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Gender inequality in Botswana: laws and practices (Part 1)

Ndulamo Anthony Morima
EAGLE WATCH

Often, statements have been made by gender activists that Botswana is bedeviled by gender inequality. Government, on the other hand, has been on the defense, contending that just like it has an impeccable human rights record, its respect for gender rights is without blemish.

According to government, not even its failure to sign the SADC Gender Protocol should take away from its respect for women’s rights because its reasons for the non-signing are valid, namely that it has concerns about its ability to reach the targets set and the Protocol has prescriptive language.   

In this part, we make a review of equality between men and women in Botswana, in both law and practice. We consider such areas as land ownership; non-land property ownership; succession and inheritance; divorce petition; independent travel, access to employment opportunities and benefits in the workplace; and representation in the executive, judiciary, legislature, Ntlo ya Dikgosi, previously the House of Chiefs, and the public service.


In part II, we will consider gender representation in government agencies and directorates, the Botswana Police Service, Botswana Defence Force, local government authorities, parastatals, organized groups, e.g. trade unions and employers’ organizations, political parties and the private sector. The latter will be based on a random sample of five private companies whose identity will not be disclosed.


First, land ownership rights. In Botswana, there is no law that deprives women, both married and unmarried, from owning land to the same extent that men do. Second, non-land property rights. Similarly, no law in Botswana accords one gender, even regarding married people married in or out of community of property, better rights over the other with respect to acquisition and/or ownership of non-land property.

In terms of section 7 of the Abolition of Marital Power Act 34 of 2004, “…, a husband and wife married in community of property shall have equal capacity to (a) dispose of the assets of the joint estate; (b) contract debts for which the joint estate is liable; and (c) administer the joint estate.

Also, subject to section 9 of the Abolition of Marital Power Act 34 of 2004, “…a spouse married in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse”. Further, in terms of section 15(2) of the Abolition of Marital Power Act 34 of 2004 a spouse married out of community of property has a right of recourse against the other spouse in so far as he or she has contributed to the acquisition of property by that other.

Third, inheritance rights. The landmark case of Mmusi and Others v Ramantele and Another MAHLB-000836-10 has established the rights of women to inherit and, I opine, to succession in terms of family and tribal positions of authority.

The inheritance provision is in keeping with international best practice because as per the United Nations Entity for Gender Equality and the Empowerment of Women, “…legislation should prohibit discrimination against women and girls in inheritance and explicitly allow females to inherit property and land on an equal basis with males”.

The succession provision is also in line with international best practice because as per the United Nations Entity for Gender Equality and the Empowerment of Women, “…laws governing lines of succession should ensure equality of rank between mothers and fathers, between brothers and sisters, between daughters and sons, and between spouses.
 
Even in statutory law, I am unaware of any statute that makes women’s rights to inherit less than those of their male counterparts. Hitherto the Mmusi case, the disparity was more to do with practice emanating from the unwritten customary law of some tribes, in that case the BaNgwaketse, than codified statutory law passed by Botswana’s Parliament.


Fourth, divorce petition rights. In terms of the High Court Act, CAP. 04:02, a married woman, just like a married man, can, as Plaintiff, commence divorce proceedings. Neither spouse needs assistance by the other or any other person to petition for divorce.   


Fifth, rights to independent travel. While Batswana women, especially married women before the passing of the Abolition of Marital Power Act 34 of 2005, suffered discrimination in many respects, they never suffered any legal restrictions in terms of travel. Women, like men, have always enjoyed an almost unfettered constitutional right to the freedom of movement as enshrined in section 14 of the Constitution.


Sixth, access to employment opportunities and benefits in the workplace. In terms of the Employment Act, CAP. 47:01, both men and women enjoy the same rights to employment. Unlike in other countries, there is neither law nor practice which legitimizes more pay for men than for women. Men and women are also equally entitled to such benefits in the workplace as rest periods, leave with pay, paid public holidays, paid sick leave, severance pay, e.t.c in terms of sections 93, 98, 99, 100 and 27 respectively of the Employment Act, CAP. 47:01.


In addition, women’s rights to absence from work in connection with confinement and maternity allowance; payment of maternity allowance; prohibition of termination of employment during maternity leave; and permission to nurse the child after returning to work are protected in terms of sections 113, 114, 115, 116, 117 and 118 respectively of the Employment Act, CAP. 47:01.    


