Tuesday, October 26, 2021

Ignorance of BDF’s Fraternisation and Sexual Harassment Policy is no excuse

Perhaps the toughest standard in Roman-Dutch law is one that requires people to obey laws that they don’t even know and is expressed as “ignorance of the law is no excuse.”

In Botswana, for example, “vitiating the atmosphere” is an offence that the Penal Code attaches criminal liability to but not only are some people clueless about the meaning of the gerund, they also haven’t heard of that provision. End result: a clueless rapturously vitiating the atmosphere with abandon risks prosecution because he – or she, is breaking the law. If you think that is unfair, then try joining the Botswana Defence Force (BDF).

Upon joining the BDF, Thabang Tlhapisang and Kozondu Uariua say that they were never told of the Fraternisation and Sexual Harassment Policy that was later used to kick them out of the army two years ago. In terms of a romance caste system within the army, a private (Kozondu) cannot be romantically involved with a lieutenant (Tlhapisang) but that is what happened. In the affidavit that she deposed to and that her boyfriend confirmed, Tlhapisang stated that she was never made aware of this policy on joining the army. However, as the couple would find out when judgement was handed down, ignorance of a policy they were denied access to is no excuse.

“The records of proceedings show that while the applicants may not have known of the Fraternisation Policy, such policy had nonetheless been in existence since 2007. For this reason, it matters not in my view, that the applicants were not aware of it. They were bound by it. This is so because the first applicant joined the army in 2011 while the second applicant joined in 2008. Both the first applicant and the second applicant found the policy in existence,” said Justice Dr. Zein Kebonang in his judgement. 

Given the precise circumstances of the High Command’s custodianship of this policy, Kebonang’s finding brings the ignorance-of-the-law-is-no-excuse principle into sharper relief. There is a reason the Attorney General didn’t contest the couple’s assertion about not knowing about the policy because for some strange reason, this document is confidential. Sunday Standard has independently verified that while they are expected to comply with the policy, soldiers are denied access to it. That notwithstanding – and as the judgement confirms, they are expected to know its contents and fully comply with them. 

This is the umpteenth time the High Court has applied this legal principle.

When making a ruling in a case in which a Gaborone company, Daisy Loo, was claiming P21 million from the Gaborone City Council, the late Chief Justice, Julian Nganunu, said that the former ought to have known that it was a legal requirement that projects worth more than P5 000 had to be tendered for because the Public Procurement and Asset Disposal Act so prescribes.

“Ignorance of the law is no excuse”, Nganunu said.

When it was reported to the African Commission on Human and Peoples’ Rights by John Modise for denying him citizenship, the Botswana government also invoked this principle. The government lawyers quoted provisions in the constitution that disqualified Modise from being accorded the citizenship he sought and submitted that he could not “hide behind the excuse of ignorance because no one is expected to be ignorant of the law.”

This principle originated in ancient Rome and was explained in the following way by John Selden, the early 17th century English writer and jurist: “Ignorance of the law excuses no man; not that all men know the law; but because ’tis an excuse every man will plead, and no man can tell how to confute him.” As the Roman empire grew, this principle was exported to areas whose cultures were completely different from Rome’s and the pattern was replicated when some of the colonized (the British for example) became colonisers themselves.

What is interesting about the BDF case is who the commander-in-chief of the army is and what he has said in the past about this issue.

“I am sure you will agree that no one should be subjected to the indignity of losing, for example, their property or reputation simply because they are ignorant of the law, or they cannot afford to pay a lawyer to enforce their right,” said President Ian Khama when officiating at a workshop on access to justice a few months after his ascension to the presidency in 2008.

At this point, the fraternisation policy was a year in existence, having been promulgated when Festus Mogae was in command. As far as is known, Mogae had never expressed his views on this subject. With less than two years left in his term, Khama has done nothing about this controversial standard because in Botswana, it is the executive that makes laws while MPs merely rubberstamp it. “Rubberstamp” is actually taken out of the horses’ mouths.

At the time Khama made his views on ignorance-of-the-law-is-no-excuse, then Mogoditshane MP, Patrick Masimolole, was chairperson of the parliamentary Law Reform Committee. Masimolole said that the application of this principle did not make sense in the Botswana situation. He gave a very real, if tragic example of a married man who, in his ignorance of Roman-Dutch law, assumes that he has unrestricted access to his conjugal rights and learns, after the fact, that he has committed marital rape.

In ancient Rome, the principle would have made sense because the laws were drawn from the culture that citizens lived every single day. Expecting people to know the law was legitimate and not unlike a standard in traditional Tswana societies where people were expected to conduct themselves in accordance with customary protocols. Circumstances are different now but in the past, everyone in the community would have gone to an initiation school and in that way would have been familiarised with society’s laws. There would also have been continuing legal education provided by the parents and the wider community. However, centuries later and in a completely different cultural context, expecting people to know laws from an alien culture appears to be too tall an order.

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