Botswana�s tribal equality: 20 years after the Balopi Commission and Kamanakao case (Part III)
Columns
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.
Eagle WATCH
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’.
Columns
GONE FISHING
In recent years, using personal devices in working environments has become so commonplace it now has its own acronym, BOYD (Bring Your Own Device). But as employees skip between corporate tools and personal applications on their own devices, their actions introduce a number of possible risks that should be managed and mitigated with careful consideration. Consider these examples:
Si-lwli, a small family-run business in Wales, is arguably as niche a company as you could find, producing talking toys used to promote the Welsh language. Their potential market is small, with only some 300,000 Welsh language speakers in the world and in reality the business is really more of a hobby for the husband-and-wife team, who both still have day jobs. Yet, despite still managing to be successful in terms of sales, the business is now fighting for survival after recently falling prey to cybercriminals. Emails between Si-Iwli and their Chinese suppliers were intercepted by hackers who altered the banking details in the correspondence, causing Si-Iwli to hand over £18,000 (around P ¼ m) to the thieves. That might not sound much to a large enterprise, but to a small or medium business it can be devastating.
Another recent SMB hacking story which appeared in the Wall Street Journal concerned Innovative Higher Ed Consulting (IHED) Inc, a small New York start-up with a handful of employees. IHED didn’t even have a website, but fraudsters were able to run stolen credit card numbers through the company’s payment system and reverse the charges to the tune of $27,000, around the same loss faced by Si-Iwli. As the WSJ put it, the hackers completely destroyed the company, forcing its owners to fold.
And in May 2019, the city of Baltimore’s computer system was hit by a ransomware attack, with hackers using a variant called RobinHood. The hack, which has lasted more than a month, paralysed the computer system for city employees, with the hackers demanding a payment in Bitcoin to give access back to the city.
Of course, hackers target governments or business giants but small and medium businesses are certainly not immune. In fact, 67% of SMBs reported that they had experienced a cyber attack across a period of 12 months, according to a 2018 survey carried out by security research firm Ponemon Institute. Additionally, Verizon issued a report in May 2019 that small businesses accounted for 43% of its reported data breaches. Once seen as less vulnerable than PCs, smartphone attacks are on the rise, with movements like the Dark Caracal spyware campaign underlining the allure of mobile devices to hackers. Last year, the US Federal Trade Commission released a statement calling for greater education on mobile security, coming at a time when around 42% of all Android devices are believed to not carry the latest security updates.
This is an era when employees increasingly use their smartphones for work-related purposes so is your business doing enough to protect against data breaches on their employees’ phones? The SME Cyber Crime Survey 2018 carried out for risk management specialists AON showed that more than 80% of small businesses did not view this as a threat yet if as shown, 67% of SMBs were said to have been victims of hacking, either the stats are wrong or business owners are underestimating their vulnerability. A 2019 report by PricewaterhouseCoopers suggests the latter, stating that the majority of global businesses are unprepared for cyber attacks.
Consider that a workstation no longer means a desk in an office: It can be a phone in the back of a taxi or Uber; a laptop in a coffee shop, or a tablet in an airport lounge. Wherever the device is used, employees can potentially install applications that could be harmful to your business, even from something as seemingly insignificant as clicking on an accidental download or opening a link on a phishing email. Out of the physical workplace, your employees’ activities might not have the same protections as they would on a company-monitored PC.
Yet many businesses not only encourage their employees to work remotely, but assume working from coffee shops, bookstores, and airports can boost employees’ productivity. Unfortunately, many remote hot spots do not provide secure Wi-Fi so if your employee is accessing their work account on unsecured public Wi-Fi, sensitive business data could be at risk. Furthermore, even if your employee uses a company smartphone or has access to company data through a personal mobile device, there is always a chance data could be in jeopardy with a lost or stolen device, even information as basic as clients’ addresses and phone numbers.
BOYDs are also at risk from malware designed to harm and infect the host system, transmittable to smartphones when downloading malicious third-party apps. Then there is ransomware, a type of malware used by hackers to specifically take control of a system’s data, blocking access or threatening to release sensitive information unless a ransom is paid such as the one which affected Baltimore. Ransomware attacks are on the increase, predicted to occur every 14 seconds, potentially costing billions of dollars per year.
Lastly there is phishing – the cyber equivalent of the metaphorical fishing exercise – whereby cybercriminals attempt to obtain sensitive data –usernames, passwords, credit card details –usually through a phoney email designed to look legitimate which directs the user to a fraudulent website or requests the data be emailed back directly. Most of us like to think we could recognize a phishing email when we see it, but these emails have become more sophisticated and can come through other forms of communication such as messaging apps.
