Customary court presiding officers, government officers and the rest of Batswana may not agree on much, but their joint operating ethos too often boils down to an attitude of: “Zimbabwean immigrants are a problem and something needs to be done about them” ÔÇô Writes SUNDAY STANDARD REPORTER
Kgosimotse Sebele probably didn’t give it much thought.
When a Zimbabwean young man accused of stealing a small tin of shoe polish was arraigned before him, the Urban Customary Court Deputy President did what comes naturally to most Batswana these days: He sent out a strong message to Zimbabwean criminals that they are not welcome in Botswana. Sebele sentenced Collen Zvigumbu to flogging and seven months in prison.
“I am sick and tired of criminals coming all the way from Zimbabwe to commit crimes in Botswana.
I hope this sentence will send a strong message to Zimbabwean criminals that they will not go unpunished in Botswana” he said.
A few minutes earlier, the Urban Customary Court let off a Motswana young man who was caught with stolen booty after breaking into a shop.
As recent cases of racial profiling go, Sebele’s actions aren’t the biggest deal around. Those who know the Bakwena royal who presides over cases from Bontleng and Old Naledi locations – remember him as a kind man who would never hurt a fly.
Then Shop keepers around Bontleng and Old Naledi started complaining about Zimbabwean shop lifters; homeowners complained that Zimbabweans were breaking into their houses and residents complained that Zimbabweans had turned their neighborhoods into crime spots. Sebele watched as the case load of Bontleng and Old Naledi trebled.
Twenty six years after government tried to transform Old Naledi from a dangerous slum to a peaceful township, the project seems to be going terribly wrong.
John Van Nostrand and Michael Wellwood, two Canadian architects who were flown into Gaborone in 1978 to work on the upgrading of Old Naledi, an illegal settlement of 8600 people on the outskirts of Gaborone, and transform it into a bonafide extension of the capital would hardly recognize their creation.
Recalls Van Nostrand and Wellwood: “The next six months of using our eyes and ears ended up as a learning process that spread over the entire three year period of the project ÔÇô and it completely reversed the original plan.
We discovered that far from being a chaotic slum Old Naledi had a well established order with residents already hard at work at improving and upgrading their community. How people felt about their community was reflected in names people gave to the different wards that made up Old Naledi: “ Mashwi le dinotshe (Land of milk and honey) and Kagiso (mutual sympathy).
“The care and affection people felt for their communities taught us a lesson that has been repeated almost every other project we have been asked to undertake in Africa.”
The Old Naledi project was feted as a great success and was adopted as a model for similar upgrading projects in Selibe-Phikwe and Francistown. For generations people here have savored the predictable cadences of small town living.
They knew their neighbors and their neighbor’s neighbors. And they knew that most outsiders would drive right through this blue collar community of ramshackle houses and dusty streets, without stopping or settling, on their way to bigger, busier places.
Then Zimbabwean immigrants started streaming in, pushed by the collapse of the Zimbabwean economy and lured by stories of streets paved with diamonds and lots of piece jobs.
The newcomers landed in a town with no street lights and residents who stared openly at foreigners in a shanty that was seeing its first wave of immigrants.
Today thousands of Zimbabwean immigrants both legal and illegal work in factories, homes and construction sites and live in neighborhoods that were once mostly Tswana speaking.
It is a profound change for this insular community where strangers have traditionally come from Botswana rural areas, not foreign countries.
The idyllic settlement left behind by the two starry eyed Canadian architects has now become a giant unregulated lodge where residents try to squeeze as many cardboard and plastic shacks as possible on their tiny plots to cash in on the influx of Zimbabwean immigrants.
A recent study of Old Naledi by Haas Consultants found that “of the existing 1704 residential plots only 42% have owners living on then plot…obviously Old Naledi is becoming an absentee landlord area.”
With the population explosion and the unregulated housing in the township, Old Naledi is now bursting at the seams. Ideally the population density in Old Naledi ought to be 67 people per hectare.
But with the current estimated population of 46 000 and an area of 114ha, the current density is 403 people per hectare, six times more than the ideal.
“Close to 10500 households are dependent on 172 standpipes (i.e. 61 households per standpipe) The Haans Consultants report states that “obviously a negative feeling of attitude is emerging among the inhabitants towards their own community.
Streets which used to have names like Kagisong (at peace with each other) and Maswi le Dinotshe (Land of Milk and Honey) have now been rechristened Bulawayo, and Gweru after Zimbabwean cities.
Come dusk, Old Naledi bars and Sheebens are exploding with music, dagga, booze, sex and police patrol vans trolling for Zimbabwean illegal immigrants.
Supermarket and garment stores in and around Old Naledi complain that they have been hit by a spate of petty theft from Zimbabwean illigals A Zimbabwean single mother, Ushely Simon, who had no criminal record, was recently sentenced to three months in prison for stealing shoes from Cash Bazaar clothing store.
Simon said she was planning to sell the shoes and raise money to buy food for her daughter who was starving in Zimbabwe. Another Zimbabwean border jumper was arrested for stealing two polony sausages from a supermarket in Gaborone and hiding them in his underwear.
