‘s seal of approval. Which is why even the old Testament Mosaic laws(Genesis ,Exodus ,Leviticus ,Numbers and Deuteronomy) ,which the Almighty Himself prepared ,had to be revised(amended) by Jesus Christ through the New law(Matthew 5:21 to7:1-12). Again it must be pointed out that the effectiveness of a legal system does not lie in its crafting but its enforcement. As such, a country might have all the best laws imaginable in the world but if the implementation is faulty it amounts to naught!.
In a bid to explore this topic in detail this presentation will be in different segments, parts 1 and 2.Part 1 deals with the codified nature of our criminal laws and also deals with the plight of the mentally challenged. Part 2 handles the youthful and the protection afforded to women, with specific reference to rape.
Probably our first weakness lies in the fact that our criminal laws are codified or written. The word ‘written’ is a technical one and means we have a single document, called the penal code that contains all the criminal laws of the country. That is far from being our most grievous fault!.Instead it lies in the fact that anything not contained in the penal code as a crime cannot be criminalized and , as such ,an ‘alleged offender’ cannot be punished even if he made the most heinous and hair-raising misconducts of them all.
We call this phenomenon the principle of legality and it is rooted in the following fundamental pillars: the ius acceptum rule(where there is no legal provision there is no crime) ,the ius certum rule (crime creating provisions must be crystal clear),the ius praevium rule (crime does not have retrospective effects),the ius strictum rule(courts must interpret crime creating provisions strictly) and the nulla poena sine lege(when imposing punishment the courts must take due regard the other afore-mentioned elements). See the first part of section 10:8 of the Botswana constitution.
The ius acceptum rule, in particular, which we shall also discuss in passing, features on section 3 of the Botswana penal code Chapter 08:01 which reads
‘Subject to the proviso to section 10(8) of the constitution, no person shall be liable to punishment by the common law for any act’. This version is in line with the same section, section 3, of the Zimbabwean Criminal Reform and Codification Act 9:23 of December 2004 in that the common law is expressly excluded.
However ,in the case of Zimbabwe the common law does not apply only ‘to the extent that this code (penal code) expressly or impliedly enacts ,amends ,modifies or repeals that law’.(section 3:1).Moreover , 3:2 provides that there is nothing that would stop the court ,when interpreting this code ,from obtaining guidance from judicial decisions and legal writings on relevant aspects of this Roman –Dutch law or the legal systems of other countries. In the case of Zimbabwe, therefore, this exclusion is not automatic but qualified! And that naturally follows that the dark side of codified criminal laws can be felt more in the former than latter country.
Accordingly, if there is no legal provision in the penal code one cannot be convicted of a crime even if his conduct is wrong from a moral standpoint .Which is why in an unreported case at Molepolole some men found in possession of human parts could not be convicted of a crime because the penal code is silent about that conduct. Having said that ,perpetrators of ‘wrongs’ against other people ,including the vulnerable such as the mentally handicapped or challenged and the youthful cannot, by extension, be punished and that is a gross miscarriage of justice!.The Zimbabwean judges, in sharp contrast, would have fallen back on the common law in handling the Molepolole case, for example.
According to section 10 of the Botswana penal code every person is presumed to be of sound mind ,and to have been of sound mind at any time which comes in question ,until the contrary is proved” and section 11 provides that he can only escape liability ,if because of that mental illness ,he was without the criminal capacity. This section leads us to the emotive provision pertaining to the defilement of imbeciles, idiots and the insane. For the purposes of this article we shall focus on the insane only as the provision is very broad in scope.
Section 148 of the Botswana penal code is worded
‘any person who, knowing another person to be an idiot or imbecile, has or attempts to have unlawful carnal knowledge of that person under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person against whom the offence was committed was an idiot, is guilty and liable to imprisonment for a term not exceeding 14 years, with or without corporal punishment”.
The inclusion of the word ‘unlawful ‘before ‘carnal knowledge’ is not by accident but by design and to produce an intended effect. Impliedly there are instances when that intimacy may be admissible. In what circumstances could it be lawful to be intimate with such a person?. The concept ‘unlawful ‘, per se, means ‘without a ground of justification’ .A ground of justification is therefore a form of defense that is capable of making conduct that is ordinarily unlawful to become lawful eg consent, private defense, necessity, right of chastisement etc.
