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

Ndulamo Anthony Morima

This is the last article in this three-part series. In the first article, 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. In the second article, we made a critique of Botswana’s tribal equality, considering the extent to which government has implemented the recommendations of the Commission.

As stated in that article, the Commission’s recommendations were implemented to a large extent through the amendment of sections 77, 78 and 79 of the Constitution of Botswana; the repeal of the Chieftainship Act, Cap. 41:01 and the enactment of the Bogosi Act, Cap. 41:01. Notable among the implemented recommendations are the establishment of Ntlo ya Dikgosi; the replacement of the word ‘Chief’ with ‘Kgosi’; the broadening of Ntlo ya Dikgosi’s composition to cover all geographic regions in the country, and the representation of minority tribes in Ntlo ya Dikgosi though that is by elected representatives and not ‘born Dikgosi’ as is the case with the eight tribes.

However, though the Commission had recommended that mention of a specific tribe should be removed from the Constitution or anywhere else it appears in order to address citizens' perception that sections 77,78 and 79 are discriminatory, that was not done.
The amended section 77 still mentions some of the eight tribes, but none of the minority tribes is mentioned. For instance, it mentions Ga Malete; Ga Mmangwato and Goo Tawana at subsections (1) (a) (iii); (1) (a) (iv) and (1) (a) (vi) respectively. It does not, for instance, make mention of Ku Bukalanga.  

Basubiya and Wayeyi, for instance, are subsumed under Chobe and Goo Tawana respectively. Bakalanga, Basarwa and Bakgalagadi are subsumed under North East District, Ghanzi District and Kgalagadi District respectively. Also, a revision of the recommendations was made in April 2002 through a government white paper titled ‘White Paper No.2 of 2002’ which opted to let the selection process for the House remain the same, allowing the eight Dikgosi of the main tribes to retain their posts, a move which the House of Chiefs itself approved.   

This week, we make a critique of Botswana’s tribal equality, considering the extent to which government has implemented the judgment of the Kamanakao I case per Nganunu C.J, Dibotelo J., and Dow J as they then were. The Kamanakao I case held 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…”

It held further 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…” It also 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…”

The court also 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…” According to section 2 of the repealed Chieftainship Act, Cap.41:01, ‘tribe’ meant “… the Bamangwato Tribe, the Batawana Tribe, the Bakgatla Tribe, the Bakwena Tribe, the Bangwaketse Tribe, the Bamalete Tribe, the Barolong Tribe or the Batlokwa Tribe.”

In terms of section 2 of the repealed Chieftainship Act, Cap.41:01, ‘Chief’ was defined as “a Chief of one of the tribes and includes any regent thereof.” As has been stated earlier, the Chieftainship Act, Cap.41:01 was repealed by section 29 of the Bogosi Act, Cap.41:01. The Bogosi Act came into effect on 30th April 2008. In terms of section 2 of the Bogosi Act, the word ‘tribe’ now means “… any tribal community in existence and recognised as a tribe immediately before the commencement of this Act and includes such other tribal communities as may be so recognised under section 3.”

In terms of section 2 of the Bogosi Act, the word ‘Kgosi’, which has replaced the word ‘Chief’, means “…a person so designated by the tribe and recognised as such by the Minister under section 4.” Section 3 (1) of the Bogosi Act provides that “the Minister, after consulting a tribal community in its Kgotla, may recognise that tribal community as a tribe” Section 3 (2) provides that “… in deciding whether a tribal community shall be recognised as a tribe, the Minister shall take into account the history, origins, and organisational structure of the community, and any other relevant matters.”

In terms hereof, the word tribe no longer only refers to the eight tribes. Also, it is no longer only the eight tribes which have a kgosi.  All other tribal communities, including the so-called minority tribes, have the right to be recognised as a tribe, and to, therefore, have a kgosi, if their history, origins, organisational structure, and any other relevant matters warrant such recognition. In that regard, the court’s ruling was abided by. This, in my view, significantly removed the discrimination complained of and accorded equal treatment and protection of the law to the so-called minority tribes as required by section 3(a) of the Constitution.

The court also 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…”

The court further 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…’’ Of course, from a legal point of view and on the basis of judicial precedent, the court was right in refusing to grant the aforesaid two orders prayed for.  

But, 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…”

In my view, constitutionalism and democracy would have been better served had government heeded the court’s statement above, especially with respect to the introduction of minority tribes’ languages as a medium of instruction in schools as well as mainstreaming minority tribes’ cultures in  the school curriculum though it was said obiter and had no binding effect.

No wonder in an Alternative Report submitted to the Human Rights Committee on the International Covenant on Civil and Political Rights (ICCPR) in May, 2007, RETENG: The Multicultural Coalition of Botswana wrote: “The amendments through Bill number 34 of 2005 were cosmetic and left the discrimination intact…”

The report continues to say “… The discrimination denies non-Tswana ethnic groups the following rights: a) group rights to land, b) representation in the House of Chiefs; c) the right to educate their children in their languages; c) the right to educate their children about their histories, customs, values and culture; d) the right to enjoy their languages and culture on national radio and television.” This view is supported by Francis B. Nyamnjoh in his journal article titled ‘Insiders and outsiders: citizenship and xenophobia in Southern Africa’.

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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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