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Is a six months State of Public Emergency necessary to fight Covid-19?

On 31st March 2020, His Excellency the President, Dr. Mokgweetsi Masisi, in terms of section 17 of the Constitution of Botswana (the Constitution), declared a State of Public Emergency (SoPE) to deal with the Corona virus pandemic (Covid-19).

It is this SoPE that the President seeks to be approved by Parliament for a period of six months. It is apposite that we reproduce section 17 of the Constitution considering its centrality to the subject matter.

Section 17(1) provides that “The President may at any time, by Proclamation published in the Gazette, declare that a state of public emergency exists.” It is this section that the President relied upon when he declared the SoPE.

Section 17 (2)(a) provides that “A declaration under subsection (1) of this section, if not sooner revoked, shall cease to have effect in the case of a declaration made when Parliament is sitting or has been summoned to meet within seven days, at the expiration of a period of seven days beginning with the date of publication of the declaration.”

Section 17 (2)(b) provides that “A declaration under subsection (1) of this section, if not sooner revoked, shall cease to have effect in any other case, at the expiration of a period of 21 days beginning with the date of publication of the declaration, unless before the expiration of that period, it is approved by a resolution passed by the National Assembly, supported by the votes of a majority of all the voting members of the Assembly.”

It is because of sections 17(2) (a) and (b) that the President summoned Parliament to sit on 8th April 2020 to consider his motion to approve the SoPE.

Section 17(3) provides that “Subject to the provisions of subsection (4) of this section, a declaration approved by a resolution of the National Assembly under subsection (2) of this section shall continue in force until the expiration of a period of six months beginning with the date of its being so approved or until such earlier date as may be specified in the resolution:  Provided that the National Assembly may, by resolution, supported by the votes of a majority of all the voting members of the Assembly, extend its approval of the declaration for periods of not more than six months at a time.”

It is in terms of 17(3) that the President has asked Parliament to endorse his proposal for the SoPE to last for a period of six months. Section 17(4) provides that “The National Assembly may by resolution at any time revoke a declaration approved by the Assembly under this section.”

It is because of section 17(4) that the President has informed Parliament that should the Covid-19 situation abate he shall lift the SoPE immediately. Of course, the correct position of the law is that, in terms of section 17(4), once Parliament approves the SoPE, it will be for it to revoke the SoPE, not the President.

It is common course that, initially, the President had indicated that since he is only empowered to declare a SoPE that lasts 21 days, he will be seeking Parliament’s endorsement for an additional 7 days to make the SoPE  run for 28 days.

However, the President later mentioned that following expert advice he will be asking Parliament to endorse the SoPE for a period of six months. Indeed, when Parliament resumed on 8th April 2020, the government tabled the motion for a six months SoPE.

The Umbrella for Democratic Change (UDC) opposed it fiercely and the Leader of the Opposition, Honourable Dumelang Saleshando, moved an amendment for the SoPE to run for 28 days but the motion was defeated.

Given the ruling Botswana Democratic Party (BDP)’s majority in Parliament, the approval of the six months SoPE has always been a formality. The question, however, is: Is a six months SoPE necessary to fight Covid-19?

In this article, we attempt to answer this question. In her debate in support of the six months SoPE, Honourable Dr. Unity Dow did so through a framework which I found very useful. I use her framework in this article.

The first concern that she implored us to consider is whether there are no other laws other than section 17 of the Constitution that can be used to fight Covid-19. The UDC has argued that there are. The question is: are there such laws? Before we answer this question, it is apposite that we remind ourselves of some of the things that the President said he wants to achieve through the six months SoPE.

According to him, he needs the SoPE because the Public Health Act is limited in relation to such aspects as expeditious procurement of essential supplies; enhancing the capacity of the health sector; protecting government from lawsuits; deployment of the armed forces, etc.

Let us start with procurement of essential supplies. As you are aware, the law that regulates public procurement and asset disposal is the Public Procurement and Asset Disposal (PPAD) Act, Cap.42:08 (PPAD Act).

Section 6 of the PPAD Act provides that “A derogation from the application of the relevant provisions of this Act in respect of sections 4 and 5 may be applied for to the Board, on the prescribed form, by the competent agency responsible for the procurement or disposal in question, with supporting documentation.”

I wish to submit that, in terms of section 6 supra, if, owing to the special circumstances presented by Covid-19, there is a need to depart from the PPAD Act, such a departure is already provided for and may be applied for to the Board.

Section 44 (1) of the PPAD Act provides that “Subject to subsection (2), there shall be no retroactive approval by the Board, or its Committees of any bid issued or invitation to tender by a procuring or disposing entity.”

Section 44 (2) of the PPAD Act provides that “The Board may resolve to issue a retroactive approval of any bid issued or invitation to tender where it is satisfied that a procuring or disposing entity was required to proceed with the bid or invitation due to an urgent requirement or emergency arising from special circumstances.”

