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In its eagerness to whitewash a shameful past, Botswana’s officialdom never breathes a word about the racial character of the country’s bill of rights. The latter is a declaration of individual rights and freedoms issued by a national government. In Botswana’s constitution, these rights are enumerated in Chapter 2 under the heading of “Protection of Fundamental Rights and Freedoms of the Individual.” For purposes of what follows, clauses on “Protection from Deprivation of Property” and “Protection from discrimination on the grounds of race, etc” are of particular interest.
Courtesy of Dr. James Kirby, an Australian academic at La Trobe University, this shameful past has been laid bare in an award-winning academic paper titled “Conditional on a Bill of Rights”: Race and Human Rights in the Constitution of Botswana, 1960-66.” The first part of the title is actually a direct quote from the last colonial Resident Commissioner, Peter Fawcus, who declared that peaceful race relations in the future state of Botswana were “conditional on a Bill of Rights to safeguard human rights.” Whose rights? White people’s. At this time, there were only 4000 white colonial settlers in a population of 540 000.
In putting together this seminal work, Kirby (no relation to the Judge President of the Court of Appeal, Ian Kirby) had to travel halfway across the world to do research work, making an olbligatory stop in Gaborone where he dug up records at the Botswana National Archives and Records. The end result was an assemblage of historical facts about a pre-independence Botswana that featured two homegrown political pugilists against each other and how their epic fight ended.
Singing the blues in the blue corner was the Bechuanaland People’s Party (BPP) which was making white colonial settlers (farmers, traders and civil servants) very nervous. Collectively, the latter “owned roughly six per cent of the land, principally located in the most fertile regions along the south-eastern and eastern border.” BPP, which was led by former anti-apartheid activists exiled from South Africa, agitated for the return of white-owned land to the indigenous population and on occasion would protest the anti-black racism by whites. Its leaders publicly used anti-European rhetoric and at one meeting, Phillip Matante openly asserted that “the People's Party hate the Europeans and we shall hate them forever.” Another party leader would later vow that the party “will chase Europeans out” upon entering government.
Kirby writes of the BPP of this era: “The party defined its mission as one dedicated to restoring the land to the African population as their rightful inheritance. From the viewpoint of the party leadership, white inhabitants adhered to a foreign concept of ownership and had an illegitimate claim to property within the protectorate.” The party had internal cohesion problems and by December 1962, Phillip Matante's faction agitated for the return of all crown land to indigenous people as well as the elimination of “all artificial barriers and boundaries.” Likewise, Motsamai Mpho’s faction sent a set of proposals to the British Prime Minister, Harold Wilson, in November 1964. This faction wanted every piece of land sold by the colonial authority restored to indigenous people without compensation, all foreign title deeds or ownership placed under government control in conformity with the principles of African land ownership and abandonment of the notion of individual property rights for that of communalism.
“More socialist than traditionalist, private land would be brought under state ownership, rather than the authority of the kgosi (chief). To the detriment of the prospects of the Europeans' position and security within the protectorate, the People's Party offered a set of group rights for Africans as the basis for reformulating race relations after independence,” Kirby writes of Mpho’s demands.
In the red corner was the BDP whose “leadership consisted of an African elite class that was represented in the Legislative Council and prepared to cooperate with the British.” The BDP was led by Seretse Khama, a Bangwato traditional leader who was married to a white woman and had white members like Benjamin Steinberg. The latter was BDP’s first treasurer and would become the first Boteti MP upon independence. Fearful of the BPP’s proposals and anxious to ensure that white colonial settlers lived in peace and security in a future independent state, the colonial authority formed an unofficial alliance with the BDP. As Kirby shows, there were practical considerations: “the colonial authority relied heavily on the revenues of European ranchers and commercial interests, particularly as they paid several times the rate of tax of Africans with the same income” and “the white population was responsible for contributing 'substantial investment, to useful development of the land and to a real improvement in the economy.”
