Row has erupted in the country (Botswana) when, on the 26th of September 2015, His Excellency ,the President Lt Gen Ian Khama, suspended a quartet of Judges on allegations of having concurrently occupied government houses and undeservedly received accommodation allowances for a considerable period of time.
Suggestions from some quarters are that there is need to make arrangements to pay back the money as the matter is purely administrative and a mere blunder on the part of the staff at the department of Administration Of Justice. In that sense, to borrow Shakespeare‘s words, the judges are more sinned against than sinning’ (‘King Lear’ Act 5 scene 2 lines 57 -60).
Begging to differ, other people are of the opinion that this anomaly is nothing but a tip of the proverbial iceberg of what is happening behind the scenes within the judiciary and therefore contend that nothing short of a deterrent measure will right this wrong.
But what does the constitution say about that development?
Section 97 of the Botswana Constitution provides for grounds and procedures to be followed religiously for the removal of judges of the High Court
‘A judge of the High Court may (and not shall) be removed from office only for inability to perform the functions of his or her office (whether arising from infirmity of the body or mind or any other cause or for misbehavior, and shall not be so removed except in accordance with the provisions of this section’ (subsection 2) and subsection 3 reads: ‘If the President considers that the question of removing a judge of the High Court under this section ought to be investigated then:
(a) He or she shall appoint a tribunal which shall consist of a Chairman and not less than two other members, who hold or have held high judicial office.
(b) the tribunal shall enquire into the matter and report on the facts thereof to the President and advise the President whether the judge ought to be removed from office under this section for inability as aforesaid or for misbehavior’ Subsection 4 provides that if the tribunal advises the President to remove the judge concerned he (the President) shall dismiss that judge.
As can be seen, the wording of the constitution is quite clear but what differs is the interpretation and that is the center of the debate. For example, what is misbehavior? and how can it be quantified? Unfortunately, the constitution does not have the interpretation section to define the word and it will be up to the Judges, and not President, to decide the meaning, using their own viewstandards given the value-laden or normative nature of the concept. But why this panic given that section 10 of our constitution presumes everyone innocent till proven guilty?.
This writer‘s interest liest not in the debate on whether or not His Excellency has acted ultra-vires the Constitution but on: who really makes the law, the politician or judge? Are judges translators, interpreters or mis-interpreters of the law?
Before addressing these emotive questions we need to refresh our minds by getting into the bible and then link our discoveries to the topic in question.
When Jesus Christ was rejected at Nazareth,’ he could not do might works – because of people ‘s unbelief” This is Mark ,the evangelist, ‘s version (Mark 6:5).After having noted that this presentation was not only unintelligible and absurd but was bound to leave a sour taste in the mouths of the early Christian community, Matthew sugar-coated it to read ‘— He could not do many might works – ‘(Matthew 13:58).
It is in this context that Matthew is regarded a modified version of Mark whose language was rough and ready and riddled with grammatical slips and peculiar construction of various description .In the process, he ended up confusing both the reader and himself due to his failure to put himself across effectively.
As can be seen, Matthew ended up totally changing the complexion of Mark’s story through the insertion of the word ‘many’. In a related development ,Mark portrays James and John ,the sons of Zebedee ,as very ambitious people who went to Jesus demanding for the lion ‘s share in the kingdom of God (Mark 10:35-45)but Matthew exonerates them by saying it was their mother who did so(Matthew 20:20-28).
The two separate occasions by Mark reflect the weak or dark side of both our Lord, Jesus Christ Himself, and two of his inner circle disciples, the former succumbing to anger while the latter are over-ambitious. No doubt, at the back of his mind, Mark did not intend to bring about this result but due to lack of education and stunted intellectual and linguistic prowess, he unwittingly produced that effect.
What makes the situation worse is that the meanings of words are neither fixed nor final but vary according to the context in terms of time, culture etc. Just like the concepts deviance and beauty, which lie in the eyes of the beholder, the meaning of a word is influenceddetermined by what the reader would want it to mean.
I am sure that those into socio-linguistics will support my contention that words do not have meanings but we give meanings to words and words are just symbols to represent phenomena. Also, words are a social convention which we use to express our thoughts. For example, a table could be something else but we call it such for convenience‘s sake.
This equally applies for what we write.As humans continue indulging in a social intercourse some words become obsolete while new ones come into picture and this is also influenced by the ever-changing socio-political ,economic and environmental situation obtaining at any given time.