Enoch Churizeka who had gone for four days without food was nabbed by a security guard whose eye was caught by the unusually huge bulge on Churizeka’s pants. He called police officers who found Churizeka waiting for them because he was too hungry to run away. Most Zimbabwean border jumpers can not afford to pay the country’s huge legal fees.
Most end up in Kgosi Sebele’s court and others in a number of customary courts around the country. Customary court presiding officers with all their fancy titles and props are actually rather poorly prepared for the court cases they preside over.
All suspects tried and sentenced in customary courts have no legal representation. Recently, however, there have been suggestions that legal representation be permitted before these courts. The government rejected these suggestions.
The government’s position is stated in the Government Paper No3 of 1988 on the Report of the Presidential Commission on the judiciary as follows:
This recommendation is not adopted because the real problem in the Customary Court is that it is not proper to have professional lawyers arguing cases presided by lay persons.”
Local human rights lawyer, Duma Boko points out that: “The government’s position captures an interesting reality. Most, if not all, the presiding officers in customary courts have not had high school education.
A large number are in fact barely literate. These lay persons sit and determine the guilt or innocence of thousands of equally illiterate persons.
The presiding officers are expected to apply provisions of the Penal Code and other penal statutes. None of these statutes are written in vernacular language, Setswana, which is an official language in addition to English.”
Not surprising, Customary Courts are turning in higher conviction rates than the magistrate courts and the country’s high court.
In the Kweneng District, out of 2879 cases decided by all customary courts in the area, over a period of 12 months in 1998, there was not even a single acquittal. And this is the trend throughout the country.
Customary courts in the Ngwaketse District decided 1401 cases over 12 months during the same period and recorded a 100 percent conviction rate. Customary Courts in the North East District decided 476 cases for the whole year, and no one was acquitted.
The Selibe Phikwe case record also shows 906 under the “decided cases” column and 0 under the column that says “acquitted.”
Customary courts in the Borolong area decided 321 cases, recording zero acquittals and 321 convictions. Such figures, however, hardly ever make bar and cocktail party conversation pieces. Most Batswana have more harrowing stories to tell about the injustice of customary courts.
Veteran journalist, Mesh Moeti, likes to regale friends with the story of a customary court presiding officer who sentenced a villager to death for stealing a chicken.
The presiding officer, who was a hot tempered man and his court sessions a hot tempered affair, had run out of patience with the recidivist chicken thief. The chicken thief was however never executed. The case represents an extreme example of the customary court’s high handedness.
More commonplace cases involve people who are tried and convicted for crimes which do not exist in the country’s Penal Code.
Ten Zimbabwean prostitutes were recently sentenced to 12 months in jail by the Urban Customary Court in Gaborone after they were arrested by a Prostitution is not a criminal offence in Botswana, but Sebele argued that “it was time the courts took serious action against these people who are responsible for the spread of HIV\AIDS in Botswana.”
Customary court presiding officers, other government officers and the rest of Batswana may not agree on much, but their joint operating ethos too often boils down to an attitude of:
“Zimbabweans immigrants are a problem and something needs to be done about them.” Every evening, police and Botswana Defence Force trucks fan out of the city, trolling for Zimbabweans walking the city streets.
In fact, switched on Zimbabwean immigrants in Gaborone know that the sight of a blue and white police patrol van is a signal for all hell to break loose.
A Zimbabwean holiday maker, who was new in town was flogged and locked up in a police cell last Christmas because he did not run for cover at the sight of a police patrol van.
David Mbwende a banker in Zimbabwe was visiting a cousin in Gaborone and had accompanied him to a street corner where other Zimbabweans were touting for piece jobs.
As soon as a police patrol van veered in sight, the knot of piece job seekers scurried for cover leaving a perplexed Mbwende rooted to the spot.
“I had not done anything wrong so I found no reason to run and hide.” Mbwende was arrested, charged with idling and sentenced to five strokes on his butt or an eight year jail term.
Arraigned before Urban Customary Court President Dikwalo Monametsi, a bare footed Mbwende explained that: back home we don’t run away when we see police officers. I was surprised to see everyone running. I was never told to run when the police come.”
A shadow report by the Ditshwanelo Human Rights Organisation to the United Nations Committee on Elimination of Racial Discrimination presented earlier this year revealed that Zimbabweans are being hunted down and flushed out of some villages in Botswana like Oodi, Masunga and Tlokweng.
The Tlokweng tribal leader, Spokes Gaborone recently complained to the Sunday Standard that Zimbabwean prostitutes had turned Tlokweng village into a giant brothel.
In Oodi village, Zimbabweans are being labeled as criminals and many unemployed youths have volunteered to form vigilante groups to patrol the village.
According to the report by Ditshwanelo Human Rights group, “both organized and impromptu vigilante groups have a reputation for meting out street justice when apprehending suspected criminals.
This group is being accompanied by local police officers to stop villagers from meting out punishment to those they arrest during patrols.” Ditshwanelo further states that government has imposed “tougher more exclusionary policies” to control the influx of Zimbabweans into Botswana.”
