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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.
 

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Opinions

Can we cure ourselves from the cancer of corruption?

28th October 2020
DCEC DIRECTOR: Tymon Katholo

Bokani Lisa Motsu

“One of the saddest lessons of history is this: If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle. We’re no longer interested in finding out the truth. The bamboozle has captured us. It’s simply too painful to acknowledge, even to ourselves, that we’ve been taken. Once you give a charlatan power over you, you almost never get it back.” Carl Sagan

Corruption is a heavy price to pay. The clean ones pay and suffer at the mercy of people who cannot have enough. They always want to eat and eat so selfishly like a bunch of ugly masked shrews. I hope God forgives me for ridiculing his creatures, but that mammal is so greedy. But corruption is not the new kid on the block, because it has always been everywhere.

This of course begs the question, why that is so? The common answer was and still is – abuse and misuse of power by those in power and weak institutions, disempowered to control the leaders. In 1996, the then President of The World Bank, James D. Wolfensohn named the ‘C-Word’ for the first time during an annual meeting of the Bretton Woods Institutions. A global fight against corruption started. Transparency International began its work. Internal and external audits mushroomed; commissions of inquiry followed and ever convoluted public tender procedures have become a bureaucratic nightmare to the private sector, trying to fight red tape.

The result is sobering corruption today is worse than it was 25 years ago. There is no denying that strong institutions help, but how does it come that in the annual Transparency International Ranking the same group of countries tend to be on the top while another group of countries, many African among them, tend to be on the bottom? Before one jumps to simple and seductive conclusions let us step back a moment.

Wolfensohn called corruption a cancer that destroys economies like a cancer destroys a body. A cancer is, simplified, good cells in a body gone bad, taking control of more and more good cells until the entire body is contaminated and eventually dies. So, let us look at the good cells of society first: they are family ties, clan and tribe affiliation, group cohesion, loyalty, empathy, reciprocity.

Most ordinary people like the reader of these lines or myself would claim to share such values. Once we ordinary people must make decisions, these good cells kick in: why should I hire a Mrs. Unknown, if I can hire my niece whose strengths and weaknesses I know? If I hire the niece, she will owe me and support my objectives.

Why should I purchase office furniture from that unknown company if I know that my friend’s business has good quality stuff? If I buy from him, he will make an extra effort to deliver his best and provide quality after sales service? So, why go through a convoluted tender process with uncertain outcome? In the unlikely case my friend does not perform as expected, I have many informal means to make him deliver, rather than going through a lengthy legal proceeding?

This sounds like common sense and natural and our private lives do work mostly that way and mostly quite well.

The problem is scale. Scale of power, scale of potential gains, scale of temptations, scale of risk. And who among us could throw the first stone were we in positions of power and claim not to succumb to the temptations of scale? Like in a body, cancer cells start growing out of proportion.

So, before we call out for new leaders – experience shows they are rarely better than the old ones – we need to look at ourselves first. But how easy is that? If I were the niece who gets the job through nepotism, why should I be overly critical? If I got a big furniture contract from a friend, why should I spill the beans? What right do I have to assume that, if I were a president or a minister or a corporate chief procurement officer I would not be tempted?

This is where we need to learn. What is useful, quick, efficient, and effective within a family or within a clan or a small community can become counterproductive and costly and destructive at larger corporate or national scale. Our empathy with small scale reciprocity easily permeates into complacency and complicity with large scale corruption and into an acquiescence with weak institutions to control it.

Our institutions can only be as strong as we wish them to be.

I was probably around ten years old and have always been that keen enthusiastic child that also liked to sing the favourite line of, ‘the world will become a better place.’  I would literally stand in front of a mirror and use my mom’s torch as a mic and sing along Michael Jackson’s hit song, ‘We are the world.’

Despite my horrible voice, I still believed in the message.  Few years later, my annoyance towards the world’s corrupt system wonders whether I was just too naïve. Few years later and I am still in doubt so as to whether I should go on blabbing that same old boring line. ‘The world is going to be a better place.’ The question is, when?

The answer is – as always: now.

This is pessimistic if not fatalistic – I challenge Sagan’s outlook with a paraphrased adage of unknown origin: Some people can be bamboozled all of the time, all people can be bamboozled some of the time, but never will all people be bamboozled all of the time.

We, the people are the only ones who can heal society from the cancer of corruption. We need to understand the temptation of scale and address it. We need to stop seeing ourselves just a victim of a disease that sleeps in all of us. We need to give power to the institutions that we have put in place to control corruption: parliaments, separation of power, the press, the ballot box. And sometimes we need to say as a niece – no, I do not want that job as a favour, I want it because I have proven to be better than other contenders.

It is going to be a struggle, because it will mean sacrifices, but sacrifices that we have chosen, not those imposed on us.

Let us start today.

