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Does the Bogosi Act preserve the primacy of Bogosi?

Ndulamo Anthony Morima

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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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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