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Does the Bogosi Act preserve the primacy of Bogosi? (Part II)

Ndulamo Anthony Morima

Last week, we looked at sections 4, 5, 6, 13, and 15 of the Bogosi Act, Cap. 41:01(‘the Act’) 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.

We should have also discussed section 14. Section 14(1) provides that ‘any person who is dissatisfied with the decision of the Minister deposing or suspending him or her as Kgosi may appeal in writing to the President against the decision within two months of the giving of the decision.’ Section 14(2) provides that ‘an appeal under this section shall not operate as a stay of execution of any order made by the Minister and such order shall be of full force and effect until such time as it is otherwise disposed of on the appeal.’

Though, in our view, it would be in the public interest that an appeal to the President operates as a stay of execution, we do not take serious issue with section 14 since an affected Kgosi can approach the courts for any appropriate relief, including a stay of execution. Last week, we concluded that sections 4, 5, 6, 13, and 15 do not preserve the primacy of Bogosi since they not only diminish Dikgosi’s powers, but also put Bogosi at the risk of politicisation, putting tribal and national harmony at risk.

We recommended that to remedy this defect, the Constitution and/or or the Bogosi Act, preferably the former, needed to be amended to provide for a Bogosi Service Commission (BSC), with powers similar to the Judicial Service Commission (JSC).  We suggested that 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.

In our view, the statutory provisions in this regard could be such that once the BSC 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 in terms of section 96(2) of the Constitution of Botswana which provides that “judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission”.

Such provisions could, in our view, go a long way towards entrenching Dikgosi’s security of tenure, a cardinal requirement for their independence. We argued that Dikgosi’s independence is cardinal not only because Dikgosi have a judicial function, but also because they should be apolitical since their subjects are of different political persuasions. This week, we consider sections 17(b), 20 and 27 of the Act. Section 17(b) provides that ‘It shall be the function of every Kgosi to carry out any lawful instructions given to him or her by the Minister.’

Some have taken issue with this section, arguing that the Minister may, in terms of this section, give a Kgosi an instruction which, though not unlawful, is inimical to the interests of his or her tribe or Bogosi in general, or is even inconsistent with the provisions of the Act. They argue that considering that the Minister is a politician who belongs to a political party, he or she may use this section to give instructions whose object is to further his or her political party’s interests.

Section 20(1) provides that ‘the Minister may issue directions in writing to any Kgosi, not inconsistent with the provisions of this Act, for the better carrying out of the provisions of this Act.’ Misgivings about this section have been given for the same reasons as discussed in relation to section 17(b) above. It, however, has to be noted that the Minister cannot give directions which are inconsistent with the provisions of the Act.

In our view, this limitation on the Minister’s powers, just like the limitation at section 17(b), is sufficient to safe guard the rights of Dikgosi, especially because the court’s jurisdiction to adjudicate on disputes thereof is not ousted by the Act.  Section 20 (2) provides that ‘any Kgosi who without good cause fails to comply with any directions given to him or her by the Minister shall be liable to be reprimanded, suspended, stoppage of increment of salary or deposed in accordance with the provisions of section 13.

As discussed last week, most, if not all, Dikgosi and many commentators are opposed to the Minister being bestowed with the power to discipline Dikgosi, let alone remove a Kgosi from office. Just to refresh our minds, 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. As stated in last week’s article, Kgosi Kebinatshwene Mosielele of Manyana is on record 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. But some have argued that section 20(2) is consistent with the Constitution of Botswana since it limits the Minister’s power, ensuring that he or does not abuse it by, for instance, using the power to meet an irrational purpose.

This, they say, is because, in terms of this section, a Kgosi can only be disciplined or removed if he or she, without good cause, fails to comply with any directions given to him or her by the Minister.  They argue that provided that the affected Kgosi demonstrates that he or she had good cause for failing to comply with any directions given to him or her by the Minister, discipline or removal cannot be visited upon him, and, if it has, would be set aside by a court of law.

I agree. My view in this regard is fortified by the fact that the court’s jurisdiction to adjudicate on disputes thereof is not ousted by the Act. Dikgosi can, therefore, rely on our courts, which are independent, to vindicate their rights. We now go to section 27. Section 27(1) provides that ‘notwithstanding any provision of any enactment to the contrary, no court shall have jurisdiction to hear and determine any cause or matter affecting Bogosi.’

