This is a second and last part of a contribution inspired by Lediretse Molake’s article which appeared in the Sunday Standard of January 3-9, 2008.
The point that Molake makes about our Constitution not being taught in schools should cause us to pause and reconsider what we are about as a nation state. We need to reflect on what the essence of the Constitution is to us, particularly as it relates to our self-concept as an independent state. That after four decades of independence our Constitution is still not taught in schools clearly demonstrates that our leadership over the years has failed to recognize the cardinal importance of the contents of this document in helping the citizen to fully appreciate the meaning of their citizenship within the context of an independent nation state. The Constitution, as the foundational and supreme law of the land, should not only be taught to all citizens at the earliest opportunity; it should also be translated to our local languages as well, in order to make it intellectually accessible to and “internalizable” by all our people.
At the very least, we should by now have the Constitution written in our national language, Setswana.
To still have this all-important foundational legal document available only in English, particularly when a large percentage of our people still have limited comprehension of the language, is to effectively deny our people an opportunity to attain a “working knowledge” of the provisions of the Constitution. It is this “working knowledge” that the citizen requires in order to be able to know when and if they need help, in which case they would engage the services of a lawyer. The Constitution (and any matter legal in the Roman-Dutch sense) has thus been rendered exclusive territory to the average citizen, only to be visited by the elite. Yet a moment’s reflection would reveal that if there is any single document the essence of whose contents every citizen ought to have some appreciation of, it is the Constitution. So why do we not have a Setswana version of the Constitution? This is also an issue of national pride. Why should we use our language only for the routine social transactions and matters relating to ngwao, but not as the medium of communication of the very legal principles and doctrines that form the bedrock of the laws by which we are governed?
Whether by commission or omission, our leaders have effectively deprived the majority of our people an opportunity to develop an enlightened self-concept within the rubric of law in Botswana. Whether this is by design or by default, the result has been the same: a generally legally illiterate people who can be easily manipulated and controlled by the politically and legally savvy.
Incidentally, some of us have been recently dismayed to discover that entry to the Laws of Botswana on the Government of Botswana website is “restricted”. Even more baffling was the explanation given over Radio Botswana by the Attorney General (with great respect to her) for the “restricted access” to the Laws of Botswana on this website. The reason given was to the effect that for now, government has decided that the Laws of Botswana should be accessible on-line only to civil servants through the government network, and that for “security reasons” it was decided that it was not yet time to make the laws accessible through the worldwide web. I found this to be a very curious explanation, especially when one considers that:
The Laws of Botswana were never meant to be known by civil servants any more than by every other citizen. In fact, the Laws are not even meant to be known by citizens only. Anybody who is within the borders of this country is subject to the laws of the land and as such they are better off knowing what the law says and requires.
Since the law is the standard of justice, every effort ought to be made to ensure that each and every person within the borders of this country can access the laws as easily and conveniently as possible. That every one of our actions and utterances, commissions or omissions is judged according to the law, also underscores this point.
By making the laws less convenient to access (relative to if they were on-line, for example) the principle that “ignorance of the law is not an excuse” is rendered fundamentally unfair and unreasonable. Strictly speaking, law does not exist to those who are ignorant of it. To hold someone accountable for a law that you have not made known to them, or made easily accessible to them (either physically or intellectually) is comparable to making a law and then applying it retroactively to criminalize acts that were committed prior to the enactment of that law.
Even the Bible says that in the time of ignorance God winks at (overlooks) our sins… (Acts 17:30). The Apostle Paul also posses the rhetorical question: How would I have known what lust is if the law had not said “Thou shalt not covet”? (Romans 7:7) The Apostle John put it this way; “Whosoever commits sin transgresses also the law: for sin is the transgression of the law” (John 3:4). In other words, sin (and in our context, crime or legal offense) is defined only where there is law, because sin (crime) is the transgression of the law. Paul, therefore, concludes that “…where there is no law, there is no sin…” (Romans 4:15), hence in the time of ignorance [of the Law] even God overlooks our sins (Acts 17:30). This is because the definition of sin/crime is in the law, and to an individual the existence of the law is in the knowledge of it. Note that we say knowledge of the law, not just about the law. The very notion of law presupposes a Lawgiver who speaks to a law recipient. When the law of the land is inaccessible to the people (either physically or intellectually), the Lawgiver “speaks” the law, but there is nobody there to “hear” it. Even where the law was meant to empower the recipient of it, the same remains powerless due to ignorance of the law!
