Botswana has changed a great deal in a very short time. It may well be that I am simply more aware of more now than I was in the years past. In fact, I am pretty sure that much of what I (and undoubtedly many more others) see as serious challenges in terms of governance, democracy, the rule of law, transparency, etc., have been the same for many decades, and that they were simply below the radar screen of public awareness. Whatever the case, it is evident that the changes or developments that have taken place in the recent past paint a distinctly ghastly picture of what we have grown up proudly knowing to be the envy of most African countries.
We of course attributed much of this enviable shining stardom of our beloved Botswana to the prudent and responsible leadership by those given the reins of power, which prudence we understood in part to be a product of our history as a nation state, as well as our culture.
As I sit here and write today, Botswana is lauded by governments and non-government organisations the world over as a shining example of a successful democracy in which transparency, prudent management of the economy, good governance and the rule of law (to list just a few) stand as hallmarks of the country’s administration.
Indeed, our leaders in government and other politicians have often quoted organisations such as The World Bank and Transparency International rankings which have frequently placed Botswana near (and sometimes indeed at) the top of a list of countries ranked according to one index or other. This in itself is a positive thing. I, however, wish to share my concerns about my country relative to some of the ideals based upon which Botswana is often celebrated as the standard bearer for Africa, and sometimes beyond. Indeed, the beautiful image that Botswana has enjoyed is beginning to be tarnished as a result (at least in part) of the areas of concern that I wish to share in this perspective.
I wish to emphasise that I am not aligned with any political party, and that this article is not meant to denigrate, malign nor vilify any political party or individual. My interest is in the welfare of my country and my fellow citizens, and I will disagree with any policy that I see to be against the interests of Batswana, regardless of the party affiliation of those who happen to be the sponsors of such a policy. I will also support and applaud those who, in as far as I understand, speak and act in the interest of all Batswana. There are individuals in our country who have stood out as men and women of principle and have acted to the best of their ability to pursue the selfless cause of advocating for the interests and rights of the disadvantaged. Notably, such individuals span the whole breadth of political affiliation in Botswana. They are citizens first and party zealots second. I applaud all such and I am proud to have them as fellow compatriots.
I also wish to make it clear that in no part of this discussion do I claim professional, academic (or otherwise) expertise in law or any area of social science. My training is in chemistry. However, I take interest in the social sciences to the extent that I understand them to impact on my life and my fellow compatriots at large. I believe that being an academic, and having been aware of my surrounding for a few decades now, I should (and I hope I do) have the minimum required understanding of some basic applications and implications of social science, such that I can make a meaningful contribution to any debate relating thereto. The following is an attempt to do that.
My purpose in this article is to give my philosophical perspective on how I believe law ought to serve us as individual members of society, and as a nation. I have often stated in some public discussions that my experience has taught me that every aspect of our dealings with one another as individual members of society is, one way or another, governed by law. We can, therefore, not afford to ignore law, whether it is the formulation or application of it. I have come to learn that law can be a facilitator of progress, an instrument for social order, the standard for morality, and also the “great equaliser” that ensures that citizens are subjected to the same code of conduct, regardless of position, wealth, education or whatever other determinant of social status.
I have further come to learn that the extent to which law is applied towards achievement of the above is a function of the “character” of the individual by whom, or system by which such law is enforced. In turn, this “character” of the individual or system is, to an appreciable extent, moulded by the prevailing culture. In this context, I conceptualise “culture” simply as the accustomed way of doing things and the value system that informs it. Thus, the effectiveness of a law towards achievement of any of the above-mentioned functions becomes a function of the culture in which such a law operates.
Let us take an example. In Botswana and America alike, it is illegal to run a red traffic light. In both countries, the law states that doing so is an offence punishable by law. In spite of that fact I have, on several occasions, witnessed motorists in our country run red traffic lights and getting away with it, sometimes in the sight of police officers.
As many would agree, such a scenario is difficult to imagine in a country like America. Such an offender would be nabbed in no time and the penalty would be pretty severe! It is not my purpose to suggest or imply that America is better than my country. I am simply trying to make a point based on my experience, having had the privilege of living in each of the countries for a cumulative period of over seven years. Having observed and thought about this phenomenon, I hypothesise that culture (defined as above) plays a role in how effectively a particular law is applied, if at all! This would make an interesting and useful study.
I have also come to learn that law can be an instrument of oppression, intimidation, victimisation and control. Therefore, given that law can be for or against the welfare of an individual citizen, or society at large, I posit that it is imperative that any law that is formulated in a democratic dispensation ought to clearly and unequivocally be for the purpose of fulfilling the positive functions listed above. It is, therefore, a foregone conclusion that extensive and meaningful consultation should be done with the people for whom such a law is made. It is also important that the motivation for such a law be clear and transparent to all who care to know. It should not require creative thinking to figure out how the law is meant to serve the interests of all the citizens. It is on that premise that I would like to share my views about how I conceive of law as an instrument, and its importance to me and my fellow citizens in Botswana.
