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Does the Bogosi Act preserve the primacy of Bogosi?

Ndulamo Anthony Morima
Eagle WATCH

Pre-colonisation, Bogosi was at the centre of the day to day governance and administration of our people. Then, Dikgosi played a primal role in all the three arms of our government as they then were.


Many argue that the advent of colonisation brought more harm than good to Bogosi since it took away Dikgosi’s powers, concentrating them in the hands of the colonial government and its proxies. Undoubtedly, when Botswana attained independence in 1966, many, especially Dikgosi themselves and the traditionists hoped that their government, knowing Bogosi’s value in the preservation of Batswana’s culture, would give Dikgosi the powers they deserve.

According to many Dikgosi and other commentators that was not to be. In their view, though the Bogosi Act, Cap. 41:01 remedied some ills of its predecessor, the Chieftainship Act, it still has defects which are inimical to the preservation of Bogosi’s primacy in our culture as a people. Consequently, many Dikgosi, are today united in their advocacy for the repeal of certain sections of the Bogosi Act, Cap.41:01, especially sections 13 and 15 which give the Minister responsible for Bogosi, powers over Dikgosi, including the dreaded power of de-recognition.

In this two-part series, I consider the Bogosi Act, the question being whether or not it preserves the primacy of Bogosi. In this article, I deal with sections 4, 5, 6, 13, and 15 which deal with the definition of the word Kgosi, recognition of a Kgosi, designation of a Kgosi, removal of a Kgosi, and withdrawal of recognition of a Kgosi respectively. 

But before that, it is apposite that we put this issue into perspective. Some Dikgosi are on record arguing that since their positions are attained by birth, and they are responsible for a whole tribe, and politicians are, in fact, their subjects, they should rank above politicians. In their view, it is, therefore, anomalous that a Minister, who is a politician, should have the power to recognise them, supervise them and withdraw their recognition.

Kgosi Kebinatshwene Mosielele of Manyana has been quoted as saying “we have always maintained our stance that de-recognition of a Kgosi by the Minister should be removed. As a Kgosi you are born a leader so there is no how someone, a politician can have powers to de-recognise you.”

Many Dikgosi argue that the politicians’ power to recognise, supervise and de-recognise them not only makes them lose the respect of their subjects, but also has the possibility of being abused and used to further political objectives, something which would have dire consequences for tribal and national harmony. They give, as examples, the suspension of Kgosi Seepapitso IV of Bangwaketse and the de-recognition of Kgosi Kgafela II of Bakgatla in 1994 and 2011 respectively.

In their view, the fact that the late Chapson Jabavu Butale suspended Kgosi Seepapitso IV for, among other reasons, his alleged non-cooperation in preparations for the late Zambian President, Frederick Chiluba,’s visit to Botswana is one instance of abuse of power. The same applies to the other reason for his suspension, namely that a kgotla meeting which Butale was to address to explain the cancellation of Chiluba’s visit did not take place due to Kgosi Seepapitso IV’s alleged non-cooperation.

It is common knowledge that Kgosi Seepapitso IV’s suspension caused tribal divisions, especially when Butale appointed Kgosi Seepapitso IV’s son, the then heir apparent, the late Leema Gaseitsiwe, on an acting capacity. Kgosi Kgafela II’s derecognition not only divided Bakgatla, but also caused an eight-year stand-off between the tribe and government until he was re-recognised in 2019. Some believe that through his de-recognition, Bakgatla were being punished for voting for the Opposition.

When Kgosi Kgafela II was re-recognised in 2019, in the eve of the general elections, some regarded it as political posturing intended at gaining Bakgatla’s votes. When his younger brother, Honourable Mmusi Kgafela, won the Botswana Democratic Party (BDP) primary elections, and was later appointed a cabinet minister after winning the Mochudi West constituency for the BDP, many believed such was intended to solidify the seat for the BDP.   

Back to the impugned sections of the Bogosi Act, starting with Section 4. It defines a Kgosi as “an individual who- (a) possesses such minimum educational qualifications as may be prescribed from time to time;  (b) has been designated as Kgosi under section 6; and  (c) is recognised as a Kgosi by the Minister in accordance with the provisions of sections 6 and 21.”

Before we interrogate this section, it is apposite that we look as section 6. Section 6(1) provides that “where there is a vacancy in the Bogosi of a tribe, either by reason of death, deposition, abdication or retirement, it shall be the duty of the tribe assembled in the kgotla under the chairmanship of the senior member of the tribe to designate the rightful successor to the Bogosi according to customary law or according to the established norm and practice of that tribe.”