I have allowed my imagination to wonder and drewdeduced consent as a possible ground of justification in this context. This consent might have been obtained or given at a specific point in time, before and during the act, when the insane person was temporarily normal and this period is known in Latin as the Lucidum intevellum. (Remember the scenario in the introductory phase of this writing).In this case the idiot or the insane has not been exploited or taken advantage of since he was is in full control of his mental faculties and denying him inalienable natural rights such as intimacy or freedom of association would actually be punitive to him. Surely it will be a case of unfair discrimination and therefore unconstitutional.
Alternatively, it might apply within a marriage institution in which the currently mentally ill spouse was initially of sound mind but developed that condition after marriage. Accordingly they cannot abstain given that consortium Omni vitae are one of the invariable consequences of a marriage. Yes, it is submitted that such a marriage is voidable, and not void ab initio, at the instance of the aggrieved party, who in this case is the normal person who has the option to either stay put and endure or chicken out.
The major flaw of that provision is the inclusion of the term ‘knowingly ‘in that crime. To make matters worse, the interpretation section does not help much in defining the word ‘knowingly’ as section 2(1)(b) reads
‘Knowingly used in connection with any term denoting uttering or using, implies knowledge of the character of the thing uttered or used’
Of course, it is an integral part of intention and intention refers to ‘knowledge plus the will’ .This ‘knowledge’ is of the act itself and that the act is unlawful. In this context the alleged offender would need to know that he is being intimate with an imbecile or the insane (the act) and that this intimacy is unlawful (knowledge of unlawfulness).The ‘will’ refers to the wish, desire or want.
Assuming that the legislators had in mind the concept intention the problem is that anyone can easily claim that he was not aware of the fact that the person under debate had such defects. Worse still, the subjective test, used to gauge the existence or otherwise of intention, as I see it, and I am sure lawyers would testify, is arguably the most difficult one. Intention can be direct (dolus directus),indirect(dolus indirectus)or in the form of the dolus eventualis.
Suppose one did not know but was negligent in failing to know in circumstances in which a normal person, in his own circumstances, would have known that the victim was an idiot or insane?
Would he escape liability? If liable what crime would that be?.It must be borne in mind that the mens rea for the crimes of rape and defilement is intention and not negligence. The Latin concept ‘mens rea’ means having a guiltyblameworthy state of mind and this can find expression in either dolus (intention) or culpa (negligence).
The punitive measure, for that offence, according to the Botswana criminal laws, is not deterrent enough as the maximum period of imprisonment is 14 years, with or without corporal punishment.
The concluding remark is that flaws which are inherent in our criminal laws need to be amended if they are to adequately protect vulnerable members of our communities. It has also been noted that our criminal laws have very strong points also and these strong areas by far outweigh the weak points.
Opinions
IEC Disrespects Batswana: A Critical Analysis
The Independent Electoral Commission (IEC) has recently faced significant criticism for its handling of the voter registration exercise. In this prose I aim to shed light on the various instances where the IEC has demonstrated a lack of respect towards the citizens of Botswana, leading to a loss of credibility. By examining the postponements of the registration exercise and the IEC’s failure to communicate effectively, it becomes evident that the institution has disregarded its core mandate and the importance of its role in ensuring fair and transparent elections.
Incompetence or Disrespect?
One possible explanation for the IEC’s behavior is sheer incompetence. It is alarming to consider that the leadership of such a critical institution may lack the understanding of the importance of their mandate. The failure to communicate the reasons for the postponements in a timely manner raises questions about their ability to handle their responsibilities effectively. Furthermore, if the issue lies with government processes, it calls into question whether the IEC has the courage to stand up to the country’s leadership.
Another possibility is that the IEC lacks respect for its core clients, the voters of Botswana. Respect for stakeholders is crucial in building trust, and clear communication is a key component of this. The IEC’s failure to communicate accurate and complete information, despite having access to it, has fueled speculation and mistrust. Additionally, the IEC’s disregard for engaging with political parties, such as the Umbrella for Democratic Change (UDC), further highlights this disrespect. By ignoring the UDC’s request to observe the registration process, the IEC demonstrates a lack of regard for its partners in the electoral exercise.
