Sunday, July 3, 2022

It’s not a question of courage but justice

The way our government is treating the Basarwa reminds me of the story I once heard that a Mongwato once told a member of one of the lesser tribes that “O mosarwa wame, le peba ya gago ke mosarwa wa peba yame,” loosely translated; “you are my servant, and your mouse is a servant of my mouse.” The government is saying to Basarwa “You are my servant, and your lawyer is my lawyer’s servant.”

Effectively government is saying “You are my servant, and your justice is my justice’s servant”
I have been told that there are some who cannot bring themselves to do business with me because they are uncomfortable with the views I express. To be quite frank they should ask themselves why I have never felt the need to approach them for any business deal. You see, I grew up at a time when Botswana was corrupt for major projects but was relatively fair for lower value projects. Lesser known people like me were given opportunity to earn a living without being known to any high ranking government official.

I have recently heard of a story involving a citizen who has throughout his public service life stood against citizens. I laughed when I heard that some foreigners had his number, that is they knew how to manipulate him. When I was chairman of ACDC (Association of Citizen Development Consultants) we had arguments about citizens being given a fair chance to grow. This character always found reasons to frustrate our efforts. All we were saying to people like him was “change the law so that you favour citizens so that you can legitimately earn a living in the construction industry.” He refused. Now I hear that foreigners know when he is broke and can manipulate him. What a sad joke.

I do not understand why our courts have any need to reserve judgment on the Basarwa case. Anybody with a rudimentary understanding of the rule of law knows that efficiency is one of the principles that underpin the rule of law. The principle states that where the same legal principle has to be determined in an issue, and the principle holds in the later case there is no need for the courts to waste resources by re-investigating the issue. At the heart of this principle also lies the idea that courts must preserve their dignity by avoiding conflicting decisions. The Court of Appeal has determined that Basarwa of the CKGR have a right to reside there. To limit this right to only those who litigated in the initial case is absurd given the application of the principle of efficiency to the rule of law.

To split Basarwa into those who litigated and those who though residents of the CKGR did not go to court is with respect absurd. The right to reside in the CKGR was not created by the determination of the Court of Appeal. The Court of Appeal rather re-affirmed an existing right. Litigants go to court to claim a right, not to have the court create the right. This was not a procedural matter but a substantive claim of right. It is therefore ridiculous to say because you did not go to court you have no right. Must the courts be flooded with cases of each and every Mosarwa of the CKGR? The first step the courts will do is to consolidate the cases since they involve determination of the same legal issue.

The placing of the Basarwa lawyer on the list of persons requiring a visa to enter the country is with respect not material for application of the rule of law and its underlying principle of efficiency. As a country we should never be seen to be suggesting that we uphold the law only when certain individuals represent some litigants. We must uphold the rule of law even when no foreign individual participates in a matter. I know that there are those who have focused on the visa requirement and suggested that Basarwa are being denied a lawyer of their choice. This may very well be of some concern, but the principles that I set out above are not dependent on the presence of certain individuals.

Our judiciary would be a disgrace if it was found to uphold certain fundamental principles only if certain individuals appeared before its courts. Our government has to accept the uncomfortable situation that it can be defeated by the least amongst us, not because the least are represented by certain individuals but because justice demands that government loses. It is in the nature of life under the rule of law, as has been noted by Sir Seretse Khama, that ordinary unsophisticated Batswana could teach the so called sophisticated people a thing or two about how to live in harmony with each other. Are we suggesting that Seretse was wrong, we do not know how to live in harmony with each other?

Our government’s attitude to the Basarwa of the CKGR is with respect to those who advice and make decisions, a misguided one. Rre Khama is extremely popular. All that he needs to do is talk to the Basarwa of the CKGR and explain to them his ideas about this country. I am sure a movement from rigid coercion to persuasion will be sufficient. I am sure the Basarwa are not so rigid in their position that they will not bend.

Because Rre Khama is a kgosi of the Bangwato, a tribe that has for generations inflicted harm on Basarwa they will be looking forward to a situation when he comes to go down to their level to treat them as equals. I am sure that should such a situation arise the Basarwa will view this as more important than fighting to stay in the CKGR. Sometimes you win someone over by humbling yourself in order to communicate your view with them.

I know for a fact that those accustomed to having their way may suffer from the inability to see that defeating someone only to give them their rights is not always a viable option. A kgosi may sometimes understand issues from a position where he first defeats you and humbles you, and you then come to ask for his favour. Things do not always work like that. Sometimes a kgosi strikes a compromise in order to avoid being defeated by an ordinary person. If a kgosi gets defeated by a lesser man he becomes vulnerable to those who feared him before. They now know that he can be defeated. It is therefore wise for a kgosi to choose his battles carefully.

Fighting Basarwa in the manner that our government is doing is too crude. I have relatives who originally were my grandfather’s people. They are now my aunts, uncles, sisters, brothers and cousins. There is no going back, for my ancestors accepted the idea that we are all human beings and equal. Seretse Khama sold an idea and our people bought into it. It is an idea that means a lot to us, and if it requires taking a stand against Rre Ian Khama and his government I will gladly take that stand.

We now have a different justice regime born out of acceptance that we are all human beings and equal. We would not be safe it we were to accept that there are exceptions to this rule. If we do we will soon be classified as members of the lesser people and have our rights trampled upon. The safest way to protect your rights is to protect those of the lesser tribes to make sure that they are maximized. Self interest suggests that ordinary Batswana stand with Basarwa for if they maximize the rights of Basarwa they ensure their own.

When you trample on the lesser amongst yourselves you establish the levels to which you can decline. When you elevate the rights of the lesser you establish the minimum levels to which you cannot go below. Self interest suggests that as a people we should uphold the greatest rights for the lesser amongst our mist. That is why I am not interested in the might of government but rather in curtailment of its power over Basarwa. It is only by protecting the Basarwa through application of the rule of law that we protect ourselves.

Unsophisticated Batswana not well versed in Western notions of equality long knew that their relationship with Basarwa was untenable. They relied on Basarwa for knowledge of traditional herbs and medicines and had children with Basarwa. They accepted Basarwa as human and equal to them. I do not think they ever thought that their acceptance of Basarwa as equals meant that so called civilization was to be forced on Basarwa. It is time Rre Khama used his huge popularity and position as a kgosi of Bangwato to bring Basarwa into the fold through persuasion. The court process is making our government look ridiculous.

RELATED STORIES

Read this week's paper