While Botswana law generally protects both males and females equally, certain gender inequality practices exist with respect to cabinet appointments; representation in the judiciary; representation in Parliament and representation in Ntlo ya Dikgosi, previously the House of Chiefs.


First, cabinet appointments. Both the President and the Vice President are males. In fact, Botswana has never had a female President or Vice President. Of the sixteen Ministers, only three, i.e. Dorcas Makgatho-Malesu, Pelonomi Vincent-Moitoi and Unity Dow of Health; Foreign Affairs; and Education and Skills Development respectively are women.

Of the eight Assistant Ministers, only one, Botlogile Tshireletso, Assistant Minister in the Ministry of Local Government and Rural Development, is a woman. One can, therefore, conclude that in Botswana cabinet appointments do not take gender into consideration.  


Second, representation in the judiciary. Botswana’s highest court, the Court of Appeal, which is currently undergoing a localization process, has four local justices of appeal none of whom is a woman. As regards the High Court, only three (i.e. Justices Dambe L, Tau T and Garekwe M) out of twenty four permanent judges are women.

As regards the Industrial Court, only two (i.e. Justices Marumo J B and Mathiba A R) out of seven judges are women. Though I was not, at the time of writing this article, able to ascertain the gender representation in the magistracy, it appears there are more females magistrates than there are males though the difference is marginal.  


Third, representation in Parliament. Considering that only four (i.e. Honorables Dorcas Makgatho-Malesu, Pelonomi Vincent-Moitoi, Botlogile Tshireletso and Same Bathobakae) out of fifty-seven Elected Members of Parliament are women and only one (i.e. Honorable Unity Dow) of the four Specially Elected Members of Parliament are women, it is incontrovertible that representation in the legislature does not take gender into consideration. It ought to be noted, however, that both the last and the current Parliament have had female Speakers, being Honorable Margret Nasha and Honorable Gladys Kokorwe respectively.


Ntlo ya Dikgosi, previously called the House of Chiefs, too is marred by gender inequality. According to the Ministry of Labour & Home Affairs’ 2008 Gender Disaggregated Data on Decision Making Positions, of the thirty four members, only three were women while thirty one were males.

This situation has hardly changed. Also, to the best of my recollection, no woman has ever been elected as Chairperson for Ntlo ya Dikgosi. This is not surprising because Botswana’s traditional leadership being predominantly patriarchal, chieftainship is inherited by sons from birth.


In the public service too, especially for decision-making positions, gender disparity is rife. According to the Ministry of Labour & Home Affairs’ 2008 Gender Disaggregated Data on Decision Making Positions, 63% of men occupied the civil service’s decision making positions, i.e. D1 scale to F0 scale, compared to a paltry 37% for women. Women had the lowest appointments to the salary scale of F0 (18%) while men had the highest score of appointment to the same salary grade (82%). This situation has not changed.


In view of the above, it can be concluded that while in terms of the law Botswana cannot be accused for gender inequality, it certainly lags behind in as far as practices are concerned. Following the Unity Dow citizenship case, the government has done a lot in passing women’s rights compliant laws and amending and/or repealing non-compliant laws. Examples of these are the amendment of the Citizenship Act post the Dow case, and the enactment of the Abolition of Marital Powers Act 34 of 2004.


A little exposition of the Dow case is perhaps apposite. In 1991, the current Minister of Education and Skills Development, Unity Dow, then a lawyer and gender activist, instituted court proceedings against the Government of Botswana challenging the constitutionality of legislation that denied married women the right to pass on Botswana citizenship to their children.

Prior to 1984, women had this right, but the new 1984 Citizenship Act repealed it, even though men married to non-citizens could pass on the right of citizenship. This was the crux of Dow’s litigation.

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DIS Parley Committee selection disingenuous 

25th November 2020

Intelligence and Security Service Act, which is a law that establishes the Directorate of Intelligence and Security Service (DIS), provides for establishment of a Parliamentary Committee. Recently, the President announced nine names of Members of Parliament he had appointed to the Committee.

This announcement was preceded by a meeting the President held with the Speaker and the Leader of Opposition. Following the announcement of Committee MPs by the President, the opposition, through its leader, made it clear that it will not participate in the Committee unless certain conditions that would ensure effective oversight are met. The opposition acted on the non-participation threat through resignation of its three MPs from the Committee.

The Act at Section 38 provides for the establishment of the Committee to examine the expenditure, administration and policy of the Directorate. The law provides that the Parliamentary Committee shall have the same powers and privileges set out under the National Assembly (Powers and Privileges) Act.