If one reads section 27(1) in isolation or before reading section 27 (2) they may be alarmed thinking that our courts have no jurisdiction to adjudicate on any matter or dispute related to Bogosi. But that is not so. Section 27 (2) provides that ‘for the purposes of this section "cause or matter affecting Bogosi" means any cause, matter, question or dispute relating to any of the following-(a) the designation of any person as a Kgosi or the claim of any person to be designated or (b) the recognition of, appointment to be, or suspension of a person from being a Kgosi.’

In terms of section 27(2), the courts’ jurisdiction is only ousted in relation to any cause, matter, question or dispute relating to the designation of any person as a Kgosi or the claim of any person to be so designated or the recognition of, appointment to be, or suspension of a person from being a Kgosi. However, the courts have jurisdiction over all other matters, including those related to the reprimand, stoppage of increment of salary or deposing or de-recognition or removal of a Kgosi in accordance with the provisions of section 13 of the Act.

Some people argue that the ouster of the courts’ jurisdiction with respect to the designation of any person as a Kgosi or the claim of any person to be so designated as well as the recognition of, appointment to be, or suspension of a person from being a Kgosi is an unjustifiable limitation of one’s right to access to the law. I agree. In my view, there is no reason, even the often-cited public interest, national security or public order considerations, for someone who believes he or she is entitled to be designated as Kgosi to be denied the right to approach the courts to assert such right.

The same applies to someone who is aggrieved by the Minister’s decision not to recognise him or her as Kgosi; not to appoint him or her as Kgosi, or to suspend him or her from being a Kgosi.  Lastly, we look at section 28. It provides that the Minister may make regulations for any matter which is required to be prescribed or for the better carrying out of the provisions of this Act and without derogating from the generality of the foregoing, such regulations may prescribe-  (a) the general conditions of service of;  (b) the procedure for taking disciplinary actions against; and  (c) the punishment which may be awarded for breaches of discipline by, persons appointed under this Act.

In our view, whilst there is nothing fundamentally wrong with this section, there is need for a provision that the Minister shall make such regulations after consultation with Ntlo ya Dikgosi. Certainly, it is Dikgosi themselves who would know better what is best for them.

*Ndulamo Anthony Morima (LLM, LLB) is the Managing Partner of Morima Attorneys

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Export Processing Zones: How to Get SEZA to Sizzle

23rd September 2020
Export Processing Zone (EPZ) factory in Kenya

In 2005, the Business & Economic Advisory Council (BEAC) pitched the idea of the establishment of Special Economic Zones (SEZs) to the Mogae Administration.

It took five years before the SEZ policy was formulated, another five years before the relevant law was enacted, and a full three years before the Special Economic Zones Authority (SEZA) became operational.

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Egypt Bagged Again

23rd September 2020

… courtesy of infiltration stratagem by Jehovah-Enlil’s clan

With the passing of Joshua’s generation, General Atiku, the promised peace and prosperity of a land flowing with milk and honey disappeared, giving way to chaos and confusion.

Maybe Joshua himself was to blame for this shambolic state of affairs. He had failed to mentor a successor in the manner Moses had mentored him. He had left the nation without a central government or a human head of state but as a confederacy of twelve independent tribes without any unifying force except their Anunnaki gods.

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23rd September 2020

If I say the word ‘robot’ to you,  I can guess what would immediately spring to mind –  a cute little Android or animal-like creature with human or pet animal characteristics and a ‘heart’, that is to say to say a battery, of gold, the sort we’ve all seen in various movies and  tv shows.  Think R2D2 or 3CPO in Star Wars, Wall-E in the movie of the same name,  Sonny in I Robot, loveable rogue Bender in Futurama,  Johnny 5 in Short Circuit…

Of course there are the evil ones too, the sort that want to rise up and eliminate us  inferior humans – Roy Batty in Blade Runner, Schwarzenegger’s T-800 in The Terminator,  Box in Logan’s Run,  Police robots in Elysium and  Otomo in Robocop.

And that’s to name but a few.  As a general rule of thumb, the closer the robot is to human form, the more dangerous it is and of course the ultimate threat in any Sci-Fi movie is that the robots will turn the tables and become the masters, not the mechanical slaves.  And whilst we are in reality a long way from robotic domination, there are an increasing number of examples of  robotics in the workplace.