Rebuilding Trust and Credibility:
While allegations of political interference and security services involvement cannot be ignored, the IEC has a greater responsibility to ensure its own credibility. The institution did manage to refute claims by the DISS Director that the IEC database had been compromised, which is a positive step towards rebuilding trust. However, this remains a small glimmer of hope in the midst of the IEC’s overall disregard for the citizens of Botswana.
To regain the trust of Batswana, the IEC must prioritize respect for its stakeholders. Clear and timely communication is essential in this process. By engaging with political parties and addressing their concerns, the IEC can demonstrate a commitment to transparency and fairness. It is crucial for the IEC to recognize that its credibility is directly linked to the trust it garners from the voters.
Conclusion:
The IEC’s recent actions have raised serious concerns about its credibility and respect for the citizens of Botswana. Whether due to incompetence or a lack of respect for stakeholders, the IEC’s failure to communicate effectively and handle its responsibilities has damaged its reputation. To regain trust and maintain relevance, the IEC must prioritize clear and timely communication, engage with political parties, and demonstrate a commitment to transparency and fairness. Only by respecting the voters of Botswana can the IEC fulfill its crucial role in ensuring free and fair elections.
Opinions
Fuelling Change: The Evolving Dynamics of the Oil and Gas Industry
The Oil and Gas industry has undergone several significant developments and changes over the last few years. Understanding these developments and trends is crucial towards better appreciating how to navigate the engagement in this space, whether directly in the energy space or in associated value chain roles such as financing.
Here, we explore some of the most notable global events and trends and the potential impact or bearing they have on the local and global market.
Governments and companies around the world have been increasingly focused on transitioning towards renewable energy sources such as solar and wind power. This shift is motivated by concerns about climate change and the need to reduce greenhouse gas emissions. Africa, including Botswana, is part of these discussions, as we work to collectively ensure a greener and more sustainable future. Indeed, this is now a greater priority the world over. It aligns closely with the increase in Environmental, Social, and Governance (ESG) investing being observed. ESG investing has become increasingly popular, and many investors are now looking for companies that are focused on sustainability and reducing their carbon footprint. This trend could have significant implications for the oil and fuel industry, which is often viewed as environmentally unsustainable. Relatedly and equally key are the evolving government policies. Government policies and regulations related to the Oil and Gas industry are likely to continue evolving with discussions including incentives for renewable energy and potentially imposing stricter regulations on emissions.
The COVID-19 pandemic has also played a strong role. Over the last two years, the pandemic had a profound impact on the Oil and Gas industry (and fuel generally), leading to a significant drop in demand as travel and economic activity slowed down. As a result, oil prices plummeted, with crude oil prices briefly turning negative in April 2020. Most economies have now vaccinated their populations and are in recovery mode, and with the recovery of the economies, there has been recovery of oil prices; however, the pace and sustainability of recovery continues to be dependent on factors such as emergence of new variants of the virus.
This period, which saw increased digital transformation on the whole, also saw accelerated and increased investment in technology. The Oil and Gas industry is expected to continue investing in new digital technologies to increase efficiency and reduce costs. This also means a necessary understanding and subsequent action to address the impacts from the rise of electric vehicles. The growing popularity of electric vehicles is expected to reduce demand for traditional gasoline-powered cars. This has, in turn, had an impact on the demand for oil.
Last but not least, geopolitical tensions have played a tremendous role. Geopolitical tensions between major oil-producing countries can and has impacted the supply of oil and fuel. Ongoing tensions in the Middle East and between the US and Russia could have an impact on global oil prices further, and we must be mindful of this.
On the home front in Botswana, all these discussions are relevant and the subject of discussion in many corporate and even public sector boardrooms. Stanbic Bank Botswana continues to take a lead in supporting the Oil and Gas industry in its current state and as it evolves and navigates these dynamics. This is through providing financing to support Oil and Gas companies’ operations, including investments in new technologies. The Bank offers risk management services to help oil and gas companies to manage risks associated with price fluctuations, supply chain disruptions and regulatory changes. This includes offering hedging products and providing advice on risk management strategies.
Advisory and support for sustainability initiatives that the industry undertakes is also key to ensuring that, as companies navigate complex market conditions, they are more empowered to make informed business decisions. It is important to work with Oil and Gas companies to develop and implement sustainability strategies, such as reducing emissions and increasing the use of renewable energy. This is key to how partners such as Stanbic Bank work to support the sector.