The laws of the land form the code by which all citizens are expected to conduct themselves. It is my position that fundamentally, law ought to rest on a solid foundation of Morality. It ought to be based on a distinction of what is right or wrong and what is good or bad, as understood and accepted by the people for whom the law is made. Ultimately, law can (or at least should) be traced back to the cardinal precept; “Love your neighbour as yourself.” I am persuaded that even in cases where a law may not be directly linked to this precept, under no circumstances should it ever contradict it. In other words, no law should ever give licence for the harming of one citizen (in whatever way) by another, for “love”, as enshrined in the divine precept stated above, is a selfless principle that constrains us to consider the good of others as we do our own. Thus, all just and noble laws must necessarily hang on this cardinal command.
Yet history is replete with cases where unjust and oppressive laws have been instituted and implemented. Not so long ago, it was perfectly legal for a group of business men to bid on another human being who would be purchased to become the property of the highest bidder. The keeping of and trading in slaves was a perfectly legal business at the time. It was legal but wrong. Apartheid was a political system that was based on a set of legislation that sanctioned unequal treatment of people on the basis of race. Remember Sharpville massacre and Mandela’s imprisonment?
The reader will remember the many other examples of similar tyrannical and inhuman actions visited upon black South Africans at the instance of Apartheid laws. All these actions were legal but wrong. The list of cases where unjust laws have been put in place to suit the interest of those in power at the expense of the rest of the population, is endless. In all such cases, the root cause can be traced to self-interest and a lack of sensitivity to and concern for the needs of others by the sponsors of such laws. I am almost certain that the reader will agree that the laws alluded to above (which laws found expression in some of the atrocities mentioned), can be judged to have been wrong precisely because they grossly violated the precept; “Love your neighbour as yourself”.
It is my considered view that in formulating legislation, we need to be standing on the solid moral platform provided by this precept. By nature we are selfish beings. Without a supreme guiding principle outside of our selves, any law we put in place (particularly when such law is initiated and drawn up by a select few with vested interests), is bound to be self-serving, creating a new “morality” that is contrary to the principle of selflessness and the interests of the many. Without the guiding principle, man is apt to seek to protect his interests at the expense of others. In Botswana we are not immune to this natural but iniquitous tendency. I am, therefore, concerned about the manner in which the new Intelligence bill was introduced, to say nothing of its hair-raising content!
This argument is an attempt to lead to the point that it is not the lawfulness or constitutionality of an action alone that determines the legitimacy or otherwise, of such an action. More fundamentally, it is also the legitimacy of the law or constitutional provision itself, as measured against the Moral standard set by the precept “Love your neighbour as yourself” that we ought to be concerned about. My position is, therefore, that on the basis of the above, one can conceptualise what one may call a “legal wrong” that is, a wrong that is legitimised by law. The unjust and oppressive laws alluded to above fall in this category of “legal wrongs”. It is important to consider the fact that the law (and any provisions therein) can at best be as perfect as the standard against which such a law was formulated, and the motives for which it is enacted.
I am mindful that not all wrongs can be legislated against. There will, admittedly, be areas where the law is best left silent as regards moral matters, especially where it is considered that legislation would be intrusive to personal space with regard to freedom of choice. However, where the law speaks explicitly, I believe that what it renders to be legal must necessarily also be right, and what it renders to be illegal must also be wrong, as judged against the love imperative encapsulated in the precept above.
As I was reading the Intelligence and Security Service Bill, I could not help but wonder whom it is really serving, and how it reflects the government’s duty to the people. I see too many red lights in this legislation. It is disturbing, that, for example:
Whereas a list of activities that would be interpreted to constitute a “threat to national security” is given, no definition is given of what is conceptualised as “national security”! That appears to have been left to the discretion of the Director General and the President.
The meaning of “interest of Botswana” is dangerously subject to interpretation. Does it refer to the interest of the citizenry or the interest of government? There is need for clarification on this.
There is reference to “security interests of Botswana, whether political, military or economic”. What is political security?
There is much in this Bill that is very murky.
Given that this Bill gives such overwhelming power to the President, such lack of clarity is potentially very dangerous.
There is a compelling need to systematically dissect this bill and break it down to the understanding of the ordinary citizen, and then consult accordingly. DEMOCRACY demands it. Each man and woman in our Cabinet and Parliament needs to face up to that moral imperative. We owe it to posterity to strive to preserve the good institutions we have built over the past forty years, and to improve on those areas where there is room for improvement, not to retrogress. Otherwise our lives would be desperately devoid of purpose, other than a present-focused self-service.
