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

Ndulamo Anthony Morima
Eagle WATCH

Last week, we made an exposition of the circumstances leading to the Balopi Commission (“the Commission”)’s establishment and its terms of reference and recommendations.

We also made an exposition of the Kamanakao I case, giving a summary of the issues which were before court; the submissions by the parties and the court’s decision.This week, we shall make a critique of Botswana’s tribal equality, considering the extent to which government has implemented the recommendations of the Commission.

The Commission’s terms of reference were threefold, namely "(a) to review sections 77, 78, and 79 of the 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.”

As stated before, one of the Commission’s 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 Constitution of Botswana (“the Constitution”) was indeed amended to give effect to this recommendation. Prior to the amendment, section 77(1) provided for a House of Chiefs consisting of eight ex-officio Members; four Elected Members; and three Specially Elected Members.

Section 77(1)(a), as amended, established Ntlo ya Dikgosi in place of the House of Chiefs as per the Commission’s recommendation. It also provides for the composition of Ntlo ya Dikgosi. While this constitutional amendment must be commended for establishing Ntlo ya Dikgosi and broadening its composition to cover all geographic regions in the country, it must be condemned for mentioning specific tribes by name and not mentioning others.

The Commission had specifically recommended that in order to address citizens' perception that sections 77,78 and 79 are discriminatory, mention of a specific tribe should be removed from the Constitution or anywhere else it appears. Interestingly, there is mention of all the tribes except those that had been complaining of marginalisation, namely Basubiya, Wayeyi, Bakalanga, Basarwa, Bakgalagadi, Baherero, Bambukushu, etc.

Basubiya and Wayeyi are subsumed under Chobe and Goo Tawana respectively. Bakalanga, Basarwa and Bakgalagadi are subsumed under North East District, Ghanzi District and Kgalagadi District respectively.  Section 77(1) (b), as amended, provides for five persons who shall be appointed by the President. This is another malady because it allows for the politicisation of Bogosi. Like every politician, the President is likely to appoint those who are aligned to his political party.

Section 77(1) (c), as amended, provides for such number of persons, not being more than 20, as may be selected under section 78(4)(c) of the Constitution. Section 78(4) (c) of the Constitution provides that members from Ghanzi, Chobe, Kgalagadi and North East shall not be designated to Ntlo ya Dikgosi according to the established norms and practices of those areas.

It is only Bamangwato, Bakwena, Bangwaketse, Batawana, Batlokwa, Bakgatla, Barolong and Balete who have the right to designate their Dikgosi according their established norms and practices. This implies that the other tribes have no norms and practices worthy of designating their own Kgosi. Because Basarwa, Bakgalagadi, Basubiya and Bakalanga are not bestowed with the right to designate their Dikgosi according to their own established norms and practices, they, in terms of section 78, as amended,  select a Member to Ntlo ya Dikgosi by election or in such other manner as the Regional Electoral College may agree. Invariably, such selection is done through elections.

In this way, they, in my view, select a regional representative rather than a Kgosi. Not only does this lower the tribes’status; it also increases the chances of politicisation of Bogosi because where votes count, politics invariably creeps in. The second recommendation of the Commission was that the word "chief" in the Constitution, a remnant of the British monarchy, should be replaced with the word Kgosi. This has been implemented.

On 30th April 2008, the Bogosi Act, Cap. 41:01 (hereinafter referred to as the Bogosi Act) came into effect. Through section 29, the Bogosi Act repealed the Chieftainship Act, Cap. 41:01 which was blamed by many for being the enabler for tribalism. The Bogosi Act replaced the word "chief"  with the word “ HYPERLINK "https://en.wikipedia.org/wiki/Kgosi" o "Kgosi" Kgosi” as recommended.  

The third recommendation of the Commission 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.Indeed, the House of Chiefs has been retained and renamed Ntlo ya Dikgosi. Sections 77, 78 and 79 of the Constitution, as amended, regulate the establishment and composition of Ntlo ya Dikgosi, designation and selection of Members to Ntlo ya Dikgosi and the qualifications for membership of Ntlo ya Dikgosi.

The fourth recommendation of the Commission was that the members of the House of Chiefs(now Ntlo ya Dikgosi) should not be allowed to join  "List of political parties in Botswana" political parties. This, too, has been implemented.Section 79 (4) of the Constitution, as amended, provides that “a Member of the Ntlo ya Dikgosi shall not, while he or she is such a Member, participate in party politics, but active participation in politics prior to being a Member of the Ntlo ya Dikgosi shall not bar any person from being such a Member.

The fifth recommendation of the Commission was that members of the House of Chiefs (now Ntlo ya Dikgosi) 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 members in the House. As argued above, this has neither brought tribal parity nor ended the perception of tribal discrimination because, in essence, it is largely the so-called minority tribes who choose their representatives to Ntlo ya Dikgosi based on tribal territorial claims.

On the other hand, the so-called main tribes have their Dikgosi, who are Dikgosi by birth and whom they designate according to their own established norms and practices, as their representatives in Ntlo ya Dikgosi. Not only that. The so-called minority tribes are not allowed to designate their representatives to Ntlo ya Dikgosi according to their established norms and practices. This privilege is reserved for the so-called main tribes.

Of course, the aforesaid shortcomings notwithstanding, government has, through amending sections 77,78 and 79 of the Constitution, as well as repealing the Chieftainship Act and enacting the Bogosi Act, significantly moved Botswana towards tribal equality. In my view, legislative amendment needs to be made to make mention of all our tribes in the Constitution, the Bogosi Act and any other relevant legislation.

Also, legislative amendment needs to be made to provide for the same method for the designation of a Kgosi for all tribes. If designation is to be according to established norms and practices of a tribe, that should apply for all tribes. On the contrary, if designation is to be through elections, that should apply for all tribes. I am, however, hesitant to endorse this method for Dikgosi are born, not voted into office.

It is incontrovertible though that compared to the period before the amendment of sections 77,78 and 79 of the Constitution, and the repeal of the Chieftainship Act and enactment of the Bogosi Act, tribal equality has improved, and we have a more cohesive nation. This, in my view, is evidenced by the fact that such tribal pressure groups as Kamanakao Association, Special Promotion of Ikalanga Language and First People of the Kalahari are almost non-existent.  

Of course, especially during the heat of the 2019 general elections, the rivalry between former president Khama and President Masisi threatened to open the tribal wounds between Bangwato and other tribes, but such wounds have not festered beyond the elections.  

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

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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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