A Court of Appeal (CoA) judgement explains in stark terms what the government is never going to be able to out in words as COVID-19 wreaks havoc on people’s lives.“We do not agree that socio-economic rights, such as the right to health, housing etc, and, in this case … to fair labour practices, have by integration become rights enforceable under the Botswana constitution,” says a judgement that has been handed down by the Justice President of the Court of Appeal, Justice Ian Kirby.This line has a lot of relevance at a time that the national economy has had to be shut down for almost two months as a public health measure against COVID-19.
For some, especially those in the informal sector, shutting down the economy means missing rent payment, which puts them on a collision course with landlords. While President Mokgweetsi Masisi has, in using his state-of-emergency powers, decreed that employers must not fire employees to mitigate the financial situation occasioned by the lockdown, he was never as explicit with regard to the payment of rent. As a matter of fact, when parliament met for a special session last month, MP after MP wanted the government to make a clear pronouncement of what protection the government was providing for tenants who can’t afford to pay rent. Such pronouncement was never made and some landlords have begun evicting tenants who missed rent.What Kirby’s words mean is that if there are mass evictions and thousands of people find themselves homeless, the government would be under no legal obligation to provide housing for them.
As the judgement states, the founding fathers were well aware of an anomaly that countries like South Africa have legally guarded against.“In Botswana, the fundamental rights which are protected are those listed in Chapter 2 of the constitution,” says Kirby’s judgement, referring to a chapter that lists civil liberties. “They do not include socio-economic rights, and this was no doubt a deliberate decision made by the drafters. Our constitution differs, in that respect, from the constitution of South Africa.”The complete lack of socio-economic rights is something that a former High Court judge and legal scholar who now works in Papua New Guinea, has written about.
In “Constitutionalism and the Rule of Law in Botswana”, Justice Dr. Key Dingake laments the absence of socio-economic rights in the country’s constitution.“This does not mean they are not rights. It only means that in the context of Botswana they may not be justiciable (capable of enforcement) because they are not constitutionally entrenched,” Dingake contends in the book.He hazards the guess that the possible explanation for this anomaly is that at the time the constitution was drafted, civil and political rights were separated from socio-economic rights on the reasoning that the latter were not legally enforceable. That notwithstanding, Dingake argues that there is absolutely no reason why the latter should be perceived to be less important than civil and political rights.
“It is therefore incumbent upon nations, more particularly the United Nations system, to bridge the gap between justiciability of civil rights and political rights and that of socio-economic rights. The general argument advanced against the justiciability of socio-economic rights is that socio-economic rights impose positive duties for states, such as the duty to provide housing as contrasted with negative obligations, such as duty not to abridge freedom of movement, for instance.”
Other CoA judgements have also stressed the point that Botswana constitution does not make provisions for socio-economic rights. In one respect, this means that until and unless the constitution is amended, the homeless can’t seek legal recourse through the court system because the highest court in the land has ruled that nobody has housing rights.