When the independence talks started in earnest, the principal concern of the British government was that the rights of colonial settlers should be legally protected. On that basis, the independence of the future independent state was conditional on a bill of rights. Some of the research that Kirby quotes in his paper says that “by 1963, the British used bills of rights to protect minority groups in their dependencies after independence.” Three years earlier, Belgium’s exit from the Congo had featured violent attacks against white residents and Britain was determined to prevent such eventuality in Bechuanaland. This basically means that while the BPP stance made the British very nervous, a template for handing over power to an indigenous government was already in place three years before Botswana came into being.
Both the BDP and BPP drafted their own proposals for what to include in the bill of rights. While finding common ground in a stated wish for democratic freedoms, greater prosperity and at least some individual liberties, the key distinction between the two parties was in their stance on a more communalist notion of human rights. Kirby notes how the positions of the two parties were guided by differing attitudes toward white inhabitants.
He explains: “On the one hand, the People's Party's proposals for the collective rights of Africans demanded the return of European-owned land to the African population. On the other, the Democratic Party's ethos for individualist rights catered to white-minority interests by protecting their private property.”
The final product “had a functional role in allaying the fears of the European population.” Tellingly, when the bill of rights was first proposed in December 1963, “white residents from various districts held an unofficial gathering to confer on its perceived inadequacies.” There is no explicit mention about the black indigenous residents doing the same thing. Then again, an observation of present-day Botswana is useful in illuminating this particular aspect: “A. J. G. M. Sanders, a legal analyst, noted in the early 1980s how arguments based on the bill of rights were extremely rare and much of the population appeared unaware of its contents.”
In the March 1965 general election that followed the conclusion of the independence talks, BDP won with a huge margin and mission accomplished, white colonial settlers had no need to worry.
“In present-day Botswana, the High Court maintains original jurisdiction regarding the enforcement of the bill of rights, using it as the standard for testing all other laws." The bill of rights, according to retired Chief Justice Robert Hayfron-Benjamin, represents 'the ‘Grundnorm’ of independent Botswana, the country's ‘basic law’, a breach of which cannot be condoned',” Kirby writes.
The other important point he makes is that beyond allaying the fears of the European population, Botswana’s bill of rights was instrumental in attracting donor aid and sympathy from western nations. The result was that “because of its strong human rights record, Botswana became a donor darling in North America and western Europe.”
In the final analysis, Kirby observes that Botswana's western liberal-democratic framework was not developed out of an automatic consensus on these values, but a political contest between the BDP and BPP.
“Botswana's bill of rights was therefore not so much a decisive deterrent against imprisoning political dissidents or abusing individual protections as it was important at the symbolic level, as a tool for finding immediate approval from donor nations and human rights investigators. The document had its origins in a racial effort to protect the interests of the white minority, but it ultimately became a marker for external audiences of Botswana's success story for non-racial democracy,” Kirby writes in an academic paper that won the Francis Forbes Society for Legal History Prize.
With regard to the latter, he points out that “non-racialism in Botswana was formed through an ironically racialised process that featured competing notions of human rights.” Outside this work, many more have expressed grave concern about laws and processes that reflect and favour western culture over indigenous culture. While the context was different, President Ian Khama himself (Seretse Khama’s son) has frowned upon the legal principle that “ignorance of the law is no excuse.” In terms of the latter, an old man with no western schooling is expected to be familiar with all provisions of the penal code – which is wholly based on an alien legal tradition. Of its own volition and almost 51 years after independence, the Botswana Police Service retains the Royal Irish Constabulary system of policing whose practical effect is the brutalization of black people.
A PhD in history, Kirby has diverse research interests that include Botswana and Sir Seretse Khama. His doctoral dissertation analysed the history of human rights and decolonisation in Botswana from 1960 to 1980. When Botswana celebrated its golden jubilee in 2016, he wrote an article that was published in The Conversation, an independent, not-for-profit media outlet that uses content sourced from the academic and research community. The article’s title asked a question that many more people are asking: “Botswana at 50 - the End of an African Success Story?”