I wish to submit that, in terms of section 44(2) supra, if, owing to the special circumstances presented by Covid-19, there is a need to make procurements without prior approval by the Board in terms of the PPAD Act, such procurement can be lawfully done with approval to be made later, retroactively.

The above sections of the PPAD Act can, therefore, allow essential supplies as required during Covid-19 to be procured expeditiously. There is, therefore, no need to rely on the SoPE for such a purpose.

We now deal with the deployment of armed forces. Section 48 (1) of the Constitution provides that “The supreme command of the armed forces of the Republic shall vest in the President and he or she shall hold the office of Commander in Chief.”

Section 48 (2) (a) of the Constitution provides that “The powers conferred on the President by subsection (1) of this section shall include the power to determine the operational use of the armed forces.”

It is submitted that the President’s power to determine the operational use of the armed forces can be used to deploy the armed forces for operations related to the fight against Covid-19. There is, therefore, no need to rely on the SoPE for such a purpose.

We now deal with the protection of government from lawsuits, for instance, lawsuits by entities seeking damages against government for its failure to perform its contractual obligations.

Ordinarily, in the law of contract, government would be protected by vis majure clauses. A vis majure clause avails a defence to a party to a contract in the event of such an overwhelming, unanticipated, and unpreventable event as Covid-19. In that case, a party may be exempted from performing its obligations under a contract.

But it goes without saying that some of the contracts government has with other parties have no vis majure clause.   Also, the Public Health Act does not avail a defence of vis majure to government. Therefore, government stands the risk of facing lawsuits, e.g. by companies that incur loss of business as a result of the Covid-19 lockdown.

Through a SoPE, however, government can achieve immunity against such lawsuits. There is, therefore, need to rely on the SoPE for such a purpose. It has been argued that the Public Health Act, Cap.63:01(Cap.63:01) is enough instrument to fight Covid-19. Section 23 (1) of Cap.63:01 provides that “The Director may, by Order published in the Gazette, declare that a public health emergency exists if- (a) the Director is satisfied that the situation so dictates it; and (b) it is not practicable for a declaration of a state of emergency or disaster to be made under the Emergency Powers Act (Cap. 22:04).”

In terms of this section, the Director can only declare that a public health emergency exists not only if he is satisfied that it exists but also if it is not practicable for the declaration to be made by the President. Therefore, the power is not truly of the Director, it is of the President.

Section 23 (2) of Cap.63:01 provides that “A public health emergency declaration made under subsection (1) shall specify- (a) the nature of the public health emergency; (b) the area to which the declaration relates; and (c) the period, not exceeding seven days, during which the declaration shall be in force.”

Section 24 (1) of Cap.63:01 provides that “A public health emergency declaration shall come into force on the date on which it is made and shall continue for the period specified in the declaration.”

Section 24 (2) of Cap.63:01 provides that “The Director may, by Order published in the Gazette, extend the period of a public health emergency declaration as may be necessary.”

In terms of sections 23(2); 24(1) and 24(2) supra, a public health emergency declaration made by the Director is far limited in duration than that made by the President subject to Parliament’s approval. Section 26 (1) of Cap.63:01 provides that “The Director may, in writing, authorize persons or a class of persons to assist him or her in carrying out any direction under this Act.”

Section 26 (2) of Cap.63:01 provides that “A person authorized under subsection (1), or a police officer, in assisting the Director to carry out any direction under this Act, may….”

As stated earlier, the power to deploy the armed forces is a preserve of the President as Commander in Chief in terms of section 48 of the Constitution. This power far outweighs the Director’s power in terms of section 26(2) above.

Therefore, though Cap.63:01 provides powers relating to compensation; public health enquiries; investigation and entry, inspection and seizure in terms of sections 27; 29; 30 and 31 respectively, its powers are far less than those a President has under a SoPE.

Going back to Honourable Dr. Dow’s framework, the next concern should be whether the SoPE seeks to suspend the Constitution?

If it does, it would be problematic in that the President would be able to trample on people’s rights and freedoms. Not only that. The Legislature and the Judiciary, which serve as checks and balances in relation to the Executive, would be suspended.

Nobody has suggested that this SoPE seeks to suspend the Constitution. All it will do, as do all States of Public Emergency, will be to limit people’s rights. It is submitted that if such limitation is reasonable and justifiable and is rationally connected to the purpose it seeks to achieve, then it would be constitutionally permissible.

After all, the Constitution itself permits limitation of human rights and freedoms. Section 16(1) provides that “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5 or 15 of this Constitution to the extent that the law authorizes the taking during any period when Botswana is at war or any period when a declaration under section 17 of this Constitution is in force, of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period.”

Should there be any measures taken by the President that are not reasonably justifiable for the purpose of dealing with Covid-19, the courts, which stand guard over our Constitution, will be available for aggrieved parties.

The mandate of the courts is, however, limited by section 3(2) (g) of the Emergency Powers Act, Cap.22:04 (Cap.22:04) which provides that the regulations which the President is empowered to make during a SoPE may provide for the “apprehension, trial and punishment to persons offending against the regulations.”

