We are at funeral in a village in Botswana where close to two thousand people are gathered. A young man of about 32 years stands up and in the silence of the morning he utters insulting words (loud and clear) to the entire gathering, naming private body parts.
The crowd gapes in bewilderment.
In a press statement issued by the Attorney General on the issue of floggings earlier this year she sought to explain the law. The following scenario explains what takes place in everyday life of Botswana consistent with the law described by the Attorney General.
Firstly, the crowd at the funeral is supposed to call the police because no one must take the law into his own hands. As someone struggles to get hold of the police, the young man stands up again and utters more insults, this time accompanied by laughter.
The police finally arrive hours later after the funeral gathering has dispersed. Sometimes they will arrive the following day or never arrive at all. They arrest the young man and take him before the customary court the following Monday.
The kgosi then calls the case for registration and trial begins. At the commencement of trial the young man raises the usual objection. He tells the court that in terms of the customary courts act he applies to be tried at the magistrate’s court because he wants legal representation.
The customary court has no choice but to refer his case to the magistrate’s court to avoid being accused of denying this young man his right to legal representation. The case is finally transferred after some formalities. It is called for registration at the magistrates Court a few weeks later. Trial dates are fixed many months ahead.
In the meantime the police, as usual, alert the young man to the possibility of paying an admission of guilt fine of fifty pula. As the trial days approach the young man repeats the same insulting behaviour at various other fora.
Nobody touches him because they have been taught that the police must be called all the time. Shortly before trial date he attends at the police station, pays his 50 pula and the case is withdrawn. He goes around the village bragging to all that he can insult the whole community and get away with it.
He relates this story to a wealthy Arab Muslim man accompanied by a wealthy businessman from Germany. Both ask, what kind of a society is this which is held hostage to indignity by its own laws and legal system? He then answers, only a society walking on a cliff blindfolded. But hang on, there is worse I have done with a wealthy friend like yourselves.
Five years ago, we robbed an old man in this village off his farmland. We wanted to buy it. He refused. We nonetheless went ahead to build a warehouse on his land. He discovered the building two weeks after it had been constructed. He demanded that we remove the building. We refused and told him to go to court if he pleased.
We reminded him that he was not to take the law into his own hands under any circumstances because we would apply at Court to obtain an order, which the western laws called spoliation.
We thrust a letter upon him from our lawyers advising him of the same.
The following day we were summoned to the customary court in the village. When we got there we told the poor chief had no jurisdiction to hear the case because the value of the warehouse exceeded his jurisdiction.
The chief’s hands were tied.
We laughed at him and the old man as we walked away. We later heard that the old man approached a lawyer to help him fight his case in the high Court. The lawyer demanded a deposit of P10 000 before he could prepare any papers. He told the old man quite honestly that justice at the Court came at a price and part of the money to be paid was going to the government in the form of stamp revenue.
The old man had no such money.
The lawyer said hang on sir, but it is possible to represent yourself at Court. Here are the Court rules for you to read for yourself. The old man took them and said thank you son for being so kind.
As he opened the rules book and tries to read he saw that they were written in English. He could not read and write English. The old man then looked up at the lawyer and said but son isn’t this law for us Batswana? The lawyer answered “yes.” Where is the Setswana version of what you have just given me, asked the old man? None exists said the lawyer. At this point the Muslim man and German businessman looked at each other and in unison said but that’s the end of the road for the old man. The young man grinned and said yes that’s what I meant when I said we robbed an old man off his land in broad daylight with the help of the legal system.
We do it every day, he boasted.
Some years ago after this robbery, I happened to meet the same old man at a supermarket, said the young man. I told everyone present that this old man was a land thief. I laughed as he boiled inside with anger and frustration. He later filed a lawsuit for defamation at the high court with the help of legal aid. He thought finally he could get justice through legal aid. My friend and I received his summons. We laughed all the time when we met him asking him about the progress of his case. He got ill with frustration at the delays. He went to all government offices seeking intervention for a speedy resolution of his case. He was told the same thing all the time that these were the usual delays.
Two years after registration of his case and long before it could be heard he died of a heart attack. At this point the Arab Muslim and German businessman were blue with anger and shock.
The Arab Muslim asked what kind of justice is this. The young man answered, but I have already told you. It’s the justice of Botswana.
Is it for Batswana, asked the Arab Muslim?
Of course not ! interjected the German, before the young man could answer. I attended a High Court hearing the other day, he continued, where I was shocked to see everyone black but speaking English. The judge was wearing this funny white wig over his black face and sweating profusely under his black gowns. I couldn’t understand why everyone including the judge was subjecting themselves to the torture I saw.
It must be justice of the elites then, opined the Arab Muslim.
Your guess is as good as mine, said the young man, but those of us who have seen it for what it is do as we please and no ordinary Motswana can touch us. Their justice for Batswana is shut down under a tight lid by the colonial master.
The Arab Muslim snorted and said yes but if you were in my village we would have whipped you immediately for insulting your countrymen at a funeral and you would have known then that someone would deal with you if you robbed an old man of his land and if you insulted him in a supermarket because it is our culture and our culture does not take nonsense.
You would not have played these monkey tricks in Germany said the German.
I know, said the young man laughing, but we are not in Germany sir. We are in Tswa ÔÇô English Botswana, a country with a unique system of justice that does not work for the majority of its citizens and which promotes abuse of the decent by the indecent. I can insult both of you right now. I will pay fifty pula at the police station and get away with it. If you hit me, the police will hunt you down and hand you over to the Attorney General and DPP to prosecute and put you in jail.
The young man went ahead to name the private parts of these two gentlemen and laughed. They looked at each other and walked away.
Man is better with no law than an empty law of Man; for, with no law of Man, the only law shall be the law of God which carries the purity of nature itself.
“ KE NAKO !”