Bottom line is to be aware of the potential problems with BOYDs and if in doubt, consult your IT security consultants. You can’t put the own-device genie back in the bottle but you can make data protection one of your three wishes!
Columns
“I Propose to Diana Tonight”
About five days before Princess Diana and Dodi Al Fayed landed in Paris, General Atiku, a certain Edward Williams was taking a walk in a woods in the Welsh town of Mountain Ash. Williams, then 73, was a psychic of some renown. He had in the past foretold assassination attempts on US President Ronald Reagan, which occurred on March 30, 1981, and Pope John Paul II, which came to pass on May 13, 1981.
As he trudged the woods, Williams had a sudden premonition that pointed to Diana’s imminent fate as per Christopher Andersen’s book The Day Diana Died. “When the vision struck me, it was as if everything around me was obscured and replaced by shadowy figures,” Williams was later to reminisce. “In the middle was the face of Princess Diana. Her expression was sad and full of pathos. She was wearing what looked like a floral dress with a short dark cardigan. But it was vague. I went cold with fear and knew it was a sign that she was in danger.”
Williams hastily beat a retreat to his home, which he shared with his wife Mary, and related to her his presentiment, trembling like an aspen leaf as he did so. “I have never seen him so upset,” Mary recounted. “He felt he was given a sign and when he came back from his walk he was deeply shaken.”
The following day, Williams frantically sauntered into a police station to inform the police of his premonition. The officer who attended to him would have dismissed him as no more than a crackpot but he treated him seriously in view of the accuracy of his past predictions. He took a statement and immediately passed it on to the Special Branch Investigative Unit.
The report read as follows:
“On 27 August, at 14:12 hrs, a man by the name of Edward Williams came to Mountain Ash police station. He said he was a psychic and predicted that Princess Diana was going to die. In previous years, he has predicted that the Pope and Ronald Reagan were going to be the victims of assassination attempts. On both occasions he was proved to be correct. Mr Williams appeared to be quite normal.”
Williams, General, was spot-on as usual: four days later, the princess was no more.
Meanwhile, General, even as Dodi and Diana were making their way to the Fayed-owned Ritz Hotel in central Paris, British newspapers were awash with headlines that suggested Diana was kind of deranged. Writes Andrew Morton in Diana in Pursuit of Love: “In The Independent Diana was described as ‘a woman with fundamentally nothing to say about anything’. She was ‘suffering from a form of arrested development’. ‘Isn’t it time she started using her head?’ asked The Mail on Sunday. The Sunday Mirror printed a special supplement entitled ‘A Story of Love’; The News of the World claimed that William had demanded that Diana should split from Dodi: ‘William can’t help it, he just doesn’t like the man.’ William was reportedly ‘horrified’ and ‘doesn’t think Mr Fayed is good for his mother’ – or was that just the press projecting their own prejudices? The upmarket Sunday Times newspaper, which had first serialised my biography of the princess, now put her in the psychiatrist’s chair for daring to be wooed by a Muslim. The pop-psychologist Oliver James put Diana ‘On the Couch’, asking why she was so ‘depressed’ and desperate for love. Other tabloids piled in with dire prognostications – about Prince Philip’s hostility to the relationship, Diana’s prospect of exile, and the social ostracism she would face if she married Dodi.”
DIANA AND DODI AT THE RITZ
Before Diana and Dodi departed the Villa Windsor sometime after 16 hrs, General, one of Dodi’s bodyguards Trevor Rees-Jones furtively asked Diana as to what the programme for the evening was. This Trevor did out of sheer desperation as Dodi had ceased and desisted from telling members of his security detail, let alone anyone else for that matter, what his onward destination was for fear that that piece of information would be passed on to the paparazzi. Diana kindly obliged Trevor though her response was terse and scarcely revealing. “Well, eventually we will be going out to a restaurant”, that was all Diana said. Without advance knowledge of exactly what restaurant that was, Trevor and his colleagues’ hands were tied: they could not do a recce on it as was standard practice for the security team of a VIP principal. Dodi certainly, General, was being recklessly by throwing such caution to the winds.
At about 16:30, Diana and Dodi drew up at the Ritz Hotel, where they were received by acting hotel manager Claude Roulet. The front entrance of the hotel was already crawling with paparazzi, as a result of which the couple took the precaution of using the rear entrance, where hopefully they would make their entry unperturbed and unmolested. The first thing they did when they were ensconced in the now $10,000 a night Imperial Suite was to spend some time on their mobiles and set about touching base with friends, relations, and associates. Diana called at least two people, her clairvoyant friend Rita Rogers and her favourite journalist Richard Kay of The Daily Mail.
