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Botswana’s tribal equality: 20 years after the Balopi Commission and Kamanakao case (Part I)

Ndulamo Anthony Morima
Eagle WATCH

It is almost twenty years since two historical events took place in as far as Botswana’s tribal equality is concerned. These two historical events are the Presidential Commission of Inquiry  into Sections 77, 78 and 79 of the "Constitution of Botswana" Constitution (“the Balopi Commission”) and the Kamanakao I and Others v. The Attorney-General and Another 2001 (2) BLR 654 (HC) (“ the Kamanakao I case”).

In this series, we consider whether Botswana has, almost twenty years since these two historical events took place, made any significant strides towards the attainment of tribal equality. This, we shall do by considering, inter alia, the implementation or lack thereof of the recommendations of the Balopi Commission and the judgment of the Kamanakao I case per Nganunu C.J, Dibotelo J., and Dow J as they then were.

To lay a basis for this discussion, we shall, in this article, make an exposition of the circumstances leading to the Commission’s establishment; and the Commission’s terms of reference and recommendations. We shall also make an exposition of the Kamanakao I case, making a summary of the issues before court; the submissions by the parties and the court’s decision. In part II, we shall make a critique of Botswana’s tribal equality, considering the extent to which government has implemented the recommendations of the Balopi Commission.

In part III, we shall make a critique of Botswana’s tribal equality, considering the extent to which government has implemented the judgement of the Kamanakao I case. For many years, there had been a perception that the Constitution of Botswana (“the Constitution”) had some sections that promoted tribal discrimination. The impugned sections of the Constitution were sections 77, 78 and 79 which many believed perpetuated tribal inequality between the so-called main tribes and minority tribes.

As far back as 1995, then Member of Parliament (MP) for Nata-Gweta, "Olifant Mfa (page does not exist)" Olifant Mfa, had moved a motion calling upon government to amend sections 77, 78 and 79 so that they become tribally neutral. Unfortunately, this call was not heeded to. Regrettably, at the time, our language was littered with two undesirable nomenclature- the so-called main tribes and minority tribes.

The so-called minority tribes, all of which had no paramount chief, included Wayeyi, Bakalanga, Bambukushu, Baherero, Basarwa, Bakgalagadi, Basubiya etc. On the contrary, the so-called main tribes, all of which had a paramount chief who was an ex-officio member of the House of Chiefs, were the Bamangwato, Bakwena, Bangwaketse, Batawana, Batlokwa, Bakgatla, Barolong and Balete.

Obviously in protest to this, the Wayeyi, a tribe under Batawana rule and domination, did, on 24th April 1999, install their own "Paramount chief" paramount chief, "Shikati Calvin Kamanakao (page does not exist)" Shikati Calvin Kamanakao.

It is common course that they did this contrary to the  HYPERLINK "https://en.wikipedia.org/w/index.php?title=Chieftainship_Act&action=edit&redlink=1" o "Chieftainship Act (page does not exist)" Chieftainship Act (Cap. 41:01), the  HYPERLINK "https://en.wikipedia.org/w/index.php?title=Tribal_Land_Territory_Act&action=edit&redlink=1" o "Tribal Land Territory Act (page does not exist)" Tribal Land Territories Act, and  HYPERLINK "https://www.webcitation.org/69RFCfQsa?url=http://www.commonlii.org/bw/legis/const/1966/1.html" sections 77, 78 and 79 of the  HYPERLINK "https://en.wikipedia.org/wiki/Constitution_of_Botswana" o "Constitution of Botswana" Constitution of Botswana.

In response to this, the then Deputy Attorney General, Ian Kirby, on 15th July 1999, wrote to the Wayeyi, informing them that since they are not a recognized tribe, they could not install their own paramount chief.

As was expected, the Wayeyi, who were supported by Kamanakao Association which was founded by Professor  HYPERLINK "https://en.wikipedia.org/w/index.php?title=Lydia_Nyati-Ramahobo&action=edit&redlink=1" o "Lydia Nyati-Ramahobo (page does not exist)" Lydia Nyati-Ramahobo in 1995, challenged government’s decision, something which resulted in some disquiet.

In response to this disquiet, which threatened Botswana’s national unity and peace and stability, President  HYPERLINK "https://en.wikipedia.org/wiki/Festus_Mogae" Festus Mogae, on 28th July 2000, established a twenty-one member Presidential Commission of Inquiry into Sections 77, 78 and 79 of the Constitution of Botswana (“ the Balopi Commission”).

The Balopi Commission’s terms of reference were threefold, namely "(a) to review sections 77, 78, and 79 of the "Constitution of Botswana" Constitution of Botswana and to seek a construction that would eliminate any interpretation that renders the sections discriminatory; (b) to review and propose the most effective method of selecting members of the  "Ntlo ya Dikgosi" House of Chiefs; and (c) to propose and recommend measures to enhance the efficiency and effectiveness of the House of Chiefs.”

The Commission, which according to Ramahobo, collected public opinions by visiting 41 villages and towns; holding 43 public meetings; listening to 38 oral submissions, and receiving 10 group and 40 individual written submissions, made recommendations to government through White Paper No.1 of 2001.

One of the recommendations was that even if sections 77, 78 and 79 are not unfair, they, and any other mention of a specific tribe, should be removed from the Constitution due to the citizens' perception that they are discriminatory. The second was that the word "chief" in the Constitution, a remnant of the British monarchy, should be replaced with the word "Kgosi" Kgosi. The third was that the House of Chiefs of Botswana should continue to exist as it represents the country's unity, and it should be renamed "Ntlo ya Dikgosi" Ntlo ya Dikgosi.

