Sunday, October 24, 2021

Ordinary Batswana have to obey law they don’t even know exist

Are the people who were charged in the National Petroleum Fund criminal case guilty or innocent? Well, it depends on what case number and month of the year you are referring to and who the presiding officer was.

In December last year, the Extension Two Magistrate’s Court freed all accused persons in the NPF criminal case on grounds that most of the 126 charges were “big, ambiguous and speculative.” Allegations made in the long-running case are that some P250 million was tricked out of the NPF for personal gain. The accused persons included the former and founding Director-General of the Directorate of Intelligence and Security Services, Colonel Isaac Kgosi; then Minister of Mineral Resources, Green Technology and Energy Security, Sadique Kebonang and his twin brother, High Court judge, Zein Kebonang; Director of Energy, Kenneth Kerekang; as well as investment manager Bakang Seretse. A month earlier, the Lobatse High Court had acquitted Kgosi and Kerekang of criminal charges brought against them in relation to the NPF case.

The case may have gone back to square one because another High Court judge, Justice Omphemetse Motumise, agrees with the state that indeed money was tricked out of the NPF. His judgement mentions Seretse and Kerekang. This was a civil (not criminal) matter, meaning that despite the accusatory language that Motumise uses in his judgement, Seretse and Kerekang cannot be said to be guilty. Only a criminal court can make such pronouncement – even then there is no guarantee that such court will reach the same conclusion as Motumise.

This legal morass is symptomatic of the perplexing nature of a legal system that Botswana inherited from an alien culture. Independence was supposed to mark a clean break with the past but the British ensured that the new order would continue to perpetuate the colonial legal culture. “Culture” is an important word and concept here because laws are the product of a people’s way of life. The latter is the reason why the principle of ignorance of the law is not an offence doesn’t make sense. Laws are a reflection of a people’s culture and it is ridiculous to expect anyone to know laws of a culture that they are part of. At a micro level, laws are also standards of decorum and it is as ridiculous to expect anyone to master decorum standards from another culture.

Laws are easier to obey when people understand them and customary law is a quite interesting contrast with common law. Those who are well-steeped in the indigenous culture of a specific tribe would certainly be indigenous law experts for such tribe. Conversely, even British people who know their culture very well don’t know enough about their own law. On the basis of the latter, you can well imagine how difficult it would be for a foreigner (an ordinary Motswana in this case) to understand and obey laws outside their culture. It is also clear that even in British society itself, common law was made (by the upper class) with intention of forcing the lower classes to behave in a certain way that is acceptable to them. These legal-behavioural standards were later exported to the colonies. That would explain why Botswana’s Penal Code criminalises farting in public – or “vitiating the air”, the Victorian upper-class term that the Code uses. It is quite common to smell or even hear an extroverted fart escape into the air at one too many public places in Botswana – especially gymnasiums. Doing this is a criminal offence. To be clear, we are unware of any case in which anyone was tried for vitiating the air but then that is because the police are not doing their job and not because doing so is not a criminal offence.

Perhaps the most objectionable thing about common law is that it priorities ritual over justice and reason – just ask Umbrella for Democratic Change supporters. Following the 2019 general election, which the UDC claims was rigged, some candidates challenged the results in court. However, they lost on a technicality, provoking outrage among the UDC ranks, some of whom were being introduced to the vagaries of common law. A trial at a customary court proceeds and is decided on the basis of common sense. On the other hand, a common law court fixates on technical elements and as in the UDC case, solid cases have been thrown out because a document has not been signed or some such triviality. There is actually a whole act that prescribes technical rules for courts.

Whereas some countries, like Brunei realigned and continue to realign their laws with their culture, Botswana’s laws remain largely cast in stone in terms of cultural character. In one of his works, James Kirby, an Australian historian, writes that Botswana’s constitutional foundations were aligned “with the needs of the white minority and in opposition to a notion of collective rights for Africans.” Indeed, the law is very clear on what should happen when common law – British law in more direct language – clashes with customary law: the former takes precedence. One outcome of this legal standard is that indigenous Batswana cannot use customary law to claim land that once belonged to their forbears.

In Setswana customary law, ruins of an old home or cattle kraal establish a form of lien over land that one previously occupied and can be used to validate claim to agricultural land. In Setswana, this law is expressed as “maruping go a beolwa, go sa boelweng ke maleng.” There are many such ruins in areas that were called “crown lands” during Britain’s colonial occupation of what it called the Bechuanaland Protectorate. Some of those ruins are now enclosed within farms that are owned by descendants of colonial settlers. Those who want to invoke the “maruping go a boelwa” law will face an insurmountable barrier: a British-origin bill of rights that was purposefully crafted to protect the property rights of colonial settlers.

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