On composition, the Committee shall consist of nine members who shall not be members of Cabinet and its quorum shall be five members.  The MPs in the Committee elect a chairperson from among their number at their first meeting.

The Members of the Committee are appointed by the President after consultation with the Speaker of the National Assembly and Leader of the Opposition in the National Assembly. It is the provision of the law that the Committee, relative to its size, reflect the numerical strengths of the political parties represented in the National Assembly.

The Act provides that that a member of the Committee holds office for the duration of the Parliament in which he or she is appointed.  The Committee is mandated to make an annual report on the discharge of their functions to the President and may at any time report to him or her on any matter relating to the discharge of those functions.

The Minister responsible for intelligence and security is obliged to lay before the National Assembly a copy of each annual report made by the Committee together with a statement as to whether any matter has been excluded from that copy in pursuance of the provision of the Act.

If it appears to the Minister, after consultation with the Parliamentary Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Directorate, the Minister may exclude that matter from the copy of the report as laid before the National Assembly.

So, what are the specific demands of the Opposition and why are they not participating in the Committee? What should happen as a way forward? The Opposition demanded that there be a forensic audit of the Directorate. The DIS has never been audited since it was set up in 2008, more than a decade ago.

The institution has been a law unto itself for a longtime, feared by all oversight bodies. The Auditor General, who had no security of tenure, could not audit the DIS. The Directorate’s personnel, especially at a high level, have been implicated in corruption.  Some of its operatives are in courts of law defending corruption charges preferred against them. Some of the corruption cases which appeared in the media have not made it to the courts.

The DIS has been accused of non-accountability and unethical practices as well as of being a burden on the fiscus.  So, the Opposition demanded, from the President, a forensic audit for the purpose of cleaning up the DIS.  They demand a start from a clean slate.

The second demand by the Opposition is that the law be reviewed to ensure greater accountability of the DIS to Parliament. What are some of the issues that the opposition think should be reviewed? The contention is that the executive cannot appoint a Committee of Parliament to scrutinize an executive institution.

Already, it is argued, Parliament is less independent and it is dominated by the executive. It is contended that the Committee should be established by the Standing Orders and be appointed by a Select Committee of Parliament. There is also an argument that the Committee should report to Parliament and not to the President and that the Minister should not have any role in the Committee.

Democratic and Parliamentary oversight of the intelligence is relatively a new phenomenon across the World. Even developed democracies are still grappling with some of these issues. However, there are acceptable standards or what might be called international best practices which have evolved over the past two or so decades.

In the UK for instance, MPs of the Intelligence and Security Committee are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition. This is a good balancing exercise of involvement of both the executive and the legislature. Consultation is taken for granted in Botswana context in the sense that it has been reduced to just informing the Leader of Opposition without much regard to his or her ideas; they are never taken seriously.

Furthermore, the current Committee in the UK has four Members of the ruling party and five MPs from the opposition. It is a fairly balanced Committee in terms of Parliamentary representation. However, as said above, the President of Botswana appointed six ruling party MPs and three from the opposition.

The imbalance is preposterous and more pronounced with clear intentions of getting the executive way through the ruling party representatives in the Committee. The intention to avoid scrutiny is clear from the numbers of the ruling party MPs in the Committee.

There is also an international standard of removing sensitive parts which may harm national security from the report before it is tabled in the legislature. The previous and current reluctance of the executive arms to open up on Defence and Security matters emanate from this very reason of preserving and protecting national security.

But national security should be balanced with public interest and other democratic principles. The decision to expunge certain information which may be prejudicial to national security should not be an arbitrary and exclusive decision of the executive but a collective decision of a well fairly balanced Committee in consultation with the Speaker and the minister responsible.

There is no doubt that the DIS has been a rogue institution. The reluctance by the President to commit to democratic-parliamentary oversight reforms presupposes a lack of commitment to democratization. The President has no interest in seeing a reformed DIS with effective oversight of the agency.

He is insincere. This is because the President loathes the idea losing an iota of power and sharing it with any other democratic institution. He sees the agency as his power lever to sustain his stay in the high office. He thought he could sanitize himself with an ineffective DIS Committee that would dance to his tune.

The non-participation of the opposition MPs renders the Committee dysfunctional; it cannot function as this would be unlawful. Participation of the opposition is a legal requirement. Even if it can meet, it would lack legitimacy; it cannot be taken seriously. The President should therefore act on the oversight demands and reform the DIS if he is to be taken seriously.