Solace is, however, found in the proviso to section 3(2) (g) of Cap.22:04 which provides that nothing in this paragraph shall authorize the making of provision for the trial of persons by military courts.

Should there be any measures taken by the President that are not reasonably justifiable for the purpose of dealing with Covid-19, Parliament can revoke the SoPE in terms of Section 17(4) of the Constitution.

Concern has been raised, however, that during the SoPE Parliament may be unable to meet for such a purpose. I am unaware of any law which proscribes Parliament from meeting during a SoPE.

However, because our Parliament is not institutionally independent from the Office of the President (OP), OP may frustrate Parliament’s efforts to meet if the President does not want it to. But because the courts will be operational during the SoPE, it is submitted that Parliament can approach the courts for recourse.

Some have argued that Parliament cannot act in any manner, including approaching the courts, or telling the President anything before the SoPE lapses because it dies the moment it endorses the SoPE. This cannot be correct. Read literally, section 17(4) of the Constitution supra clearly shows that Parliament does not die during the SoPE for if it were so, it would not have the power to revoke the SoPE.

Honourable Dr. Dow has suggested that during the SoPE the President is enjoined to convene Parliament to approve the regulations he may make. This is not correct. In terms of section 3(1) of Cap.22:04, the President does not need Parliament’s approval to make regulations during the SoPE. He makes the regulations acting alone.

It ought to be stated that such regulations may have far reaching implications since, in terms of 3(1) of Cap.22:04, they may provide for the detention and restriction of movement; authorize the taking of possession or control of property or undertaking; and the entering and search of any premises.

Thankfully, the President does not have the power to amend the Constitution during a SoPE. He can, therefore, not amend the Constitution to abolish Parliament and the courts, for instance.

It is, however, disconcerting that the President can, in terms of section 3(2) (d) of Cap.22:04, “make regulations that provide for amending any enactment, for suspending the operation of any enactment and for applying any enactment with or without modification.”

Going back to Honourable Dr. Dow’s framework, the last concern should be whether the period for the SoPE is reasonable and motivated by proper motive?

With respect to this, I shall be very brief for this is dependent on scientific evidence available to government to which I am not privy. The difficulty with this is that the most sacred of human rights, i.e. the right to life, is at stake as a result of Covid-19. No other right takes precedence over this right. In fact, no right can be without the right to life.

However, whatever scientific evidence there is should be balanced with the effect that the SoPE will have on the socio-economic wellbeing of the people. It is needless to say that the SoPE will result in closure of companies, loss of jobs and loss of means of production and sustenance, resulting in unbearable suffering for our people. This, the President should consider judiciously.

Some BDP Members of Parliament (MPs) have suggested that the six-month SoPE does not necessarily translate to a six-month lockdown. For what it is worth, I discuss this matter in the next article.

*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys. He can be contacted at 71410352 or anmorima@gmail.com

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Internet Connectivity in Botswana: Time to Narrow Digital Divide

19th October 2020
Elon Musk

On Friday October 9, 2020, President Masisi officiated at a function that most appositely spoke to his passion and desire to kick-start the crystallisation of the Fourth Industrial Revolution, or 4IR in short, in Botswana. In his keynote speech, the President hailed the partnership between Gaborone City Council and BoFiNet to launch free Internet access of one-hour duration daily in selected “Wi-Fi Hotspots” across the city for all and sundry.

The pilot project has actually been years in the making, having been initiated in April 2014, when the BOCRA-supported Universal Access and Service Fund (UASF) was established. UASF levies 1 percent on the gross annual turnover of flourishing ICT outfits and is now using this to subsidise the Internet access price in the Hotspots of Gaborone, which are to be found at shopping malls, bus stations, hospitals, and airports in the main. The facility, which is provided courtesy of the BoFiNet Wi-Fi infrastructure, will in the fullness of time be rolled out in Kasane, Maun, Francistown, Palapye, Serowe, and Mahalapye too. As of the end of 2019, UASF collections totalled P43.2 million according to BOCRA’s latest Annual Report.

A point President Masisi underscored at the launch was the imperative that “all citizens have access to the Internet so that the ideal of leaving no one behind as envisioned by the sustainable development goals is realised”. It also exhilarated me that the President underlined that “innovation and creativity will be the bedrock of economic diversification in our country”, a priority I besought government to pursue with impassioned as opposed to rhetorical resolve in one of my earlier articles under this very column.

Certainly, Pillars 1 and 2 of the only minimally accomplished Vision 2016 goals envisaged, amongst other things, an informed and innovative Botswana. With the Wi-Fi Hotspot dispensation now upon us, are we on course to deliver on this sooner rather than later?