Rita, General, was alarmed that Diana had proceeded to venture to Paris notwithstanding the warning she had given Dodi and herself in relation to what she had seen of him in the crystal ball when the couple had consulted her. When quizzed as to what the hell she indeed was doing in Paris at that juncture, Diana replied that she and Dodi had simply come to do some shopping, which though partially true was not the material reason they were there. “But Diana, remember what I told Dodi,” Rita said somewhat reprovingly. Diana a bit apprehensively replied, “Yes I remember. I will be careful. I promise.” Well, she did not live up to her promise as we shall soon unpack General.
As for Richard Kay, Diana made known to him that, “I have decided I am going to radically change my life. I am going to complete my obligations to charities and to the anti-personnel land mines cause, but in November I want to completely withdraw from formal public life.”
Once she was done with her round of calls, Diana went down to the hair saloon by the hotel swimming pool to have her hair washed and blow-dried ahead of the scheduled evening dinner.
THE “TELL ME YES” RING IS DELIVERED
Since the main object of their Paris trip was to pick up the “Tell Me Yes” engagement ring Dodi had ordered in Monte Carlo a week earlier, Dodi decided to check on Repossi Jewellery, which was right within the Ritz prencincts, known as the Place Vendome. It could have taken less than a minute for Dodi to get to the store on foot but he decided to use a car to outsmart the paparazzi invasion. He was driven there by Trevor Rees-Jones, with Alexander Kez Wingfield and Claude Roulet following on foot, though he entered the shop alone.
The Repossi store had closed for the holiday season but Alberto Repossi, accompanied by his wife and brother-in-law, had decided to travel all the way from his home in Monaco and momentarily open it for the sake of the potentially highly lucrative Dodi transaction. Alberto, however, disappointed Dodi as the ring he had chosen was not the one he produced. The one he showed Dodi was pricier and perhaps more exquisite but Dodi was adamant that he wanted the exact one he had ordered as that was what Diana herself had picked. It was a ploy on the part of Repossi to make a real killing on the sale, his excuse to that effect being that Diana deserved a ring tha was well worthy of her social pedigree. With Dodi having expressed disaffection, Repossi rendered his apologies and assured Dodi he would make the right ring available shortly, whereupon Dodi repaired back to the hotel to await its delivery. But Dodi did insist nonetheless that the pricier ring be delivered too in case it appealed to Diana anyway.
Repossi delivered the two rings an hour later. They were collected by Roulet. On inspecting them, Dodi chose the very one he had seen in Monte Carlo, apparently at the insistence of Diana. There is a possibility that Diana, who was very much aware of her public image and was not comfortable with ostentatious displays of wealth, may have deliberately shown an interest in a less expensive engagement ring. It may have been a purely romantic as opposed to a prestigious choice for her.
The value of the ring, which was found on a wardrobe shelf in Dodi’s apartment after the crash, has been estimated to be between $20,000 and $250,000 as Repossi has always refused to be drawn into revealing how much Dodi paid for it. The sum, which enjoyed a 25 percent discount, was in truth paid for not by Dodi himself but by his father as was the usual practice.
Dodi was also shown Repossi’s sketches for a bracelet, a watch, and earrings which he proposed to create if Diana approved of them.
DIANA AND DODI GUSH OVER IMMINENT NUPTIALS
At about 7 pm, Dodi and Diana left the Ritz and headed for Dodi’s apartment at a place known as the Arc de Trompe. They went there to properly tog themselves out for the scheduled evening dinner. They spent two hours at the luxurious apartment. As usual, the ubiquitous paparazzi were patiently waiting for them there.
As they lingered in the apartment, Dodi beckoned over to his butler Rene Delorm and showed him the engagement ring. “Dodi came into my kitchen,” Delorm relates. “He looked into the hallway to check that Diana couldn’t hear and reached into his pocket and pulled out the box … He said, ‘Rene, I’m going to propose to the princess tonight. Make sure that we have champagne on ice when we come back from dinner’.” Rene described the ring as “a spectacular diamond encrusted ring, a massive emerald surrounded by a cluster of diamonds, set on a yellow and white gold band sitting in a small light-grey velvet box”.
Just before 9 pm, Dodi called the brother of his step-father, Hassan Yassen, who also was staying at the Ritz that night, and told him that he hoped to get married to Diana by the end of the year.