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The Maccabean Uprising

25th November 2020
Jewish freedom fighters

 Jews drive away occupying power under the command of guerrilla leader Judas Maccabees but only just

Although it was the Desolation Sacrilege act, General Atiku, that officially sparked the Maccabean revolt, it in truth simply stoked the fires of an already simmering revolution. How so General?

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Atomic (CON)Fusion

25th November 2020

For years I have trained people about paradigm shifts – those light-bulb-switch-on moments – where there is a seismic change from the usual way of thinking about something to a newer, better way. 

I like to refer to them as ‘aha’ moments because of the sudden understanding of something which was previously incomprehensible. However,  the topic of today’s article is the complete antithesis of ‘aha’.  Though I’d love to tell you I’d had a ‘eureka ‘, ‘problem solved’ moment, I am faced with the complete opposite – an ‘oh-no’ moment or Lost Leader Syndrome.

No matter how well prepared or capable a leader is. they often find themselves facing perplexing events, confounding information, or puzzling situations. Confused by developments of which they can’t make sense and by challenges that they don’t know how to solve they become confused, sometimes lost and completely clueless about what to do.

I am told by Jentz and Murphy (JM) in ‘What leaders do when they don’t know what to do’ that this is normal, and that rapid change is making confusion a defining feature of management in the 21st century.  Now doesn’t that sound like the story of 2020 summed up in a single sentence?

The basic premise of their writing is that “confusion is not a weakness to be ashamed of but a regular and inevitable condition of leadership. By learning to embrace their confusion, managers are able to set in motion a constructive process for addressing baffling issues.

In fact, confusion turns out to be a fruitful environment in which the best managers thrive by using the instability around them to open up better lines of communication, test their old assumptions and values against changing realities, and develop more creative approaches to problem solving.”

The problem with this ideology however is that it doesn’t help my overwhelming feelings of fear and panic which is exacerbated by a tape playing on a loop in my head saying  ‘you’re supposed to know what to do, do something’. My angst is compounded by annoying motivational phrases also unhelpfully playing in my head like.

  • Nothing happens until something moves
  • The secret of getting ahead is getting started

and

  • Act or be acted upon

All these platitudes are urging me to pull something out of the bag, but I know that this is a trap. This need to forge ahead is nothing but a coping mechanism and disguise. Instead of owning the fact that I haven’t got a foggy about what to do, part of me worries that I’ll lose authority if I acknowledge that I can’t provide direction – I’m supposed to know the answers, I’m the MD!  This feeling of not being in control is common for managers in ‘oh no’ situations and as a result they often start reflexively and unilaterally attempting to impose quick fixes to restore equilibrium because, lets be honest, sometimes we find it hard to resist hiding our confusion.

To admit that I am lost in an “Oh, No!” moment opens the door not only to the fear of losing authority but also to a plethora of other troubling emotions and thoughts:  *Shame and loss of face: “You’ll look like a fool!” * Panic and loss of control: “You’ve let this get out of hand!” * Incompetence and incapacitation: “You don’t know what you’re doing!”

As if by saying “I’m at a loss here” is tantamount to declaring “I am not fit to lead.” Of course the real problem for me and any other leader is if they don’t admit when they are disoriented, it sends a signal to others in the organisation stating it’s not cool to be lost and that, by its very nature encourages them to hide.  What’s the saying about ‘a real man never asks for direction. ..so they end up driving around in circles’.

As managers we need to embrace the confusion, show vulnerability (remember that’s not a bad word) and accept that leadership is not about pretending to have all the answers but about having the courage to search with others to discover a solution.

JM point out that “being confused, however, does not mean being incapacitated.  Indeed, one of the most liberating truths of leadership is that confusion is not quicksand from which to escape but rather the potter’s clay of leadership – the very stuff with which managers can work.”

2020 has certainly been a year to remember and all indications are that the confusion which has characterised this year will still follow us into the New Year, thereby making confusion a defining characteristic of the new normal and how managers need to manage. Our competence as leaders will then surely be measured not only by ‘what I know’ but increasingly by ‘how I behave when I accept, I don’t know, lose my sense of direction and become confused.

.I guess the message for all organizational cultures going forward is that sticking with the belief that we need all-knowing, omni-competent executives will cost them dearly and send a message to managers that it is better to hide their confusion than to address it openly and constructively.

Take comfort in these wise words ‘Confusion is a word we have invented for an order not yet understood’!

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