FREE INTERNET COULD FULFIL MEGA DREAMS FOR THE CITIZENRY

Granted, one hour of free Internet per day is not that bad as a starting point, but it is a drop in the ocean when juxtaposed with the larger global picture, whereby some countries, which include the industrialised West, the Scandinavian countries, and the Baltic states of Lithuania and Estonia, offer qualitative public Internet service free of charge all-day long. In Finland for one, broadband (high-speed Internet access) has been a legal right since 2010. In other words, if a citizen for one reason or the other does not have the opportunity to surf the web, he or she can sue the state for redress.

For the impecunious individual who wishes to do meaningful and comprehensive research, however, one hour can be very limiting. To just give one example, it takes me up to two full days to gather material for a single one instalment of the contents of this column, of which Internet-sourced data is key. This is because not every bit of worthwhile information is available at just one click of the mouse. In some cases, the requisite information is simply not available at all and by the time that dawns on you, a full day will have gone by.

There is also the question of whether the Hotspots are amply equipped with desktops, let along being sizeable enough, to cater to the stampede of the city residents who will want to be one of the earliest birds to catch the worm given that access is certain to be on a first-come-first-served basis. An Internet Hall under the auspices of government would serve the purpose best, with the unused Orapa House as a possible venue proposition.

As for nationwide and limitless free Internet access, we still have a long way to go being a Third World country but the earlier we get there, the greater the rewards we reap in the long-term. Google, Facebook, Twitter, to mention only a few, are today multi-billion operations thanks to the added benediction of the Internet epoch. Years back, Elon Musk and five others started PayPal – a means of sending money, making an online payment, and receiving money – using the Internet medium. In 2002, E-Bay acquired PayPal for an eye-popping $1.5 billon, with Musk personally garnering $165 million. As I write, Musk is the 6th richest person on Earth, with a net worth of $82.3 billion.

It is the ready platform of the Internet that helped catapult him to the dizzying pecuniary heights he has since scaled.  We will probably never be able to mint a dot.com-facilitated dollar billionaire in Botswana, but even mere Pula millionaires or part-millionaires can do as half a loaf is better than nothing. If Internet was freely available to every citizen, such chances would be greatly enhanced.

WE LIVE OUR LIVES ONLINE

In the past, Internet connectivity may have been a luxury but the advent of COVID-19 has made it an essential component of the new normal – a lifeline. Students have had to receive lessons online amid stop-go lockdowns of huge swathes of a country. Executives have had no option but to network or collectively liaise using teleconferencing or by way of Skype. Telemedicine, or caring for and consulting with patients remotely, has become the order of the day, especially in the developed world. We have seen live-streamed religious services and of course some people have been working from home.

Even before COVID-19 struck, we were routinely conversationally engaging with family and friends on social media platforms such as Facebook and Whatsapp. Some of our monthly transactions, like telephone bill settlements and DStv subscriptions, were effected online. Needless to say, we have literally been living our lives online. Electronic transacting in any case, whether by mobile phones or via the web, substantially curtail queuing time at banks and precious other pay points anywhere, gets people to spend more time in the workplace than out of it, and therefore boosts productivity as personal errands to do a thing or two are notorious for eating into invaluable man-hours.

There’s also government’s espoused vision of having Botswana transformed into a knowledge-based economy. Without universal access to the Internet, this aspiration will remain a pipe-dream. Knowledge certainly is power, whether this be political, economic, or scientific. Botswana will never come to be anywhere near the economic might of Singapore or the technological feats of South Korea if it relegates knowledge attainment to the back burner of its core aspirations. An Old Testament prophet was spot-on when speaking on behalf of his god Yahweh lamented that “my children perish for lack of knowledge”, HOSEA 4:6.

The paradox is that the digital divide both on the continent of Africa and in Botswana is as glaring as ever. Only four out of ten people in Africa have Internet access and according to the global business data platform Statista, which has insights and facts about 170 industries and more than 150 countries, Botswana has an Internet penetration of only 47.5 percent. It lags 20 other countries on the continent, who include Kenya (the continental leader at 87.5 percent); Mauritius (67 percent); Nigeria (61.2 percent); Swaziland (57.3 percent); Zimbabwe (56.5 percent); South Africa (55 percent); and Zambia (53.7 percent).

A study by the Mc Kinsey Global Institute postulates that if Internet use proliferates in Africa at the rate mobile phones did in the early 2000s, the continent stands to add as much as $300 billion to its economic growth by 2025. The World Bank also says achieving universal, affordable, and good quality Internet access in Africa by 2030 will require an investment of $100 billion. In Botswana, the National Broadband Strategy (NBS) aims to achieve universal broadband by 2023. It is aligned to BOCRA’s 2019-2024 Strategic Plan, whose main goal is to deliver the NBS aims at an affordable price tab. Is the time frame realistic?

THE PRICE OF AN ARM AND A LEG!

For universal Internet access to be tenable, first both the access and the medium of access have to be affordable to every literate person out there. Sadly in Botswana, smart phones, which allow for Internet access anywhere where there is a cellular network, do not come cheap. The asking price at the very least is upwards of a thousand Pula. That is a prohibitive price for the greater majority of our population who struggle to eke out a living just to keep body and soul together. The likes of BOCRA and BoFiNet should help out here by subsidising the price of these devices, at least for a period of time till economies of scale result in a natural reduction of the price.