ROBOT BLOODHOUNDS Sometimes by the time that one of us smells something the damage has already begun – the smell of burning rubber or even worse, the smell of deadly gas. Thank goodness for a robot capable of quickly detecting and analyzing a smell from our very own footprint.

A*Library Bot The A*Star (Singapore) developed library bot which when books are equipped with RFID location chips, can scan shelves quickly seeking out-of-place titles.  It manoeuvres with ease around corners, enhances the sorting and searching of books, and can self-navigate the library facility during non-open hours.

DRUG-COMPOUNDING ROBOT Automated medicine distribution system, connected to the hospital prescription system. It’s goal? To manipulate a large variety of objects (i.e.: drug vials, syringes, and IV bags) normally used in the manual process of drugs compounding to facilitate stronger standardisation, create higher levels of patient safety, and lower the risk of hospital staff exposed to toxic substances.

AUTOMOTIVE INDUSTRY ROBOTS Applications include screw-driving, assembling, painting, trimming/cutting, pouring hazardous substances, labelling, welding, handling, quality control applications as well as tasks that require extreme precision,

AGRICULTURAL ROBOTS Ecrobotix, a Swiss technology firm has a solar-controlled ‘bot that not only can identify weeds but thereafter can treat them. Naio Technologies based in southwestern France has developed a robot with the ability to weed, hoe, and assist during harvesting. Energid Technologies has developed a citrus picking system that retrieves one piece of fruit every 2-3 seconds and Spain-based Agrobot has taken the treachery out of strawberry picking. Meanwhile, Blue River Technology has developed the LettuceBot2 that attaches itself to a tractor to thin out lettuce fields as well as prevent herbicide-resistant weeds. And that’s only scratching the finely-tilled soil.

INDUSTRIAL FLOOR SCRUBBERS The Global Automatic Floor Scrubber Machine boasts a 1.6HP motor that offers 113″ water lift, 180 RPM and a coverage rate of 17,000 sq. ft. per hour

These examples all come from the aptly-named site    because while these functions are labour-saving and ripe for automation, the increasing use of artificial intelligence in the workplace will undoubtedly lead to increasing reliance on machines and a resulting swathe of human redundancies in a broad spectrum of industries and services.

This process has been greatly boosted by the global pandemic due to a combination of a workforce on furlough, whether by decree or by choice, and the obvious advantages of using virus-free machines – I don’t think computer viruses count!  For example, it was suggested recently that their use might have a beneficial effect in care homes for the elderly, solving short staffing issues and cheering up the old folks with the novelty of having their tea, coffee and medicines delivered by glorified model cars.  It’s a theory, at any rate.

Already, customers at the South-Korean  fast-food chain No Brand Burger can avoid any interaction with a human server during the pandemic.  The chain is using robots to take orders, prepare food and bring meals out to diners.  Customers order and pay via touchscreen, then their request is sent to the kitchen where a cooking machine heats up the buns and patties. When it’s ready, a robot ‘waiter’ brings out their takeout bag.   

‘This is the first time I’ve actually seen such robots, so they are really amazing and fun,’ Shin Hyun Soo, an office worker at No Brand in Seoul for the first time, told the AP. 

Human workers add toppings to the burgers and wrap them up in takeout bags before passing them over to yellow-and-black serving robots, which have been compared to Minions. 

Also in Korea, the Italian restaurant chain Mad for Garlic is using serving robots even for sit-down customers. Using 3D space mapping and other technology, the electronic ‘waiter,’ known as Aglio Kim, navigates between tables with up to five orders.  Mad for Garlic manager Lee Young-ho said kids especially like the robots, which can carry up to 66lbs in their trays.

These catering robots look nothing like their human counterparts – in fact they are nothing more than glorified food trolleys so using our thumb rule from the movies, mankind is safe from imminent takeover but clearly  Korean hospitality sector workers’ jobs are not.

And right there is the dichotomy – replacement by stealth.  Remote-controlled robotic waiters and waitresses don’t need to be paid, they don’t go on strike and they don’t spread disease so it’s a sure bet their army is already on the march.

But there may be more redundancies on the way as well.  Have you noticed how AI designers have an inability to use words of more than one syllable?  So ‘robot’ has become ‘bot’ and ‘android’ simply ‘droid?  Well, guys, if you continue to build machines ultimately smarter than yourselves you ‘rons  may find yourself surplus to requirements too – that’s ‘moron’ to us polysyllabic humans”!

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