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

Ndulamo Anthony Morima

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 "" o "Chieftainship Act (page does not exist)" Chieftainship Act (Cap. 41:01), the  HYPERLINK "" o "Tribal Land Territory Act (page does not exist)" Tribal Land Territories Act, and  HYPERLINK "" sections 77, 78 and 79 of the  HYPERLINK "" 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 "" 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 "" 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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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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