As for the going price of Internet access in Botswana presently, a study of 228 countries earlier this year by cable.co.uk found that Botswana was among the 14 most expensive countries in this regard. I can attest to this myself as I have to fork out a minimum of about P400 a month to enable me the use of the Internet without any hiccup save for the sporadic network downage or the now endemic power outages. To many a people, P400 a month amounts to the proverbial cost of an arm and a leg as it constitutes a substantial proportion of average monthly income. In countries such as Egypt and Mauritius, one can have Internet use every day of the week at any time of the day for only 0.5 percent and 0.59 percent of average monthly income.

In a bid to ameliorate the prohibitive Internet access price in our country, the University of Botswana was forced to shell out a whopping P7.8 million to provide the student populace with free SIM cards to enable them download teaching material under the restrictive COVID-19 climate. Botho University also entered into an arrangement with Orange whereby their students could have online access to learning materials and teaching instruction at only P2 a day, P10 a week, or P30 a month, though data was capped at 200 megabytes a day. Both these initiatives by two of the country’s premier institutions of higher education must be lauded.

If the cost of mobile broadband data has to organically come down drastically, it is essential that we move from a consolidated market – the triopoly of Mascom (with 51 percent market dominance), Orange (34 percent), and Be-Mobile (15 percent) we have in Botswana – to a multi-operator market. In its latest annual report, BOCRA reports that in 2018, the three operators had combined revenues of P4.4 billion and combined profits of P826 million. One wonders why this rather brisk bottom line does not translate to a proportionate paring down of the consumer price or does it have to do with the fact that the operators’ greed knows no bounds?

BOTSWANA NEAR TAIL-END OF GLOBAL BROADBAND SPEED LEAGUE

If the truth may be told, Internet speed in Botswana is no longer as glacially slow as it was a year or two back. That does not mean it is lightning swift. In fact, it is among the slowest both on the globe and on the African continent.  At the download average of 1.92 megabytes per second (mbps), Botswana ranks 165th in the world and is 22nd in Africa according to statistics furnished by cable.co.uk. Our case is all the more stigmatic as we trail even comparatively poorer countries such as Zambia, Zimbabwe, Mozambique, and Sudan.

Taiwan has the fastest Internet in the world at 85.02 mbps, followed by Singapore at 70.86 mbps. Whereas it would take 22 hours for one to download a 5 gigabyte movie in oil-rich Equatorial Guinea, the worst-ranked African country, and 6 hours for Botswana, it would take only 8 minutes in Taiwan.  In Africa, it is not South Africa (8.4 mbps, 75th in the world), the wealthiest country, which leads the pack. It is Madagascar at 22.57 mbps (33rd globally). This is one of the poorest countries on Earth, with four out of every four citizens living on less than $2 a day.

Botswana in fact is way below the minimum speed of 10 mbps required for consumers to fully participate in a digital society according to tech experts. I need not emphasise that time is money. It is time BOCRA and BoFiNet saw to it that we pulled up our socks in broadband speed to serve on trawling time. Regrettably, in Botswana things move very slowly and it will probably be another ten years or so before we come to stand shoulder-to-shoulder with Madagascar. As for ever catching up with Taiwan, well, the less said the better.

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The Babylonian Captivity Ploy

19th October 2020

Nebuchadnezzar has the Jews exiled to his own domain to sabotage Jerusalem’s prospects of hosting King Anu, “Our Heavenly Father”

In 590 BC, General Atiku, King Zedekiah decided he would no longer be the puppet of Babylon. Just like Nebuchadnezzar, he wanted to be in full and unmitigated control of the Holy City in the event King Anu pitched. But he was under no illusion he could throw off the yoke of Babylon singlehandedly. So in the fourth year of his reign he – once again against the advice of the far-sighted prophet Jeremiah – joined a coalition that was being formed by Edom, Moab, Ammon, Tyre, and Sidon resist Nebuchadnezzar.

Upon getting wind of the rumours of this scheme, Nebuchadnezzar summoned Zedekiah to Babylon to administer to him a warn and caution statement but it seemed he took no heed. The following year, Nebuchadnezzar decided to pounce: he captured all the cities of Judah except three, one of which was Jerusalem and which he proceeded to besiege for the third time.

Finding himself in dire straits, General, Zedekiah made an alliance with Pharaoh Apries of Egypt and indeed the latter rushed to reinforce him. In the ensuing lull in hostilities, Nebuchadnezzar pulled a stunt by lifting the siege and Apries withdrew. No sooner had Apries done so than Nebuchadnezzar hemmed in on Jerusalem once again: Zedekiah was on his own. Jerusalem was under siege from January 587 to July 586 BC. The following, General, are the circumstances and aftermath of the siege according to one chronicler:

“Conditions in the city became increasingly desperate. Although the people had had time to prepare, their food supplies eventually began to run out. Cannibalism became a grim reality. Despite Jeremiah’s counsel to surrender, the King refused to do so and just as the last of the food in the city was exhausted the Babylonians broke through the wall.

