Recent events have made me realize that there are certain aspects of our nationhood that need to be explored. It seems to me that we have all along assumed that we all know what has actually happened in the coming into existence of the nation of Botswana. If we teach ourselves of what has happened, we will avoid a lot of friction that currently informs our public discourse or relations between those that govern and those that at some point led or continue to lead some sections of our nation.
There is a very clear distinction between leadership and governance. In the case of leadership it is possible to lead without being accountable. In the case of governance such is not possible. There are authorities, of commonwealth courts, that suggest that under the Commonwealth there has been a transition from leadership to responsible government. The authorities also suggest that the executive derives its power from statute and is accountable to parliament. Responsible and accountable governance is therefore a feature of Commonwealth governance.
In the Australian case of Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd [1920] HCA 54 Lord Haldene is quoted as having said in regard to a bill for the constitution of Australia “This bill permeated through and through with the spirit of responsible government, a government under which the Executive is directly responsible, nay, is almost a creature of the legislature. This is not so in America, but is so with all the Constitutions of our self governing colonies” Can we claim a lesser pedigree for our constitution? I submit that we cannot.
In the South African case of Bato Star Fishing v Minister of Environmental Affairs CCT 27/03 at paragraph 22, the court stated that “ There are not two systems of law regulating administrative action, the common law and the constitution, but only one system of law grounded in the constitution”. Replace the words “administrative action” with “governance” and you get to appreciate the centrality of our constitution to our governance.
I am well aware that there are cases that hold that Roman Dutch law is part of our law. This however does not detract from the fact that when it comes to governance, our constitution is supreme. There is therefore no governance founded on tribal or customary law separate and distinct from our constitution. Leadership of tribes likewise is subject to our constitution. If we knew this we would save ourselves a lot of aggravation by thinking that there is something called culture that is separate and independent from our constitutional order.
I must not be understood to be suggesting that our constitutional order does not recognize cultural rights. Far from it, it does. But such rights must be founded on the constitutional order that we now have. If such rights contradict our constitutional order they cannot be founded on it. We must understand our constitution from the context in the same way as expressed by Innes CJ in Dadoo Ltd & Ors v Krugersdorp Municipal Council, that “ Speaking generally, every statute embodies some policy or is designed to carry out some object….” There is no way that the constitution can be relied upon to carry out something that is contrary to its policy or object.
In the South African case of Barkhuizen v Napier, the court stated that public policy “ now derives from our constitutional values of human dignity, the achievement of equality and the advancement of human rights and freedoms, non racialism and non sexism”. Can we positively say that the constitution of Botswana does not have the same values? A look at the provisions of our constitution will show that indeed it has the same values. A leader who seeks to operate outside the constitutional order will have a tough time conducting his affairs whilst claiming to maintain the same values as our constitution.
The above shows the nature and substance of the relationship that citizens have with their government and leaders. Leadership at tribal level is subordinate to the relationship that citizens have with their institutions of governance. Rre Ian Khama is my kgosi at tribal level but this is not a governance relationship. It is just a leadership relationship. When it comes to governance our relationship is determined by the constitutional order. He is not as my kgosi accountable to parliament but as president of a country of which I am a citizen, he is accountable to parliament. He and I have no choice in this matter. I cannot waive his duty to account to parliament. Neither can he.
Our constitution states in express terms that cabinet accounts to parliament. This is consistent with responsible and accountable governance. Can any of our tribal leaders tell us of a similar provision in their tribal constitutions? I submit that they cannot. But our constitutional order imposes such a feature in any institution of governance. If bogosi were an institution of governance our dikgosi would be subject to the feature of responsible and accountable government.
Even in South Africa, where Kgosi Kgafela is supposed to have relocated, he will find that there is no customary or tribal cultural law separate and distinct from the South African constitution. He is therefore from a governance point of view in no better position in South Africa than he was in Botswana. He may have access to more financial resources but he cannot but subject himself to the South African constitution.
When a kgosi acts not as part of our governance he does not thereby elevate himself to a position above our constitution, for that is impossible to achieve. When a kgosi acts as a leader rather than part of our institutions of governance, he does not waive our constitutional governance structure. There can never be a point under a constitutional form of government when a kgosi assumes immunity from constitutional restraint. So called culture can never be relied upon to escape the restraints of constitutional order.
Once we appreciate the essence of constitutional order we will appreciate that we are all bound thereby. We will appreciate that all law or exercise of governance power now derives from the constitution. We do not have parallel governance structures, one based on the constitution and one on culture. We have only one governance structure, founded on the constitution. That is why a commoner can become president and govern dikgosi. Any kgosi who does not understand this is likely to do himself and his tribe harm.
The issue of preservation of culture also confuses a lot of our people. We fail to appreciate that culture does not create itself. Some have said that culture is dynamic. In my view this does not adequately communicate what is actually taking place. Once we established a unitary nation sate, we created a start point for a new and different culture distinct from what we had before. We may have retained some characteristics of our past but we must recognize that we have started ourselves on a new society with potential to create a new and different culture.
I remember reading somewhere that at the nascent stages of our new state some old Bangwato had a tough time understanding why they were to suddenly treat Basarwa as human beings, equal in standing to them. In their culture Basarwa were sub human, to be ill treated at will with no consequence. The new order now said they had to treat them differently. The new constitutional order introduced a new culture. It is the development of this new culture that the attribute of dynamism should be ascribed not to culture before the new order.
The idea that preservation of culture is a feature separate and distinct from the new culture is flawed. What we have taking place is development of a new culture with some remnants of our past now made part of the new cultural order. The new culture also has new features borrowed from other cultures. To suggest that we are preserving an ancient culture is to fail to see what is taking place. There is no preservation taking place, rather there is creation of a new culture taking place. Observe how we have largely limited what we retain from the past in the form of dance and clothing. But look at the explosion in other areas of culture and tell me that we are not creating a new and different culture.
We must as we celebrate our independence take time to reflect on what exactly is taking place. Independence did not usher in a substitute for tribal rule. It established a new and distinct order of governance. It established a new constitutional order with underlying objectives and values. It is these objectives and values that we need to promote. I wish you all a happy independence day.
