Saturday, September 23, 2023

Selective tribal recognition legally and morally flawed

It is constitutionally undesirable and morally wrong for Botswana government to seek application for recognition from so-called minority tribes.

Following the amendment of sections 77, 78 and 79 of the Constitution, government decision to recognize two non-Setswana speaking tribes of Basubiya and Bayei while demanding the rest  to apply is legally flawed. The decision is a serious misnomer desiring immediate correction.

Section 15 of Botswana Constitution legally prohibits any form of discrimination. In terms of the section, the expression “discriminatory” means affording different treatment to different persons, attributable wholly or mainly to their descriptions by race, tribe, place of origin, political opinions, colour, creed or sex.

In an interview, social commentator Antony Ndulamo Morima emphasized that government missed an opportunity when it amended sections 77, 78 and 79 of the Constitution. The recognition of Basubiya and Bayei was effected long after  the Balopi Commission white paper recommendations.

“If the amendment had ensured that all tribes have their own paramount chief and no chief enters Ntlo Ya Dikgosi through elections (as is the case with minority tribes) tribal equality would have been established once and for all,” argued Morima.

He firmly holds the view that government missed a golden opportunity when it amended sections 77, 78 and 79 offering all Batswana tribal equality.

Morima views the decision requiring application to government as a serious and undesirable misnomer. Accordingly, there should be a clear and open criteria which if a tribe satisfies it should, by constitutional imperative, be automatically recognized. “In that case, an application will be unnecessary since a mere declaration would suffice”, Morima categorically emphasized.

He implores government to adopt a holistic approach on the issue once and for all. “Such a holistic approach would be making a constitutional amendment to ensure that all tribes have their own paramount chief and no chief enters Ntlo Ya Dikgosi through elections (as is the case with minority tribes, but enters it as a birth right by virtue of being his or her tribe’s paramount chief,” said Morima.

The social commentator adds that recognition of a tribe should be in terms of a criteria provided for in the Constitution or an Act of Parliament. It should not be done on a case by case basis following application since that may result in arbitrariness caused by such irrelevant considerations as political expediency. This is what has happened in the case of Basubiya and Bayei.

According to Morima’s view, it is unlawful because the parity principle requires that people or entities in the same or similar circumstances should be treated equally. “It is unconstitutional for one tribe to be recognized, while another tribe in the same or similar position is not. Such arbitrary action is against the principle of constitutionalism and the rule of law,” he stressed.

Unpacking what the amending of sections 77, 78 and 79 entailed, Morima said the answer is found in a briefing to Minority Rights Groups International by Professor Lydia Nyati-Ramahobo in her article entitled “Minority Tribes In Botswana: the Politics of Recognition” where she says;

“… The amended provisions (while expanding the membership of the House,) did nothing to end discrimination. Membership remains subject to a tree tie system consisting of the chief of the eight areas belonging to the Tswana tribes and of the four former Crown lands, five persons appointed by the President, and a maximum of twenty people selected by regional electoral colleges, who serve for five terms each.

The superficial nature of the constitutional amendments can be seen in section 78 (1). The amendments replace references to particular named Tswana tribes to those who are chiefs of particular areas. But the areas are still those dominated by Tswana chiefs. Thus, whilst less overtly discriminatory, the effect is still the same.


Similarly, on paper, it was a positive step to give the four minority-dominated former crown lands the option of nominating a permanent chief to the House, or to elect regional representatives for a five year term.

In practice, they elected representatives for a five year term, a less powerful position compared to having a recognized chief of equal status with the Tswana chief. Moreover, although it is positive that the 22 minority dominated regions were accorded the opportunity to elect a member to the House for a five year term, these members are not elected by the people in the region but by sub-chiefs and headmen who belong to that region.

This system is still open to Tswana control as the sub-chiefs and headmen are supervised by the Tswana chief. The tribes in the twenty-two regions also continue to unrecognized under the Constitution. Therefore, although the House of Chiefs has expanded under the new provisions from 15 to a maximum of 37 after the Constitutional amendments, there still remains no recognition of any other ethnic group besides the usual Tswana tribes…”

A University of Botswana law lecturer Patrick Gunda who is of Kalanga descent finds it discriminatory to refer to some tribes as minority while some are recognized as paramount. 

He is of the view that in the present day of civilization, it is wrong to view other tribes as minor and questions the grounds considered for legal justification bereft of discrimination.

“Constitutionally speaking would you view one tribe as superior to the other… It is archaic and very rustic to do so”.

Gunda explained that “one would have thought sections 77, 78, and 79 amendment were meant to indicate some balance between the so-called paramount tribes. His view is that this has not been achieved through the amendment.

“I wonder why government says “minority tribes” should apply for recognition.”

Buttressing his view, he said he considers it an insult to his existence as a proud Nkalanga. He wonders what standards would be applied were he to apply for recognition and be so judged.

In conclusion he implores government to simply repeal anything and everything in the Constitution which leaves an inference of superiority of some tribes over others.

For as long as the discrimination remains, civil society and progressive political parties should never shy away from unequivocally condemning the discrepancy to ensure attainment of that tribal inequality  as a fundamental human right that should never be violated in a democratic society that Botswana is acclaimed for in the international arena.


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