“Zedekiah fled with remains of his army, but was overtaken and captured near Jericho. From there, he was brought before Nebuchadnezzar at his field headquarters at Riblah, his sons were executed in front of him, and he was blinded. From there, he was taken in chains to Babylon. The key members of his cabinet were executed before Nebuchadnezzar at Riblah shortly afterwards.

“A large part of the population of Jerusalem was put to the sword and everything of value plundered. The bronze articles from the Temple were cut up and removed and the building together with the palace and the important houses were set on fire.  “In order to ensure that the city would never rebel against him again, Nebuzaradan, the commander of the Imperial Guard, ordered that the walls be demolished. All who survived in the city were carried off into exile in Babylon, with the exception of the very poor of the land.

The starving population exchanged whatever riches they had left for food, its leadership and priesthood were gone and the Temple burnt. The Babylonians soldiers oppressed the survivors and forced them to work for their food.” The remnant of poor people that were spared, General, were meant to serve as farmers and wine dressers. These people had previously been landless peasants and presented the least risk to the Babylonians, but were required to work the land to prevent the fields falling into disuse.

WOULD KING ANU CONDONE NEBUCHADNEZZAR’S ACT?

Nebuchadnezzar was not the first King to deport a people from their own country, General. The pace was actually set by the Assyrian King Adad Nirari I (c. 1307-1275 BC), who thought the best way to prevent any future uprising was to remove the occupants of the land and replace them with Assyrians. But Nebuchadnezzar, General, had an ulterior motive for the deportations, which only the “Illuminati” of the day were privy to. He wanted to make Jerusalem desolate and decrepit so that when King Anu arrived, he would avoid it like the plague and instead focus on the glittering Babylon.

His aim was to kill off entirely the competition posed by Jerusalem. Says Zechariah Sitchin: “The expectation, it seems, was that the arriving god (Anu) of the Winged Disk (symbol for planet Nibiru) would come down at the Landing Place (Baalbek) in Lebanon, then consummate the Return by entering Babylon through the new marvelous Processional Way and imposing Ishtar Gate.”  But in the event that he indeed pitched, would the pro-Enlilite Anu take kindly to being deflected to a city (Babylon) other than Jerusalem when it had been specifically designated for his ultimate hosting on the planet by virtue of its geometrical centrality?

Having taken over Nippur’s prediluvial role to serve as Mission Control Center after the Deluge, Jerusalem was located at the center of concentric distances to the other space-related sites. Aptly calling it the “Navel of the Earth” (EZEKIEL 38:12), the prophet Ezekiel had announced that Jerusalem had been chosen for this role by God himself. “Thus has said the Lord Yahweh: ‘This is Jerusalem; in the midst of the nations I placed her, and all the lands are in a circle round about her,” EZEKIEL 5:5. “Determined to usurp that role for Babylon,” Sitchin further notes, “Nebuchadnezzar led his troops to the elusive prize and in 598 BC captured Jerusalem.”

CIRCUMSTANCES OF THE EXILE SITUATION

Altogether, General, the Babylonian captivity – the deportation of the Nation of Israel to Babylon – spanned 70 years counting from the first deportation of 598/597 BC.  Meanwhile, Judah was renamed Yehud Province by the Babylonians and a puppet Jewish governor was appointed to administer it. (The post of King was abolished, making Zedekiah [reign: 597-586 BC] the last substantive linear King of the Jews.) His name was Gedalia, whose father had been an advisor to King Josiah (reign: 640-609 BC).

Gedalia set up his capital not in Jerusalem but in Mizpah. That, plus the fact that he didn’t have a drop of Davidic blood in him, made him a marked man to Jewish nationalists and traditionalists from the word go. Not long after his appointment, Gedalia was assassinated by a family member of the deposed king Zedekiah. From that point on, General, no Jewish governor was installed until after the end of the Babylonian captivity.

Exactly what were the circumstances of the deportees, General? The image that immediately comes to mind is that of a concentration camp kind of setting reminiscent of the Jewish people’s fate at the hands of Nazi Germany. That, General, is a gross misconception. In Babylon, the Jews enjoyed every privilege, including citizenship if they so desired. They were not enslaved or in bondage of any kind. Their own individual abilities were even tapped into to help advance Babylon in one way or the other.

Reading PSALM 137:1–2, the surface impression one gets, General, is that the Jews in Babylon were beset by a most disagreeable set of circumstances. “By the rivers of Babylon, there we sat, sat and wept, as we thought of Zion (Jerusalem). There on the poplars we hung up our lyres.” Well, that was pure nostalgia, which is a natural impulse when a people have been displaced, General. A notable historian presents to us the more accurate picture in the following words:

“The deportees, their labour and their abilities, were extremely valuable to the Babylonian state, and their relocation was carefully planned and organised. We must not imagine treks of destitute fugitives who were easy prey for famine and disease: the deportees were meant to travel as comfortably and safely as possible in order to reach their destination in good physical shape.