Last but not least, Stanbic Bank stands firmly in support of Botswana’s drive in the development of the sector with the view to attain better fuel security and reduce dependence risk on imported fuel. This is crucial towards ensuring a stronger, stabler market, and a core aspect to how we can play a role in helping drive Botswana’s growth. Continued understanding, learning, and sustainable action are what will help ensure the Oil and Gas sector is supported towards positive, sustainable and impactful growth in a manner that brings social, environmental and economic benefit.
Loago Tshomane is Manager, Client Coverage, Corporate and Investment Banking (CIB), Stanbic Bank Botswana
Opinions
Brands are important
So, the conclusion is brands are important. I start by concluding because one hopes this is a foregone conclusion given the furore that erupts over a botched brand. If a fast food chef bungles a food order, there’d be possibly some isolated complaint thrown. However, if the same company’s marketing expert or agency cooks up a tasteless brand there is a country-wide outcry. Why? Perhaps this is because brands affect us more deeply than we care to understand or admit. The fact that the uproar might be equal parts of schadenfreude, black twitter-esque criticism and, disappointment does not take away from the decibel of concern raised.
A good place to start our understanding of a brand is naturally by defining what a brand is. Marty Neumier, the genius who authored The Brand Gap, offers this instructive definition – “A brand is a person’s gut feel about a product or service”. In other words, a brand is not what the company says it is. It is what the people feel it is. It is the sum total of what it means to them. Brands are perceptions. So, brands are defined by individuals not companies. But brands are owned by companies not individuals. Brands are crafted in privacy but consumed publicly. Brands are communal. Granted, you say. But that doesn’t still explain why everybody and their pet dog feel entitled to jump in feet first into a brand slug-fest armed with a hot opinion. True. But consider the following truism.
Brands are living. They act as milestones in our past. They are signposts of our identity. Beacons of our triumphs. Indexes of our consumption. Most importantly, they have invaded our very words and world view. Try going for just 24 hours without mentioning a single brand name. Quite difficult, right? Because they live among us they have become one of us. And we have therefore built ‘brand bonds’ with them. For example, iPhone owners gather here. You love your iPhone. It goes everywhere. You turn to it in moments of joy and when we need a quick mood boost. Notice how that ‘relationship’ started with desire as you longingly gazed upon it in a glossy brochure. That quickly progressed to asking other people what they thought about it. Followed by the zero moment of truth were you committed and voted your approval through a purchase. Does that sound like a romantic relationship timeline. You bet it does. Because it is. When we conduct brand workshops we run the Brand Loyalty ™ exercise wherein we test people’s loyalty to their favourite brand(s). The results are always quite intriguing. Most people are willing to pay a 40% premium over the standard price for ‘their’ brand. They simply won’t easily ‘breakup’ with it. Doing so can cause brand ‘heart ache’. There is strong brand elasticity for loved brands.
Now that we know brands are communal and endeared, then companies armed with this knowledge, must exercise caution and practise reverence when approaching the subject of rebranding. It’s fragile. The question marketers ought to ask themselves before gleefully jumping into the hot rebranding cauldron is – Do we go for an Evolution (partial rebrand) or a Revolution(full rebrand)? An evolution is incremental. It introduces small but significant changes or additions to the existing visual brand. Here, think of the subtle changes you’ve seen in financial or FMCG brands over the decades. Evolution allows you to redirect the brand without alienating its horde of faithful followers. As humans we love the familiar and certain. Change scares us. Especially if we’ve not been privy to the important but probably blinkered ‘strategy sessions’ ongoing behind the scenes. Revolutions are often messy. They are often hard reset about-turns aiming for a total new look and ‘feel’.
Hard rebranding is risky business. History is littered with the agony of brands large and small who felt the heat of public disfavour. In January 2009, PepsiCo rebranded the Tropicana. When the newly designed package hit the shelves, consumers were not having it. The New York Times reports that ‘some of the commenting described the new packaging as ‘ugly’ ‘stupid’. They wanted their old one back that showed a ripe orange with a straw in it. Sales dipped 20%. PepsiCo reverted to the old logo and packaging within a month. In 2006 Mastercard had to backtrack away from it’s new logo after public criticism, as did Leeds United, and the clothing brand Gap. AdAge magazine reports that critics most common sentiment about the Gap logo was that it looked like something a child had created using a clip-art gallery. Botswana is no different. University of Botswana had to retreat into the comfort of the known and accepted heritage strong brand. Sir Ketumile Masire Teaching Hospital was badgered with complaints till it ‘adjusted’ its logo.