Contrary to the position held by some, that making the Laws of Botswana accessible to all would compromise National Security, I am of the distinct view that ignorant people are insecure people. It is when people are not aware of what the law says that they are vulnerable to abuse. Those who are ignorant are at risk of having their rights denied them. When one knows what the law says, such a one becomes personally accountable to the Lawgiver. However, he is also in a position to hold others accountable on the strength of the provisions of the law. Easier access to the Laws of our land would therefore render us a more knowledgeable and secure nation. Those who are conceivably more secure because of ignorance to the law, are those who thrive on the ignorance of others. If you have committed a crime, it is in your interest if no one knows about the criminal deed, or if it is not known that the deed was criminal. Ignorance of the law (by others), therefore, provides security only to criminals.
I am, therefore, not convinced by the “reasons” advanced in defense of the restriction of access to our Laws on-line. I am afraid such “reasons” sound more deceptive than genuine. It could well be that there are real and good reasons, but the ones given don’t fit the bill.
I also concur with Molake that “western forms of government are stuck in the coercive and deceptive war stage”. To aspire to be like them (in this particular regard) would be akin to following a blind man into a ditch, even after seeing him falling in! One only needs recall how George Bush plunged so many countries into the blood baths of war in Iraq and Afghanistan in defiance to all facts, logic and common sense. The general response of governments to workers’ or students’ protests is also almost invariably in the form of coercion and sometimes outright brute force. That is clear testimony to the failure to engage in the superior war of ideas. We need to graduate from the deceptive/coercive stage, and advance to the more progressive “engagement” stage, whereby we encourage and facilitate debate with the common goal of improving the status quo. This is how to respond to the ever changing local and global economic and socio-political landscape.
When asked how he was able to achieve the great breakthroughs in science, Sir Isaac Newton responded to the effect that “if I can see further than others, it is because I stand on the shoulders of giants”. Newton positively capitalized on what others before him had already built to push the frontiers of science to a higher level.
We can also stand on the shoulders of giants like the Britains and the USAs of this world, and propel ourselves out of their coercive/deceptive governance mode to the more liberating idea- and consultation-based governance. We do not have to just follow on the evolutionary foot-steps of others, even when we can build and improve on what they created. In the increasingly competitive and fast globalizing world, we have to believe that we can also set trends that can be followed by others. We should not wait for Britain to tell us (directly of otherwise) that it is a good thing to enlighten our people, while we already know it to be so.
My dear fellow citizens, it is true that we are a politically independent nation. However, that alone is not enough. It is crucial to achieve mental/intellectual independence as well. There is no better way to achieve this level of independence than to intentionally cultivate a culture of open and honest debate of issues. Indeed the attainment of our National Vision is in large part conditional upon achievement of intellectual independence. Intellectual independence is also a necessary condition for economic independence, including economic diversification. The challenge is that in order for those in positions of authority to facilitate intellectual independence, they have to be thoroughly honest and courageous. As a leader, when those whom you lead are enlightened, you are held to a relatively high standard, and you become correspondingly accountable. As human beings however, our general tendency is to try to get away with as much as we can without accountability. To empower those we lead to hold us accountable requires courage and nobility of character.
I am optimistic that in due time we will witness the emergence of leaders who will truly empower our people by equipping them to be better able to engage in a contest of ideas. We need to prepare our field for the more superior war of ideas.
Remember, in this battle, there are no winners and losers.
Dr. Nnyepi is a Lecturer at the University of Botswana.
