When a strike erupted at the University of Botswana last month over unpaid allowances last, a student is alleged to have burnt the national flag. At this point, no solid evidence to back up such allegation has been produced but President Ian Khama has spoken out against the flag-burning in very strong terms.
The first to level such criticism was the Botswana Democratic Party’s Secretary General, Botsalo Ntuane, and Khama followed at a party event in Tsabong which happened shortly thereafter. In an odd twist, however, the police are unsure whether burning the national flag is a criminal offence.
Police spokesman, Assistant Commissioner Witness Bosija, says that investigations on the alleged flag-burning incident are ongoing. He adds that such investigations include legal determination of whether such action is a criminal offence. To an extent, this may have to do with the fact that this is first known incident of the national flag being burned in protest. The closest the law comes in illuminating this issue is through provisions in the Penal Code and the Emblems Act. Section 91 of the former puts the national flag on a four-item list of things whose desecration attracts criminal liability. The other three are “the Arms or Ensigns Armorial of Botswana”, “the Standard of the President of Botswana” (the president’s flag), and the National Anthem of Botswana.”
In one jurisdiction whose court judgements are globally influential largely on account of their wide and timeous publication, the issue was conclusively resolved 27 years ago. Perhaps the most fully-formed body of juristic opinion on flag-burning is that of the United States Supreme Court which, in 1989 – in the case of Texas versus Johnson – declared this act to be a constitutionally-protected form of free speech.
In protest of President Ronald Reagan’s administrative policies, a Texas man called Gregory Lee Johnson burned a flag outside the City Hall building in Dallas in 1984. At the time, the state of Texas had laws against flag desecration. Johnson was arrested, charged, tried and convicted whereupon he appealed to the Texas Court of Criminal Appeals which found in his favour. In turn, the state appealed to the nine-member Supreme Court which, as the highest in the land, is the equivalent of Botswana’s Court of Appeal. The opinion of the court was delivered by Justice William Brennan who was joined by five other justices while four justices dissented. Both sides advanced highly sophisticated legal reasoning but ultimately, appellate court decisions are essentially a numbers game. The score, as it were, means that it is the view of the winning side that matters. This explains why, in the US, the two main political parties are forever fighting over control of the court.
Brennan found that by burning the flag, Johnson was exercising his freedom of speech and that the act of burning itself qualified as speech in that an idea can be expressed through an activity. The judge said that by burning the flag, Johnson was “engaging in expressive conduct” which rises to the level of speech.
Anywhere in the world, there is a considerable amount of myth-making around the national flag which, admittedly, has practical value. The flag is supposed to represent the quite abstract ideas of nationhood and national unity. Brennan found that Johnson’s desecration of the flag did not endanger the flag’s representation of nationhood and national unity: “Nobody can suppose that this one gesture of an unknown man will change our nation’s attitude towards its flag.” Deflating an argument made by lawyers representing Texas, the judge said that any conclusion “that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries.” In another part of the judgement, he asserts that “the constitution supersedes any symbol.”
The decision applied to the Texas only and in reaction to the Johnson decision, Congress passed an anti-flag burning law (the Flag Protection Act) in the same year. That was to no avail because in 1990, the Supreme Court struck down this law as unconstitutional. In 2006, Congress revisited the issue by trying to amend the constitution to prohibit flag-burning. However, the effort failed by one vote in the Senate.
If, for argument’s sake, the Botswana police determine that the Penal Code attaches criminal liability to flag burning, identify and charge the culprit, the defence will cast the latter in Johnson’s mantle and repackage Brennan’s judgement for his case.
While it was ultimately unsuccessful in its effort to protect the national flag, the US Congress is at least keeping the issue front and centre of its legislative agenda. Not so in Botswana where a parliament controlled by Khama’s party has never addressed this subject. To be fair to BDP MPs though, the rotary-dial-telephone/Afro/audio-cassette generations that preceded the current Facebook one never even fathomed the idea of burning the flag.
Flag-disposal is an important aspect for countries which (like Botswana) may be desirous of prohibiting flag-burning. Brennan’s decision raises an interesting point which some of those want to prohibit flag-burning would do well to think long and hard about. What if one burns a flag as a means of disposing of it because it is dirty or torn? Did such person act criminally as well? To bring it closer home, this is certainly not the first time that someone has disposed of a flag by burning. When flags that fly from government offices reach the end of their useful life, there are instances when they are disposed of by burning. Admittedly, the context is different from that of the UB student but there is one important similarity: a flag was burnt and if that comes with criminal liability, then the groundsman who burns a flag to dispose of it is as guilty as the UB student. It is unclear how far the president can go but the Emblems Act gives him powers to “make regulations prohibiting, controlling or restricting the use of the Coat of Arms, the National Flag or the Presidential Standard or any device resembling the Coat of Arms, the National Flag or the Presidential Standard.”
So how do you protect a symbol that means a lot to some citizens? Brennan: “The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.” That could mean a long and unproductive debate while buntings of flags burn to ashes.
Following passage of Flag Protection Act, the US Congress developed precatory guidelines of how to dispose of the flag. In terms of those guidelines, the flag is to be folded in its customary manner; placed on a fire “fairly large and of sufficient intensity to ensure complete burning of the flag”; individual(s) disposing the flag are to come to attention, salute the flag, recite the Pledge of Allegiance and have a brief period of silent reflection; and, after the flag is completely consumed, the fire should then be safely extinguished and the ashes buried.
However, the police may yet have a catch-all law to fall back on. With Americans having kicked out the British and all their odious laws in 1776, Botswana is different from US in that the latter doesn’t have sedition law. There is legal analysis that the UB flag-burner can be charged under this law which is as broad as to criminalise just about everything that cannot fit in already existing statutory compartments.