So if the landscape of rebranding is so treacherous then whey take the risk? Companies need to soberly assess they need for a rebrand. According to the fellows at Ignyte Branding a rebrand is ignited by the following admissions :
Our brand name no longer reflects our company’s vision.
We’re embarrassed to hand out our business cards.
Our competitive advantage is vague or poorly articulated.
Our brand has lost focus and become too complex to understand. Our business model or strategy has changed.
Our business has outgrown its current brand.
We’re undergoing or recently underwent a merger or acquisition. Our business has moved or expanded its geographic reach.
We need to disassociate our brand from a negative image.
We’re struggling to raise our prices and increase our profit margins. We want to expand our influence and connect to new audiences. We’re not attracting top talent for the positions we need to fill. All the above are good reasons to rebrand.
The downside to this debacle is that companies genuinely needing to rebrand might be hesitant or delay it altogether. The silver lining I guess is that marketing often mocked for its charlatans, is briefly transformed from being the Archilles heel into Thanos’ glove in an instant.
So what does a company need to do to safely navigate the rebranding terrain? Companies need to interrogate their brand purpose thoroughly. Not what they think they stand for but what they authentically represent when seen through the lens of their team members. In our Brand Workshop we use a number of tools to tease out the compelling brand truth. This section always draws amusing insights. Unfailingly, the top management (CEO & CFO)always has a vastly different picture of their brand to the rest of their ExCo and middle management, as do they to the customer-facing officer. We have only come across one company that had good internal alignment. Needless to say that brand is doing superbly well.
There is need a for brand strategies to guide the brand. One observes that most brands ‘make a plan’ as they go along. Little or no deliberate position on Brand audit, Customer research, Brand positioning and purpose, Architecture, Messaging, Naming, Tagline, Brand Training and may more. A brand strategy distils why your business exists beyond making money – its ‘why’. It defines what makes your brand what it is, what differentiates it from the competition and how you want your customers to perceive it. Lacking a brand strategy disadvantages the company in that it appears soul-less and lacking in personality. Naturally, people do not like to hang around humans with nothing to say. A brand strategy understands the value proposition. People don’t buy nails for the nails sake. They buy nails to hammer into the wall to hang pictures of their loved ones. People don’t buy make up because of its several hues and shades. Make up is self-expression. Understanding this arms a brand with an iron clad clad strategy on the brand battlefield.
But perhaps you’ve done the important research and strategy work. It’s still possible to bungle the final look and feel. A few years ago one large brand had an extensive strategy done. Hopes were high for a top tier brand reveal. The eventual proposed brand was lack-lustre. I distinctly remember, being tasked as local agency to ‘land’ the brand and we outright refused. We could see this was a disaster of epic proportions begging to happen. The brand consultants were summoned to revise the logo. After a several tweaks and compromises the brand landed. It currently exists as one of the country’s largest brands. Getting the logo and visual look right is important. But how does one know if they are on the right path? Using the simile of a brand being a person – The answer is how do you know your outfit is right? It must serve a function, be the right fit and cut, it must be coordinated and lastly it must say something about you. So it is possible to bath in a luxurious bath gel, apply exotic lotion, be facebeat and still somehow wear a faux pas outfit. Avoid that.
Another suggestion is to do the obvious. Pre-test the logo and its look and feel on a cross section of your existing and prospective audience. There are tools to do this. Their feedback can save you money, time and pain. Additionally one must do another obvious check – use Google Image to verify the visual outcome and plain Google search to verify the name. These are so obvious they are hopefully for gone conclusions. But for the brands that have gone ahead without them, I hope you have not concluded your brand journeys as there is a world of opportunity waiting to be unlocked with the right brand strategy key.
Cliff Mada is Head of ArmourGetOn Brand Consultancy, based in Gaborone and Cape Town.
cliff@armourgeton.com