Whenever deportations are depicted in Babylonian imperial art, men, women and children are shown travelling in groups, often riding on vehicles or animals and never in bonds … Deportees were carefully chosen for their abilities and sent to regions which could make the most of their talents. Not everyone in the conquered populace was chosen for deportation and families were never separated. Those segments of the population that had actively resisted the Babylonians were killed or sold into slavery, but the general populaces became absorbed into the growing empire and were thought of as Babylonians.”

Another historian has this to say, General: “It is assumed that the Jews had to render labour to the Babylonians, but generally they enjoyed a great deal of freedom. Some of the exiles, like Daniel and his three friends, rose to positions of power within the Royal Court of Babylon and many others became wealthy. Later, during the Persian period Jews like Mordecai, Esther, and Nehemiah all found themselves in key positions in the government and were able to act on behalf of their people because they took Jeremiah’s advice.” Indeed, General, Nehemiah rose to become the cup-bearer of the King, that is, the King’s most trusted official.

The King-in-exile himself, Jeconiah, enjoyed particularly special privilleges both when he was in prison and after his release. Captive kings and high-ranking officials received monthly rations of grain and oil. Archaeological evidence recovered from the Royal palace in Babylon provides support for Jeconiah’s presence there and lists the daily rations set aside for him and the members of his family.

The Bible itself, General, does not shy away from underscoring Jeconiah’s privileged status in Babylon as highlighted in JEREMIAH 52:31-34 thus: “In the thirty-seventh year of the exile of Jeconiah King of Judah, in the year Awel-Marduk became King of Babylon, on the twenty-fifth day of the twelfth month, he released Jeconiah King of Judah and freed him from prison. He spoke kindly to him and gave him a seat of honour higher than those of the other kings who were with him in Babylon. So Jeconiah put aside his prison clothes and for the rest of his life ate regularly at the King’s table. Day by day the King of Babylon gave Jeconiah a regular allowance as long as he lived, till the day of his death.”

 

JEREMIAH PAINTS SORRY PICTURE OF MARDUK’S FATE

The destruction of Solomon’s Temple by King Nebuchadnezzar, General, was according to the Bible the ultimate blasphemy. Ishkur-Adad, the Jehovah under whose auspices the Temple was built, was not in the least bit amused. He straightaway had the prophet Jeremiah step forward and pronounce the comeuppance both on the King and his colossal empire.

Now, biblical prophecies, General, should not be taken at face value. Their fulfillment were documented after the events they purported to foretell had already taken place, not before they happened. Much of the Old Testament corpus was compiled in the 6th century BC, during and after the Babylonian captivity (the Book of Malachi, the last prophet, was written circa 400 BC, and the Book of Daniel was compiled just after 164 BC). So we have to bear that in mind, General, when we read of fulfilled prophecies so that we decide whether to contemplate the story warily or give it the benefit of the doubt.

Jeremiah announced that the destruction of the Temple was going to be avenged by Yahweh (JEREMIAH 50:28). In addition, Adad instructed him to make the following proclamation: “Declare among the nations and proclaim, set up a banner and proclaim, do not conceal it, say: Babylon is taken; withered is Bel; confounded is Merodach … For out of the north a nation has come up against her; it shall make her land a desolation, and no one shall live in it; both human beings and animals shall flee away.” – JEREMIAH 50: 1-3.

Jeremiah, General, made this statement circa 561-60 BC. It can be easily dated because it was in this timespan that Merodach, Nebuchadnezzar’s successor, was on the throne. Jeremiah served notice to the world that Babylon was to be supplanted by a new power from the north, who turned out to be Persia. Jeremiah also spelt out the imminent fate of the Babylonian god Marduk, who was also known as Bel, meaning “The Lord”: he was to “wither”, or cease to be a factor in the affairs of mankind. In the case of Merodach, all Jeremiah said of him was that he was to be “confounded”, that is, so overwhelmed by problems as to lose a sense of focus. One wonders, General, why Jeremiah, if he was the great prophet he was touted to be, didn’t foresee the assassination of Merodach and directly allude to it in his prophecy.

The prophet Daniel says in his waning days, Nebuchadnezzar had his mind taken away and ate grass like an ox. This, General, is a fanciful story which is found only in the Bible and nowhere in the Babylonian annals. “There is no independent support for the tradition in Daniel of Nebuchadnezzar’s seven years’ madness, and the story probably arose from a fanciful later interpretation of texts concerned with events under Nabunaid, who showed apparent eccentricity in deserting Babylon for a decade to live in Arabia,” says Encyclopaedia Britannica.

Meanwhile, did Marduk indeed get to wither, General?