*Bokani Lisa Motsu is a student at University of Botswana

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Opinions

Accounting Officers are out of touch with reality

19th October 2020

Parliament, the second arm of State through its parliamentary committees are one of Botswana’s most powerful mechanisms to ensure that government is held accountable at all times. The Accounting Officers are mostly Permanent Secretaries across government Ministries and Chief Executive Officers, Director Generals, Managing Directors of parastatals, state owned enterprises and Civil Society.

So parliament plays its oversight authority via the legislators sitting on a parliamentary committee and Accounting Officers sitting in the hot chair.  When left with no proper checks and balances, the Executive is prone to abuse the arrangement and so systematic oversight of the executive is usually carried out by parliamentary committees.  They track the work of various government departments and ministries, and conduct scrutiny into important aspects of their policy, direction and administration.

It is not rocket science that effective oversight requires that committees be totally independent and able to set their own agendas and have the power to summon ministers and top civil servants to appear and answer questions. Naturally, Accounting Officers are the highest ranking officials in the government hierarchy apart from cabinet Ministers and as such wield much power and influence in the performance of government.  To illustrate further, government performance is largely owed to the strategic and policy direction of top technocrats in various Ministries.

It is disheartening to point out that the recent parliament committees — as has been the case all over the years — has laid bare the incompetency, inadequacy and ineptitude of people bestowed with great responsibilities in public offices. To say that they are ineffective and inefficient sounds as an understatement. Some appear useless and hopeless when it comes to running the government despite the huge responsibility they possess.

If we were uncertain about the degree at which the Accounting Officers are incompetent, the ongoing parliament committees provide a glaring answer.  It is not an exaggeration to say that ordinary people on the streets have been held ransom by these technocrats who enjoy their air conditioned offices and relish being chauffeured around in luxurious BX SUV’s while the rest of the citizenry continue to suffer. Because of such high life the Accounting Officers seem to have, with time, they have gotten out of touch with the people they are supposed to serve.

An example; when appearing before the recent Public Accounts Committee (PAC), Office of the President Permanent Secretary, Thuso Ramodimoosi, looked reluctant to admit misuse of public funds. Although it is clear funds were misused, he looked unbothered when committee members grilled him over the P80 million Orapa House building that has since morphed into a white elephant for close to 10 successive years. To him, it seems it did not matter much and PAC members were worried for nothing.

On a separate day, another Accounting officer, Director of Public Service Management (DPSM), Naledi Mosalakatane, was not shy to reveal to PAC upon cross-examination that there exist more than 6 000 vacancies in government. Whatever reasons she gave as an excuse, they were not convincing and the committee looked sceptical too. She was faltering and seemed not to have a sense of urgency over the matter no matter how critical it is to the populace.

Botswana’s unemployment rate hoovers around 18 percent in a country where majority of the population is the youth, and the most affected by unemployment. It is still unclear why DPSM could underplay such a critical matter that may threaten the peace and stability of the country.
Accounting Officers clearly appear out of touch with the reality out there – if the PAC examinations are anything to go by.

Ideally the DPSM Director could be dropping the vacancy post digits while sourcing funds and setting timelines for the spaces to be filled as a matter of urgency so that the citizens get employed to feed their families and get out of unemployment and poverty ravaging the country.
The country should thank parliamentary committees such as PAC to expose these abnormalities and the behaviour of our leaders when in public office. How can a full Accounting Officer downplay the magnitude of the landless problem in Botswana and fail to come with direct solutions tailor made to provide Batswana with the land they desperately need?

Land is a life and death matter for some citizens, as we would know.

When Bonolo Khumotaka, the Accounting Officer in the Ministry of Land Management, Water and Sanitation Services, whom as a top official probably with a lucrative pay too appears to be lacking sense of urgency as she is failing on her key mandate of working around the clock to award the citizens with land especially those who need it most like the marginalised.  If government purports they need P94 billion to service land to address the land crisis what is plan B for government? Are we going to accept it the way it is?

Government should wake up from its slumber and intervene to avoid the 30 years unnecessary waiting period in State land and 13 years in Tribal land.  Accounting Officers are custodians of government policy, they should ensure it is effective and serve its purpose. What we have been doing over the years, has proved that it is not effective, and clearly there is a need for change of direction.

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Opinions

Is it possible to make people part of your business resilience planning after the State of Public Emergency?

12th October 2020

THABO MAJOLA

His Excellency Dr Mokgweetsi EK Masisi, the President of the Republic of Botswana found it appropriate to invoke Section 17 (1) of the Constitution of the Republic of Botswana, using the powers vested in him to declare a State of Public Emergency starting from the 2nd April 2020 at midnight.

The constitutional provision under Section 17 (2b) only provided that such a declaration could be up to a maximum of 21 days. His Excellency further invoked Section 93 (1) to convene an extra- ordinary meeting of Parliament to have the opportunity to consult members of parliament on measures that have been put in place to address the spread and transmission of the virus. At this meeting Members of Parliament passed a resolution on the legal instruments and regulations governing the period of the state of emergency, and extended its duration by six (6) months.

