There is something that the men who would become the founding fathers of the future state of Botswana couldn’t find during the independence talks ÔÇô the need for citizens to have socio-economic rights. What was odd about that was that during this same process, these fathers (all black men) agreed to a rights framework that protected the property of a small white settler minority.
Part of this unsanitised version of Botswana history is a safe thousand nautical miles away in The National Archives of the United Kingdom and was recently dug up by Dr. James Kirby of La Trobe University in Australia. Kirby distilled his research findings into an academic paper titled “Conditional on a Bill of Rights”: Race and Human Rights in the Constitution of Botswana, 1960-66.”
The pre-independence talks featured two political parties: the Bechuanaland Democratic Party and the Bechuanaland People’s Party. Upon independence, Bechuanaland would become Botswana. With a leadership largely composed of former anti-apartheid activists who had been expelled from South Africa, the BPP wanted what Kirby describes as “explicit economic and social rights.” The party took the view that “white inhabitants adhered to a foreign concept of ownership and had an illegitimate claim to property within the protectorate” and one of its resolutions stated that “all land termed crown and/or European settlement in any part of our country … must be restored to the indigenous people’, including an elimination of all ‘artificial barriers and boundaries.” The party also wanted every piece of land sold by the colonial authority restored to indigenous people of Botswana 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.
Conversely, the BDP “rejected the need for socio-economic freedoms in the constitution.” Its leader, Seretse Khama, who would become the future founding president of Botswana, “promised instead to deliver economic prosperity by way of a comprehensive development plan that could rely on the ongoing presence of foreign white capital.” His party “saw the protection of private property rights as pivotal for preventing the flight of white capital after independence and maintaining the cooperation of the British, who would continue to be a leading source of aid for many years.” It was on the basis of the latter that the independence talks produced a bill of rights that was purposefully designed to protect the economic rights of a small group of white settlers.
In the subsequent election, the BPP was defeated and such defeat “marked the loss of its vision for collective rights.” On the other hand, the BDP’s “overwhelming victory in the political debate on constitutional rights may have been decisive in the neglect of an alternative, but now forgotten, utopia for the socio-economic freedoms and collective rights of the African population.” Some five decades later, even some BDP members are concerned about the outcome of talks that favoured white colonial settlers over the majority indigenous population. The independence constitution explicitly provides “protection from deprivation of property.” White farmers in the Tati area were among those who lobbied for this protection and resultantly are now sitting on vast tracts of land, some of which has been lying fallow for decades. Contributing to the 2018/19 budget speech a fortnight ago, Tati East MP, Guma Moyo, called on the government to repossess and redistribute this land without compensation. It is unlikely he was quoting the BPP leaders of the pre-independence era but he was certainly expressing a viewpoint shared by a good many people who live in the northern part of the country.
In his book, “Constitutionalism and the Rule of Law in Botswana”, Justice Dr. Key Dingake, late of the Gaborone High Court, has also lamented 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,” he writes in the book.
Kirby notes that while Botswana has signed and ratified major international human rights treaties – including the International Covenant on Civil and Political Rights in 2000 – it has excluded the International Covenant on Economic, Social and Cultural Rights.