Later that same evening, both Dodi and Diana would talk to Mohamed Al Fayed, Dodi’s dad, and make known to him their pre-nuptial intentions. “They called me and said we’re coming back (to London) on Sunday (August 31) and on Monday (September 1) they are
Columns
RAMADAN – The Blessed Month of Fasting
Ramadan is the fasting month for Muslims, where over one billion Muslims throughout the world fast from dawn to sunset, and pray additional prayers at night. It is a time for inner reflection, devotion to Allah, and self-control. It is the ninth month in the Islamic calendar. As you read this Muslims the world over have already begun fasting as the month of Ramadan has commenced (depending on the sighting of the new moon).
‘The month of Ramadan is that in which the Qur’an was revealed as guidance for people, in it are clear signs of guidance and Criterion, therefore whoever of you who witnesses this month, it is obligatory on him to fast it. But whoever is ill or traveling let him fast the same number of other days, God desires ease for you and not hardship, and He desires that you complete the ordained period and glorify God for His guidance to you, that you may be grateful”. Holy Qur’an (2 : 185)
Fasting during Ramadan is one of the five pillars upon which the structure of Islam is built. The other four are: the declaration of one’s belief in Allah’s oneness and in the message of Muhammad (PBUH); regular attendance to prayer; payment of zakaat (obligatory charity); and the pilgrimage to Mecca.
As explained in an earlier article, fasting includes total abstinence from eating, drinking, smoking, refraining from obscenity, avoiding getting into arguments and including abstaining from marital relations, from sunrise to sunset. While fasting may appear to some as difficult Muslims see it as an opportunity to get closer to their Lord, a chance to develop spiritually and at the same time the act of fasting builds character, discipline and self-restraint.
Just as our cars require servicing at regular intervals, so do Muslims consider Ramadan as a month in which the body and spirit undergoes as it were a ‘full service’. This ‘service’ includes heightened spiritual awareness both the mental and physical aspects and also the body undergoing a process of detoxification and some of the organs get to ‘rest’ through fasting.
Because of the intensive devotional activity fasting, Ramadan has a particularly high importance, derived from its very personal nature as an act of worship but there is nothing to stop anyone from privately violating Allah’s commandment of fasting if one chooses to do so by claiming to be fasting yet eating on the sly. This means that although fasting is obligatory, its observance is purely voluntary. If a person claims to be a Muslim, he is expected to fast in Ramadan.
The reward Allah gives for proper fasting is very generous. Prophet Muhammad (PBUH) quotes Allah as saying: “All actions done by a human being are his own except fasting, which belongs to Me and I will reward it accordingly.” We are also told by the Prophet Muhammad (PBUH) that the reward for proper fasting is admittance into heaven.
Fasting earns great reward when it is done in a ‘proper’ manner. This is because every Muslim is required to make his worship perfect. For example perfection of fasting can be achieved through restraint of one’s feelings and emotions. Prophet Muhammad (PBUH) said that when fasting, a person should not allow himself to be drawn into a quarrel or a slanging match. He teaches us: “On a day of fasting, let no one of you indulge in any obscenity, or enter into a slanging match. Should someone abuse or fight him, let him respond by saying: ‘I am fasting!’”
This high standard of self-restraint fits in well with fasting, which is considered as an act of self-discipline. Islam requires us to couple patience with voluntary abstention from indulgence in our physical desires. The purpose of fasting helps man to attain a high degree of sublimity, discipline and self-restraint. In other words, this standard CAN BE achieved by every Muslim who knows the purpose of fasting and strives to fulfill it.
Fasting has another special aspect. It makes all people share in the feelings of hunger and thirst. In normal circumstances, people with decent income may go from one year’s end to another without experiencing the pangs of hunger which a poor person may feel every day of his life. Such an experience helps to draw the rich one’s conscience nearer to needs of the poor. A Muslim is encouraged to be more charitable and learns to give generously for a good cause.
Fasting also has a universal or communal aspect to it. As Muslims throughout the world share in this blessed act of worship, their sense of unity is enhanced by the fact that every Muslim individual joins willingly in the fulfillment of this divine commandment. This is a unity of action and purpose, since they all fast in order to be better human beings. As a person restrains himself from the things he desires most, in the hope that he will earn Allah’s pleasure, self-discipline and sacrifice become part of his nature.
The month of Ramadan can aptly be described as a “season of worship.” Fasting is the main aspect of worship in this month, because people are more attentive to their prayers, read the Qur’an more frequently and also strive to improve on their inner and outer character. Thus, their devotion is more complete and they feel much happier in Ramadan because they feel themselves to be closer to their Creator.