The passing of the State of Emergency is considered as a very crucial step in fighting the near apocalyptic potential of the Novel COVID-19 virus. One of the interesting initiatives that was developed and extended to the business community was a 3-month wage subsidy that came with a condition that no businesses would retrench for the duration of the State of Public Emergency. This has potentially saved many people’s jobs as most companies would have been extremely quick to reduce expenses by downsizing. Self-preservation as some would call it.

Most organisations would have tried to reduce costs by letting go of people, retreated and tried their best to live long enough to fight another day. In my view there is silver lining that we need to look at and consider. The fact that organisations are not allowed to retrench has forced certain companies to look at the people with a long-term view.

Most leaders have probably had to wonder how they are going to ensure that their people are resilient. Do they have team members who innovate and add value to the organisation during these testing times? Do they even have resilient people or are they just waiting for the inevitable end? Can they really train people and make them resilient? How can your team members be part of your recovery plan? What can they do to avoid losing the capabilities they need to operate meaningfully for the duration of the State of Public Emergency and beyond?

The above questions have forced companies to reimagine the future of work. The truth is that no organisation can operate to its full potential without resilient people. In the normal business cycle, new teams come on board; new business streams open, operations or production sites launch or close; new markets develop, and technology is introduced. All of this provides fresh opportunities – and risks.

The best analogy I have seen of people-focused resilience planning reframes employees as your organisation’s immune system, ready and prepared to anticipate risks and ensure they can tackle challenges, fend off illness and bounce back more quickly.  So, how do you supercharge your organizational immune system to become resilient?

COVID-19 has helped many organisations realize they were not as prepared as they believed themselves to be. Now is the time to take stock and reset for the future. All the strategies and plans prior to COVID-19 arriving in Botswana need to be thrown out of the window and you need to develop a new plan today. There is no room for tweaking or reframing. Botswana has been disrupted and we need to accept and embrace the change. What we initially anticipated as a disease that would take a short term is turning out to be something we are going to have to live with for a much longer time. It is going to be a marathon and therefore businesses need to have a plan to complete this marathon.

Start planning. Planning for change can help reduce employee stress, anxiety, and overall fear, boosting the confidence of staff and stakeholders. Think about conducting and then regularly refreshing a strategic business impact analysis, look at your employee engagement scores, dig into your customer metrics and explore the way people work alongside your behaviours and culture. This research will help to identify what you really want to protect, the risks that you need to plan for and what you need to survive during disruption. Don’t forget to ask your team members for their input. In many cases they are closest to critical business areas and already have ideas to make processes and systems more robust.

Revisit your organisational purpose. Purpose, values and principles are powerful tools. By putting your organisation’s purpose and values front and center, you provide clear decision-making guidelines for yourself and your organisation. There are very tough and interesting decisions to make which have to be made fast; so having guiding principles on which the business believes in will help and assist all decision makers with sanity checking the choices that are in front of them. One noticeable characteristic of companies that adapt well during change is that they have a strong sense of identity. Leaders and employees have a shared sense of purpose and a common performance culture; they know what the company stands for beyond shareholder value and how to get things done right.

Revisit your purpose and values. Understand if they have been internalised and are proving useful. If so, find ways to increase their use. If not, adapt them as necessities, to help inspire and guide people while immunizing yourself against future disruption. Design your employee experience. The most resilient, adaptive and high performing companies are made up of people who know each other, like each other, and support each other.

Adaptability requires us to teach other, speak up and discuss problems, and have a collective sense of belonging. Listening to your team members is a powerful and disruptive thing to do. It has the potential to transform the way you manage your organisation. Enlisting employees to help shape employee experience, motivates better performance, increases employee retention and helps you spot issues and risks sooner. More importantly, it gives employees a voice so you can get active and constructive suggestions to make your business more robust by adopting an inclusive approach.

Leaders need to show they care. If you want to build resilience, you must build on a basis of trust. And this means leaders should listen, care, and respond. It’s time to build the entire business model around trust and empathy. Many of the employees will be working under extreme pressure due to the looming question around what will happen when companies have to retrench. As a leader of a company transparency and open communication are the most critical aspects that need to be illustrated.

Take your team member into confidence because if you do have to go through the dreaded excise of retrenchment you have to remember that those people the company retains will judge you based on the process you follow. If you illustrate that the business or organization has no regard for loyalty and commitment, they will never commit to the long-term plans of the organisation which will leave you worse off in the end. Its an absolutely delicate balance but it must all be done in good faith. Hopefully, your organization will avoid this!

This is the best time to revisit your identify and train your people to encourage qualities that build strong, empathetic leadership; self-awareness and control, communication, kindness and psychological safety.  Resilience is the glue that binds functional silos and integrates partners, improves communications, helps you prepare, listen and understand. Most importantly, people-focused resilience helps individuals and teams to think collectively and with empathy – helping you respond and recover faster.

Article written by Thabo Majola, a brand communications expert with a wealth of experience in the field and is Managing Director of Incepta Communications.

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