Do you still remember ,for instance, the archaic Shakespearean or Chaucer ‘s English?Also, do you remember how those with the poetic license can easily combine and recombine ,in a very unique way, ordinary words,into new expressions ,in as much the same way as man can combine and recombine objects into new devices?
The above scenario compares very well with the cor-relationship between the legislators and thejudges and, how through statutory interpretation, judges totally stray away from what Parliament meant, by creating sense into the legislature’s nonsense, and this leaves us doubting who between the two arms of government, the legislature or the judiciary ,is the supreme law making body. This task naturally leads us to the doctrine of separation of powers which we briefly delve into.
The term Separation of powers, which was coined by Montesquieu, the French philosopher, is the formal division of the 3 arms of government in the following manner: structure, function and personnel. The issue of checks and balances is also an integral aspect of this concept. With regards to structure, we mean the 3 arms exist as distinct entities and not one.
As an illustration, Parliament (legislature) is distinct from the Executive and the Judiciary. In terms of personnel, a member of one arm of government should not double cross it with the other arms as in being a Member of Parliament, a judge and a member of the Executive at the same time.
Their functions (duties) are markedly different also: Parliament makes the law, which we call a statute or Act of Parliament such as the Employment Act, the Public Service Act or the Penal Code; the Judiciary interprets that law so that it becomes crystal clear while the Executive applies and enforces the law.
This concept ensures that there is specialization and specialization brings about operational efficiency and effectiveness. Again, following the adage power tends to corrupt and absolute power corrupts absolutely, we are trying to guard against a situation where power is concentrated in one bodyarm as it will be subject to abuse.
By checks and balances we mean one arm should act as a monitoring mechanism to check the abuse of power by the other arm. In political science we use the concept trias politicas doctrine for separation of powers and its antonym is fusion of powers.
The concept ‘fusion of powers’ is designed in such a way that the 3 arms do everything jointly as was the case with monarchs during primitive times: the king was lawmaker (legislature) ,interpreter (judiciary)and enforcer(executive).This was the also the case with Moses(Deuteronomy 16:18,numbers 18:13)
Without getting into the heart of legalese, the law comes into being through the initiative of the politicians in both the legislature and Executive. Meaning through the hands –on- approach ,the Executive arm eg the Ministry of Education initiates a Bill (proposed law)governing that department and it is taken to the August House for debating .If it succeeds the Bill becomes law and this becomes so after the Presidential Assent and subsequent publication in the Government Gazette.
Of course, the Attorney General, who is the principal legal adviser to the Legislature, also plays a role since in most jurisdictions he is the ex-officio Member of Parliament. We also have the Parliamentary legal committee which, in my view, must consist of people with legal minds so that some loopholes on the Bill are detected early and rectified before it graduates into law. As a monitoring mechanism again, the President, who is the embodiment of the constitution would not assent to a Bill that is ultra-vires the constitution. On that basis, one can safely conclude that it is Parliament, and not the judiciary, that makes the law.
When members of Parliament make the law it is not in their individual capacity but on behalf of the electorate and, as such, that law must prevail, even if unreasonable? This is what democracy is all about! But is it really legislators who make the law?
When a case has found its way in court, the courts have the duty to apply that law in concrete situations and this is achieved through the interpretation of statutes. In this exercise the court will be trying to bring to light the intention of Parliament.
What is interpretation, as opposed to translation? To interpret is to form an opinion from given facts or deduce the implication of what someone says. Translation, on the other hand, refers to merely reducing or converting one language into another eg from Setswana to English.
For example,preachers in Church are involved in interpretation of the word and people usually get locked up in disputes over an interpretation of the same words in the bible.(At times ,however, translation is involved if the bible has been written in a foreign language).
In as much the same way, judges are always arguing over the interpretation, and not translation, of a statutory provision, as we saw above. On that basis ,it is actually a misnomer, if not a mischievous misrepresentation of the facts, to refer the court personnel in charge of converting one language into another to as court interpreters but, instead, translators.
If they were interpreters what would be the duty of the court? It is for the same reason that even witnesses are not allowed to interpret but simply state the facts as they are without forming an opinion!Judges give meanings to written words presented to them by Parliament through an Act.
Unfortunately the authors of that document are mostly laypersons who do not have the slightest idea about the characteristics of a good law and are not even available in court to clarify what they meant. In the light of a lapse of time all the authors of that statute might be dead ,just like Shakespeare must be turning in his grave and mourning as he hears in his spiritual ear mis-readers or mis-interpreters of his writings.