NEXT WEEK: FROM EXILE TO EXIT

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Understanding Botswana’s trade dispute resolution framework: Industrial Action

19th October 2020

In Botswana, the Trade Disputes Act, 2016 (“the Act”) provides the framework within which trade disputes are resolved. This framework hinges on four legs, namely mediation, arbitration, industrial action and litigation. In this four-part series, we discuss this framework.

In last week’s article, we discussed the second leg of Botswana’s trade dispute resolution framework-arbitration. In this article, we discuss the third leg, namely industrial action.

Industrial action is generally defined as a situation where the employer and employees use their bargaining power to exert pressure on the other to achieve a particular result. It entails such things as strikes and lockouts.  In terms of section 2(1) of the Act, Industrial action means “a strike, lockout or action short of a strike, in furtherance of a trade dispute”.

In terms of section 2(1) of the Act, “a strike means the cessation of work by a body of employees in any trade or industry acting in combination or under a common understanding or a concerted refusal or a refusal under a common understanding by such body of employees to continue work.”

A lock-out is the employees’ equivalent of a strike. In terms of section 2(1) of the Act, a lock-out is defined as “ the closing of a place of employment by an employer in any trade or industry or the suspension of work by such an employer or the refusal by such an employer to continue to employ any number of his or her employees in that trade or industry.”

While on a strike, employees use their numbers to inflict economic pain on the employer by withdrawing their labour, in a lock-out, the employer uses its power by not providing employees with work, thereby inflicting economic harm on them in terms of the ‘no-work, no pay’ principle.
In terms of section 2(1) of the Act, an action short of a strike means “any method of working (other than the method of working commonly known as working to rule) undertaken by a body of employees in any trade or industry acting in combination or under a common understanding, which method of working slows down normal production or the execution of the normal function under their contracts of employment, of the employees undertaking such method of working.”

In terms of section 42(1) (a) of the Act, it is obligatory to refer a dispute of interest for mediation before resorting to a strike or lockout. Also, in terms of section 42(1) (b) of the Act, a party must give the other party a 48-hour notice before the commencement of a strike or lockout. In terms of section 43(1) of the Act, before a strike or lockout commences, the parties have to agree on the rules regulating the action, failing which the mediator must determine the rules in accordance with any guidelines published in terms of section 53 of the Act.

These rules include those concerning the conduct of the strike or lockout and any conduct in contemplation or furtherance of the strike or lockout including picketing and the use of replacement labour. In terms of section 43(2) of the Act, the latter is, however, subject to the provisions of subsection (4) of the Act.

Employers are not allowed to engage replacement labour if the parties have concluded an agreement on the provision of a minimum service. In terms of section 43(3) of the Act, such prohibition also applies if no minimum service agreement is concluded within 14 days of the commencement of the strike or lockout.

In terms of section 43(4) of the Act, a trade union is allowed to picket outside the employer’s premises during a strike or lockout if the parties have concluded an agreement on the provision of a minimum service or if no such agreement is concluded within 14 days of the commencement of the strike or lockout.

The Act prohibits strikes and lockouts that do not comply with the aforesaid provisions or an agreed procedure. The prohibition also applies if the strike or lockout is in breach of a peace clause in a collective labour agreement.

In terms of section 45(1) of the Act, strikes or lockouts are also regarded as unprotected if the subject matter of the strike or lockout is not a trade dispute, is regulated by a collective labour agreement, is a matter that is required by the Act to be referred for arbitration or to the Industrial Court for adjudication, or is a matter that the parties to the dispute of interest have agreed to refer for arbitration.

In terms of section 47 of the Act, employees in essential services are not allowed to take part in a strike. Similarly, employers in essential services are not allowed to take part in a lockout. It is, however, worth noting that, although an essential service employee who engages in a strike commits an offence and is, in terms of section 48(1) of the Act, liable to a fine not exceeding P 2 000 or to imprisonment for a term not exceeding 12 months, or to both, there is no punishment for an essential service employer who locks out its employees.

In terms of section 48(2) of the Act, the punishment applicable to an essential service employee who engages in a strike, is also applicable for any person who causes, procures, counsels or influences any essential service employee to engage in a strike.

Where there is a trade dispute involving parties in an essential service, it should be reported to the Commissioner by an organisation acting on behalf of the employer, employers or employees. The provisions of section 6(3) apply in respect of a report of the trade dispute made in accordance with section 6 (1).

Where a trade dispute is reported in accordance with that section, it is deemed to have been reported to the Commissioner under section 6. Where there is failure to settle a trade dispute reported to the Commissioner in accordance with section 6 (2) within 30 days from the day on which the trade dispute was reported, the Commissioner may immediately refer the trade dispute to an arbitrator if the dispute is a dispute of interest, except in the case of a collective dispute of interest where the employees are represented by a trade union, or to the Industrial Court if the trade dispute is a dispute of right.

*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys. He can be contacted at 71410352 or HYPERLINK “mailto:anmorima@gmail.com” anmorima@gmail.com

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