Section 6(2) provides that “subject to the provisions of sections 7 and 9, the Minister shall, by notice published in the Gazette, recognise the person so designated as Kgosi of such tribe.” In my view, unless if there are exceptional circumstances, considering the use of the peremptory word ‘shall’, the Minister has no discretion. He or she is obliged to uphold the tribe’s designation by recognising such a person as a Kgosi.

But, if the Minister, for whatever reason, even an unreasonable and/or irrational one, does not recognise such a person, such a person, notwithstanding the tribe’s designation, cannot be a Kgosi since section 4 provides that one only becomes a Kgosi after recognition as such by the Minister in accordance with the provisions of sections 6 and 21.

Section 21 (1) provides that “the Minister may, where a person has been designated as a Kgosi by a tribal community, recognise such person as Kgosi of that tribal community, and may, where he or she considers it appropriate, in like manner withdraw such recognition in accordance with section 15. The Minister can, therefore, nullify the tribe’s designation notwithstanding that the tribe has dully designated the rightful successor to the Bogosi according to customary law or according to the established norm and practice of that tribe. 

Second, is section 5(1). It provides that “ subject to the provisions of this Part and of section 22, no person shall hold or assume the Bogosi of any tribe or exercise or perform any of the powers or duties pertaining thereto unless he or she has been recognised as Kgosi of such tribe under the provisions of this Act. It ought to be stated that to the Bogosi Act’s credit, the Minister cannot recognise a person who has not been designated as the rightful successor by the tribe.

Section 6 (2) provides that ‘subject to the provisions of section 9, no person shall be recognised as Kgosi of any tribe unless he or she has been designated as the rightful successor thereto in accordance with section 6.’ In terms of the Act, such designation can only be made by the tribe.

Third, is section 13. Subsection (1) provides that ‘If-  (a) the Minister has reasonable cause to believe that the Kgosi of any tribe; or  (b) any tribe or section of a tribe lodges with the Minister a complaint that the Kgosi of that tribe, is incapable of exercising his or her powers, has abused his or her powers, is being insubordinate or is refusing or has refused to carry out lawful orders, or is for any reason not a fit and proper person to be a Kgosi, the Minister shall make such enquiry or cause such enquiry to be made as he or she may consider appropriate and shall afford the Kgosi an opportunity to be heard.’

Subsection (2) provides that ‘If after the holding of an enquiry under subsection (1), the allegations made against the Kgosi are proved, the Minister may-  (a) caution or reprimand the Kgosi;  (b) order the stoppage of increment of the salary of the Kgosi;  (c) suspend the Kgosi;  (d) if he or she considers it to be expedient and in the interest of peace, good order and good governance, depose such Kgosi or extend the suspension for a period not exceeding two years.

Subsection (3) provides that ‘where the allegations made against a Kgosi have not been substantiated at the enquiry, the Kgosi shall be reinstated.’ It is commendable that this section accords the Kgosi the right to a hearing. It is, however, disconcerting that in terms of this section, the Kgosi’s fate is in the hands of the Minister, acting alone. In my view, this may be subject to abuse, especially when the inquiry originates from the Minister in terms of subsection (1) (a) and not from the tribe or elsewhere.

Fourth, is section 15. It provides that ‘the Minister may, by notice published in the Gazette, at any time, withdraw recognition from a Kgosi if-  (a) the Kgosi has been deposed and his or her appeal against the deposition has been dismissed or the period allowed for appealing has elapsed without an appeal having been brought; or  (b) the Minister considers it to be in the public interest to withdraw recognition.

In my view, section 15(b) may be abused since the Minister may cite public interest, which may be an arbitrary consideration, to meet an ulterior and irrational purpose such as political objectives. I wish to submit that justice would be better served if the Constitution or the Bogosi Act, preferably the former, were amended to provide for a Bogosi Service Commission (BSC), with powers similar to the Judicial Service Commission (JSC).

The BSC, whose membership should be largely people knowledgeable on Bogosi and customary or cultural matters, could be vested with the powers to recommend the recognition, discipline (through a Disciplinary Tribunal), suspension, removal or de-recognition of Dikgosi. The statutory provisions in this regard could be such that once the BSC and the Tribunal makes a certain recommendation, the Minister is compelled to act in accordance with such recommendation in the same manner that the state President is so obliged in the case of judges.

Such provisions could, in my view, go a long way towards entrenching Dikgosi’s security of tenure, a cardinal requirement for their independence. Dikgosi’s independence is cardinal not only because they have a judicial function, but also because they should be apolitical since their subjects are of different political persuasions. 

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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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