Tragic as it sounds, he cannot do anything to change it. Tough luck again, because in any society that lays claim to the espousal of democracy, everyone, and judges included, is entitled to his own opinion, whether bad or good. As noted above, judges are not translators but interpreters of the law.
In the process of interpreting statutes, judges employ various tools or aids, both intrinsic and extrinsic. Intrinsic ones are those within the statute itself such as the long and short title, headings and the preamble. Those outside the text are the extrinsic aids and they include the historical background surrounding that statute eg it was crafted against the background of Apartheid.
This information could be drawn from textbooks and other pieces of literature. Dictionaries could also be referred to and even the Hansard. Judges also make use of cannons, maximums, and presumptions and, of course, the rules of interpretation which are the Literal, Golden and Mischief rules. Another guiding principle is the purpose of the Legislature.
In a word, this article defined the concepts separation of powers, translation and interpretation of statutes and concluded that it is, on the face of it, Parliament which is the supreme law making body. We also realized that it is only the court(judges) which has the powers to interpret ,and not translate, the law since we have court personnel that is involved in the translation. We managed to browse through possible reasons why the interpreter (judge) might give words a different meaning from what a writer (Parliament) intended.
Next week we shall get into the rules of interpretation and see how judges depart from what Parliament intended and, in the process, make their own laws ,laws never envisaged by the legislature ,or misinterpret the law either deliberately or by accident. In the oncoming epistle, again, we shall also try to map the best way forward .Bie .See part 2 of this discussion next week
This is a question that should seriously exercise the mind of every Botswana citizen and every science researcher, every health worker and every political leader political.
The Covid-19 currently defines our lives and poses a direct threat to every aspect and every part of national safety, security and general well-being. This disease has become a normative part of human life throughout the world.
The first part of the struggle against the murderous depredation of this disease was to protect personal life through restrictive health injunctions and protocols; the worst possibly being human isolation and masks that hid our sorrows and lamentations through thin veils. We suffered that humiliation with grace and I believe as a nation we did a great job.
Now the vaccines are here, ushering us into the second phase of this war against the plague; and we are asking ourselves, is this science-driven fight against Covid-19 spell the end of pandemic anxiety? Is the health nightmare coming to an end? What happy lives lie ahead? Is this the time for celebration or caution? As the Non State Actors, we have being struggling with these questions for months.
We have published our thoughts and feelings, and our research reviews and thorough reading of both the local and international impacts of this rampaging viral invasion in local newspapers and social media platforms.
More significantly, we have successfully organised workshops about the impact of the pandemic on society and the economy and the last workshop invited a panel of health experts, professionals, and public administers to advance this social dialogue as part of our commitment to the tripartite engagement we enjoy working with Government of Botswana, Civil Society and Development partners. These workshops are virtual and open to all Batswana, foreign diplomatic missions based in Gaborone, UN agencies located in Gaborone and international academic researchers and professional health experts and specialists.
The mark of Covid-19 on our nation is a painful one, a tragedy shared by the entire human race, but still a contextually painful experience. Our response is fraught with grave difficulties; limited resources, limited time, and the urgency to not only save lives but also avert economic ruin and a bleak future for all who survive. Several vaccines are already in the market.
Parts of the world are already doing the best they can to trunk the pestilential march of this disease by rolling out mass-vaccinations campaigns that promise to evict this health menace and nightmare from their public lives. Botswana, like much of Africa, is still up in the disreputable, and, unenviable, preventative social melee of masked interactions, metered distances, contactless commerce.
We remain very much at the mercy of a marauding virus that daily runs amuck with earth shattering implications for the economy and human lives. And the battle against both infections and transmissions is proving to be difficult, in terms of finance, institutional capacities and resource mobilization. How are we prepared as government, and as citizens, to embrace the impending mass-vaccinations? What are the chances of us succeeding at this last-ditch effort to defeat the virus? What are the most pressing obstacles?
Does the work of vaccines spell an end to the pandemic anxieties?
Our panellists addressed the current state of mass-vaccination preparedness at the Botswana national level. What resources are available? What are the financial, institutional and administrative operational challenges (costs and supply chains, delivery, distribution, administering the vaccine on time, surveillance and security of vaccines?) What is being done to overcome them, or what can be done to overcome them? What do public assessments of preparedness tell us at the local community levels? How strong is the political will and direction? How long can we expect the whole exercise to last? At what point should we start seeing tangible results of the mass-vaccination campaign?
They also addressed the challenges of the anticipated emerging Vaccinated Society. How to fight the myths of vaccines and the superstitions about histories of human immunizations? What exactly is being done to grow robust local confidence in the science of vaccinations and the vaccines themselves? More significantly, how to square these campaigns vis-vis personal rights, moral/religious obligations?
