Do not underestimate the other side

I have often come across stories that claim that people with poor backgrounds are tougher than those who grew up with a supposed silver spoon in the mouth. This attitude has in my experience brought misery to the side with a poor background, and sometimes finds expression in outcomes of skirmishes between the privileged and the poor. In my view people with a poor background or with a supposed disadvantage often fail to grasp that those with wealth or privilege know how to protect their positions. This ability to protect their position is often underestimated by the poor or oppressed.
In the recent Basarwa case about access to the CKGR it comes out very clearly that the Basarwa had failed to properly apply their minds to the battle at hand. The suggestion that the court relied on technical objections to dismiss the Basarwa is with respect misplaced. Every lawyer knows that the choice of process to follow to approach the court for relief is within the control of the litigant. The Basarwa always knew that they will need to prove that they were residents of the CKGR in order for them to fall under the rule in the earlier case where other Basarwa had been successful. Proof of residence is a matter for evidence more especially if the other side disputes that a particular plaintiff is a resident of the CKGR.
I am in support of the Basarwa’s right to reside in the place of their ancestors. I however do not think such support extends to them choosing a particular process without having due regard to the risks of the process that they take. Their chosen process has only resulted in them incurring costs that they could have very easily avoided.
In the case involving BOFEPUSO and the DPSM again the claimants, BOFEPUSU elected a particular process to follow to approach the court for relief. Once they chose this process they placed an obligation on themselves to meet the requirements for that process. In motion proceedings the affidavits set out the facts in dispute and the evidence in support thereof. A person who deposes to an affidavit must be properly qualified to do so.
We must in our disputes have due respect for the rules of the game. It does not advance the growth of this country if litigants choose a particular process and cry foul when the risks that they elected to assume do actually manifest themselves.
Our courts have in certain instances given litigants who have elected to initiate proceedings in the manner done by both the Basarwa and BOFEPUSO an opportunity for them to approach the court by another way. I believe the same has occurred in regard to the Basarwa and BOFEPUSO. This is a feature of our legal system that allows issues to be determined on their merits. The sad reality though is that such an opportunity comes into play at a cost and loss of time.
As Botswana makes efforts to attract foreign direct investment one of the attributes that investors look at is the impartiality and quality of our judges. I recently told an acquaintance that the problem with Zimbabwe is not the laws on indigenization but rather the apparent bias of the judiciary. It does not really matter what laws you have in place. An investor looks to identify the risks and to know that those are unlikely to change for the worse in the near future or for the term of his investment. One of the ways to secure the risk profile of an economic venture is to be able to predict what the decision of the court will be on a particular issue should such an issue arise in the future.
If shareholders in a private company have a dispute about the direction that a company is to take our company law states that the majority decision of the shareholders takes sway. In a situation where the courts allow a minority shareholder to hold sway over the majority then we have a serious assault on our company law. Should such a situation become public knowledge we then put our government’s efforts to attract foreign direct investment at risk. The court’s in allowing such a situation to persist act against our national interests and puts our law into disrepute.
I recently heard one of our leaders, I believe he is the acting CEO of the institution that is supposed to deal with foreign investment remark that in order to diversify our economy we have to attract foreign direct investment. I was disappointed for the gentlemen was repeating something that we have known for ages. I then wondered what we really expect from leaders who repeat what we have known for ages. This country does not need to pay people to tell it what it already knows. It needs people to come up with new and innovative ideas of how to resolve the problem of economic diversification.
I have also wondered what sort of investor we think we are attracting if the investor has to be told that we have a stable democracy and peace for ten years before he realizes that we are a viable economic prospect. Such an investor who takes ten years for an opportunity to be hammered into his heard is obviously an idiot, and cannot by any stretch of the imagination be a serious investor.
The time has come for this country to listen to people who are outsiders. I have said this before, and repeat it, for I think our government needs to understand that it cannot limit the pool of thinkers to people who repeat what the whole country knows, and hope to come up with new and innovative ideas from this pool of people. Botswana is faced with problems that cannot be solved by singing the same mantra for twenty years. We know what the problems are we now need ideas. It is pointless to pay someone to repeat what we know.
I have said this before and I say it again. The nature of our constitutional set up is such that it allows our president to take risks in terms of acquisition of knowledge and ideas. If he listens to people he will never want to be seen with and makes a mistake, we have already forgiven him. What is the point of being forgiven if you only make mistakes arising from listening to your friends? If I was president I would listen to people I positively dislike for there is no harm to me arising from this.
I am reminded of the story in the Bible of a king who sought advice from 400 prophets who all told him that he could go to war and that he would be successful. His partner asked if there was any other prophet that could be asked about the prospects of success. He said there was one prophet who always prophesied negative things about him. True to form the prophet was consulted and he said if the king went to war he would die. The king was angry, went to war and died.
Though I do not consider myself a prophet I sometimes wonder whether anyone ever suggested to Rre Khama that he should consult me? If no one has ever suggested this what sort of friends and advisors does Rre Khama have? The point here is not about me in person but rather whether Rre Khama’s advisors have ever suggested to him that they know someone that he is unlikely to want to listen to, but that in their view it would serve him and this country well for him to listen to the person.
It is pointless to have advisors who are cowardly and lack the courage to tell you that there is someone who they positively dislike but that because of his position he can take the risk of listening to this character because ultimately the decision as to which direction this country takes is his. If I was president I would ask my advisors if there was someone they went to school with who they know was their better or equal but who is not amongst them. I would then ask them why in all these years that they have been of service to me they have never felt free enough to let me know of this person and to meet him or her?