The fourth was that the members of the House of Chiefs should not be allowed to join "List of political parties in Botswana" political parties. The fifth was that members of the House of Chiefs should be chosen based on tribal territorial claims, creating geographically based representation rather than the old method of specifying which tribes can have  "Ex officio member" ex officio members in the House.

In 2001, the Wayeyi took government’s decision to deny them the right to install their own chief to court. The question before the court was whether the failure by the Constitution and Chieftainship Act (Cap. 41:01) to acknowledge Wayeyi tribe and to allow them to have their members sit as members of the House of Chiefs discriminated unfairly against them.

In that case, Kamanakao I and Others v. The Attorney-General and Another 2001 (2) BLR 654 (HC) (“ the Kamanakao I case”), the Wayeyi tribe, led by Chief Kamanakao, argued that sections 77, 78 and 79 were inconsistent with the fundamental rights provisions of sections 3 and 15 of the Constitution.

They also argued that sections 77, 78 and 79 were discriminatory on the basis of tribalism contrary to sections 3 and 15. Their other contention was that the sections were unjustifiably discriminatory on the basis of tribalism as they afforded preferential treatment to ex-officio members of the House of Chiefs.

The Wayeyi wanted the court to make several orders. The first was an order declaration that section 2 of the Chieftainship Act (Cap. 41:01) was unconstitutional as it was discriminatory on the basis of tribe particularly in that it interpreted "tribe" to mean only eight tribes to the exclusion of other tribes in Botswana. The second was an order declaring that the Chieftainship Act and the Tribal Territories Act (Cap. 32:03) were discriminatory in that they discriminated on the basis of tribe.

The third was an order declaring that the second Respondent's decision not to recognise Shikati Kamanakao as paramount chief of Wayeyi was discriminatory on the basis of tribe and ultra vires the provisions of sections 3 and 15 of the Constitution. The fourth was an order compelling the second Respondent to put in place a constitutional structure for the appointment of chiefs, headmen and other Wayeyi traditional authorities.

The fifth was an order that the second Respondent introduce Shiyeyi language as a national medium of instruction in schools and that the culture of the Wayeyi be part of the school curriculum. The Respondents contended that in so far as the sections complained of were part of the Constitution, they could not be declared null and void by the High Court or any other court which was itself a creature of the Constitution.

The also contended that the Constitution was a package arrived at after negotiations and all that it contained was approved by the founders as part of the State: to declare any part of that package as unconstitutional would be to rewrite the package: the judiciary was also part of that package and it could not supervise post facto what was done and sealed then. The further contended that no court of the land could declare any part of the Constitution as null and void.

Responding to the argument that the Chieftainship Act and the Tribal Territories Act were discriminatory, the Respondents contended that the provisions of the Acts were saved by the provisions of section 15(4)(e) of the Constitution which permitted discrimination in certain special circumstances.

They further argued that that section 15(9) applied to exempt the Chieftainship Act and Tribal Territories Acts from falling foul of the anti-discrimination provisions of the Constitution because they were Acts that repealed and re-enacted provisions which had existed immediately prior to the coming into operation of the Constitution and had since been continued.

The court held, firstly, that “without being designated a tribe under the Chieftainship Act the Wayeyi and any other tribe could not have a chief and in these circumstances the Chieftainship Act did not afford the Applicants equal treatment and they therefore did not enjoy equal protection under that law as required by section 3(a) of the Constitution…”

Secondly, it held that “…the Respondent had not placed any special circumstances before the court that could justify the differentiation between tribe and tribe in Botswana which would bring the provisions of section 15(4)(e) into operation…” Thirdly, it held that “…in defining "chief" and "tribe" under section 2 of the Chieftainship Act to refer only to eight tribes and not the applicants, the Act did not afford equal protection of the law to the Wayeyi and the Applicants and to that extent the Act was in conflict with section 3(a) of the Constitution and contravened the rights of the Applicants…”

Fourth, the court held that “…as to the orders which had to be made to give effect to the Applicants' requirements for orders to compel the government to appoint and recognise Wayeyi chiefs, their headmen and other traditional leaders and to give effect to the orders to introduce their language as a medium of instruction and their culture to be part of their school curriculum, the courts, as a matter of judicial policy, were reluctant to issue orders for the carrying out of works and other activities which required the courts' supervision…”

Fifth, the court held that  “…the order for the recognition of the first Applicant as chief of the Wayeyi had to fail as there was a dispute of facts which could not be resolved whether he could legitimately claim the chieftainship and by granting the relief the court would be second guessing the legislature as regards its response to the court's decision…’’

Sixth, the court held that “… section 2 of the Chieftainship Act had to be amended in such a way as would remove the discrimination complained of and give equal treatment to all tribes under that Act. If other laws had to be amended to accord the Applicants this right then necessary action had to follow…”

Obiter,  the court stated that “… its refusal to order as applied for was not an expression that the issues in the case had to be ignored: on the contrary there was an urgent requirement on the part of the government to attend to them lest they bedevilled the spirit of goodwill existing between the different tribes and communities in the country…”

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

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The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

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A Strong Marriage Bond Needs Two

8th December 2020

Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).

This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.

In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.

Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?

Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.

POSITIVITY
Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.

“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)

We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions.
Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”

UNDERSTANDING

Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.

Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be.  You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”

COMMITMENT

Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.

When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.

ACCEPTANCE

Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.

However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.”
“Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)

COMPASSION, MUTUAL LOVE AND RESPECT

Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.

It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.

Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.

Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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