What messages are being sent out in these regards and how are Batswana responding? What about issues of justice and equality? Will we get the necessary vaccines to everyone who wants them? What is being done to ensure no deserving person is left behind?
They also addressed issues of health data. To accomplish this mass-vaccination campaign and do everything right we need accurate and complete data. Poor data already makes it very hard to just cope with the disease. What is being done to improve data for the mass-vaccination campaign? How is this data being collected, aggregated and prepared for real life situation/applications throughout Botswana in the coming campaign?
We know in America, for example, general reporting and treatment of health data at the beginning of vaccinations was so poor, so chaotic and so scattered mainstream newspapers like The Atlantic, Washington Post and the New York Times had to step in, working very closely with civil society organizations, to rescue the situation. What data-related issues are still problematic in Botswana?
To be specific, what kind of Covid-19 data is being taken now to ready the whole country for an effective and efficient mass-vaccination program?
Batswana must be made aware that the end part of vaccination will just mark the beginning of a long journey to health recovery and national redemption; that in many ways Covid-19 vaccination is just another step toward the many efforts in abeyance to fight this health pandemic, the road ahead is still long and painful.
For this purpose, and to highlight the significance of this observation we tasked our panellists with the arduous imperative of analysing the impact of mass-vaccination on society and the economy alongside the pressing issues of post-Covid-19 national health surveillance and rehabilitation programs.
Research suggests the aftermath of Covid-19 vaccination is going to be just as difficult and uncertain world as the present reality in many ways, and that caution should prevail over celebration, at least for a long time. The disease itself is projected to linger around for some time after all these mass-vaccination campaigns unless an effort is made to vaccinate everyone to the last reported case, every nation succeeds beyond herd immunity, and cure is found for Covid-19 disease. Many people are going to continue in need of medications, psychological and psychiatric services and therapy.
Is Botswana ready for this long holdout? If not, what path should we take going into the future? The Second concern is , are we going to have a single, trusted national agency charged with the mandate to set standards for our national health data system, now that we know how real bad pandemics can be, and the value of data in quickly responding to them and mitigating impact? Finally, what is being done to curate a short history of this pandemic? A national museum of health and medicine or a Public Health Institute in Botswana is overdue.
If we are to create strong sets of data policies and data quality standards for fighting future health pandemics it is critical that they find ideological and moral foundations in the artistic imagery and photography of the present human experience…context is essential to fighting such diseases, and to be prepared we must learn from every tragic health incident.
Our panellists answered most of these questions with distinguished intellectual clarity. We wish Batswana to join us in our second Mass-vaccination workshop.
Today is International Women’s Day – it’s a moment to think about how much better our news diet could be if inequities were eliminated. In 1995, when the curtains fell in one of the largest meetings that have ever brought women together to discuss women in development, it was noted that women and media remain key to development.
Twenty-six years later, the relevant “Article J” of the Beijing Platform for Action, remains unfulfilled. Its two strategic objectives with regard to Women and Media have not been met. They are Increase the participation and access of women to expression and decision-making in and through the media and new technologies of communication
Promote a balanced and non-stereotyped portrayal of women in the media.
Today, as we mark International Women’s Day, it’s an indictment on both media owners and civil society that women remain on the periphery of news-making. They cannot claim equal space in either the structures of newsrooms or in the content produced, be that as sources of news or as the subjects of reports. Indeed, the latest figures from WAN-IFRA’s Women in News Programme show just one in five voices in news belong to women*, be they as sources, as the author or as the main character of the news report.
Some progress was evident several years back, with stand-out women being named as chief executive officers, editors in chief, managing editors and executive editors. But these gains appear short lived in most media organisations. Excitement has turned to frustration as one-step forward has been replaced with three steps backwards. In Africa, the problem is acute. The decision-making tables of media organisations remain deprived of women and where there are women, they are surrounded by men.
Few women have followed in the footsteps of Esther Kamweru, the first woman managing editor in Kenya, and indeed sub-Saharan Africa. Today’s standout women editors include Pamela Makotsi-Sittoni (Nation Media Group, Kenya), Barbara Kaija (New Vision, Uganda), Mary Mbewe (Daily Nation, Zambia), Margaret Vuchiri (The Monitor, Uganda), Joyce Shebe (Clouds, Tanzania), Tryphinah Dongwana (Weekend Post, Botswana), Joyce Mhaville (Independent Television -ITV, Tanzania) and Tuma Abdallah (Standard Newspapers,Tanzania). But they remain an exception.
The lack of balance between women and men at the table of decision making has a rollback effect on the content that is produced. A table dominated by men typically makes decisions that benefit men.
So today, International Women’s Day is a grim reminder that things are not rosy in the news business. Achieving gender balance in news and in the structure of media organisations remains a challenge. Unmet, it sees more than half of the population in our countries suffer the consequences of bias, discrimination and sexism.
The business of ignoring the other half of the population can no longer be treated as normal. It’s time that media leaders grasp the challenge, not only because it is the right thing to do, but because it also makes a whole lot of business sense: start covering women, give them space and a voice in news-making and propel them to all levels of decision making within your organisation.
We can no longer afford to imagine that it’s only men who make and sell the news and bring in the shillings to fund the media business. Women too are worthy newsmakers. In all of our societies, there are women holding decision making positions and who are now experts in once male-only domains such as engineers, doctors, scientists and researchers.
They can be deliberately picked out to share their perspectives and expertise and bring balance to the profile of experts quoted on our news pages. Media is the prism through which society sees itself and women are an untapped audience. So, as we celebrate International Women’s Day, let us embrace diversity, which yields better news content and business products, and in so doing eliminate sexism. We know that actions and attitudes that discriminate against people based on their gender is bad for business.
As media, the challenge is ours. We need to consciously embrace and reach the commitments made 26 years ago when the Beijing Platform for Action was signed globally. As the news consuming public, you have a role to play too. Hold your news organization to account and make sure they deliver balanced news that reflects the voices of all of society.
Jane Godia is a gender development and media expert who serves as the Africa Director of Women in News programme. WOMEN IN NEWS is WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org
The eve of International Women’s Day presents an opportunity for us to think about gender equality and the long and often frustrating march toward societies that are truly equal.
As media, we are uniquely placed to drive forward this reflection and discussion. But while focusing on the challenges of gender in society, we owe it to our staff and the communities we serve to also take a hard look at the obstacles within our own organisations.
I’m talking specifically about the scourge of sexual harassment. It’s likely to have happened in your newsroom. It has likely happened to a member of your team. It happens to all genders but is disproportionately directed at women. It happens in every industry, regardless of country, culture or context. This is because sexual harassment is driven by power, not sex. Wherever you have imbalances in power, you have individuals who are at risk of sexual harassment, and those who abuse this power.
I’ve been sexually harassed. The many journalists and editors, friends and family members who I have spoken to over the years on this subject have also been harassed. Yet it is still hard for leaders to recognize that this could be happening within their newsrooms and boardrooms. Why does it continue to be such a taboo?
Counting the cost of sexual harassment
Sexual harassment is, simply put, bad for business. It can harm your corporate reputation. It is a drain on the productivity of staff and managers. Maintaining and building trust in your brand is an absolute imperative for media organisations globally. If and when a case gets out of control or is badly handled – this can directly impact your bottom line.
It is for this reason that WAN-IFRA Women in News has put eliminating sexual harassment as a top priority in our work around gender equality in the media sector. This might seem at odds with the current climate where social interactions are fewer and remote work scenarios are in place in many newsrooms and businesses. But one only needs to tune into the news to know that the abuse of power, manifested as verbal, physical or online harassment, is alive and well.
Preliminary results from an ongoing Women in News research study into the issue of sexual harassment polling hundreds of journalists in Sub-Saharan Africa and Southeast Asia indicate that more than 1 in 3 women media professionals have been physically harassed, and just under 50% have been verbally harassed. Just over 15% of men in African newsrooms reported being physically harassed, and slightly less than 1 in 4 reports being verbally harassed. The numbers for male media professionals in Southeast Asia are slightly higher than a quarter on both forms of harassment.
The first step in confronting sexual harassment is to talk about it. We need to strip away the stigma and discomfort around having open conversations about what sexual harassment is and isn’t. Media managers, it is entirely in your power to create dynamics in your own teams that are free from sexual harassment.
Publishers and CEOs, you set the organisational culture in your media company.
By being vocal in recognising that it happens everywhere, and communicating to your employees that you will not tolerate sexual harassment of any kind, you send a powerful message to your teams, and publicly. With these actions, you will help us overcome the legacy of silence around this topic, and in doing so take an important first step to create media environments that truly embrace equality.
Melanie Walker is Executive Director of Media Development of the World Association of News Publishers (WAN-IFRA). She is a creator of Women in News, WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org