IN THE summer of 2001, the Wayeyi tribe, through their now departed chief Shikati Calvin Keeme Diile Kamanakao I and their society, made an application to the High Court contending, amongst other things, that sections 77, 78 and 79 of the Constitution to be inconsistent with the fundamental rights provisions of sections 3 and 15 of the Constitution and, accordingly, null and void; alternatively that they were discriminatory on the basis of tribe contrary to sections 3 and 15; alternatively that they were unjustifiably discriminatory on the basis of tribe either expressly or by effect as they afforded preferential treatment to ex-officio members of the House of Chiefs to the exclusion of chiefs of other tribes.
This application was a ventilation of an injustice, a misnomer that had existed in Botswana since time immemorial, namely the unequal treatment of tribes. It was heard by a panel of three judges. The Wayeyi were fed up and could not tolerate this obscene position anymore. We may all know that subsequent thereto the High Court held that the founders of the Constitution did not make a ranking of rights in the constitution, nor did it (the Constitution) expressly confer the powers to rank rights on the High Court.
The Judges then stated that they do not think that such awesome powers as to rewrite the Constitution can be assumed to exist unless they are clearly and expressly granted by unambiguous language that it would require a clear provision to that effect before the High Court would assume powers of remaking the Constitution to its values.
The Constitution they said, was made with the values that the makers could conceive, find prudent and possible to include in the Constitution bearing in mind the circumstances then existing, also that if new values and any unfinished business require a place in the scheme of the Constitution, Parliament was the proper institution to adopt such values and legislate them into the Constitution. The representatives of the electorate, the court said, are better placed to judge what the country as a whole would require from time to time, and when it would be opportune to act. It is not for the court to do so. Rightfully they said this as in so doing they were in step with the age-old doctrine of separation of powers.
IT IS these days and historical events that precipitated the Balopi Commission, which brought into full swing a period of extensive national consultation, the Referendum and a Government White Paper with a full report to Parliament on the feelings of the peopling of Botswana. Tribes which were once marginalized by the very Constitution that swore to project them equally and conjunctively with the then so called principal tribes, were then through the amendment of the Constitution in particular Sections 77 to 79 granted their rightful standing as persons; citizens and dwellers of contemporary Botswana.
They were now constitutionally protected, but not only protected but also recognised as ‘tribes’ in terms of that fundamental law the Constitution. This meant that henceforth every man, woman and child was freer than ever. Free from the rot of tribal subjugation and inequality whether by law or actual practice which had hitherto hung above their heads. A real republic by all standards!
There appears to be a dark cloud approaching. There is a seeming rise of a purist movement of some sort sweeping at an alarming rate across our Republic. Some have called it cultural regeneration, some a cultural revival. This has manifested itself in a number of tribes which have now openly declared that they shall heretofore embark on a course to re-enact their age-old but lost traditional practices. The Bakgatla-Ba-Kgafela led the quest. It would appear that several tribal leaders then moved with envy announced their newly found call to ‘go back to their ways that existed before the advent of westernization of their people by modern avenues’. They started.
Courts, of course, have, as and when the occasion availed itself, tried to issue their word of caution with regard to some of these revivals whose end results and constituents seem to creep in and invade into the realm of people’s civil liberties one of such recent and memorable occasion was hinted in the case of Kgafela Kgafela and Others v The State, where the learned Justice Lesetedi questioned the powers of Mephato to punish and flog persons willy-nilly and later pronounced that the Mephato had no such powers let alone the institutional competence to do so.
These questions on the possibility of the erosion of civil liberties and freedoms are apposite. The Republic of Botswana was born on 30 September 1966 by virtue of the Botswana Independence Order, an instrument of the Sovereign Monarch who had legislative powers in respect of the then Bechuanaland Protectorate.
The new State was to be a living creature with a Constitution which contains all that was necessary for the new Republic to take its place amongst the civilised nations of the world. Under the Constitution the people of the new Republic were invested with fundamental rights and freedoms, a new citizenship of the new state by the provisions of Chapter III of that Constitution (now repealed and re-enacted in a separate statute).
The State was given institutions, including the legislature to make new laws and to make whatever changes (even to the Constitution) as were deemed necessary. The State was also endowed with the Executive to govern and the Judicature to adjudge cases. Further provision was made in connection with the finances of the State and how they should be utilised for the public good. The Constitution, by section 3 declared certain rights and freedoms as fundamental entitlements of the citizens and residents of Botswana.
We cannot overemphasise the importance of these rights as they make up the entitlement of our citizens; and the citizens are to enjoy them everyday of their lives; except to the extent that such rights may be curtailed in terms authorised by the Constitution or other valid laws deriving their authority from the Constitution. Therefore any activity that is to be undertaken in Botswana ought to be tested against the backdrop of factors I have just outlined. To suggest otherwise may be unwise as such will prove to be an Achilles heel to endeavors that intend to make ours a Constitutional Republic par excellence.
Perhaps one wonders why I bring up such an unconventional subject and take this walk into a terrain so capable of polarizing a whole nation. The recent and disturbing publication by the Regent of the Bangwato tribe Sediegeng Kgamane certainly warrants a comment. It is the one that will incense and provoke things now at rest. It has the dangerous potential of destabilizing the nation and reversing the efforts of generations in achieving the now commendable coexistence of multifarious tribes and tribal communities in Botswana. His remarks are hugely disturbing and are to say the least utterly degenerating.
Sometime at the beginning of this winter the Regent declared that Bangwato shall name age regiments, and shall in so doing draw from ‘the greater Gammangwato’ tribes and tribal communities or persons that were aforetime part of the Gammangwato District of old (now known as the Central District).
This to me is more than denigration of the highest order. It is belittling other tribes and it is tantamount to telling them that they still remain subject of the Bangwato tribe and have no separate existence of their own. This more than anything undermines the past decisions of our Courts that have since pronounced that there is in Botswana a wide spectrum of tribes and each with their own set rules and customs or each with their own customary law; which law shall be applied in Court through the aid of assessors in a proper cause.
One such case is the 1992 of Kabelo Matlho v Kweneng Land Board, where a tribesman alleged that he owned tribal land in terms of the Customary Law of Bakwena, and the Court in accordance with law enlisted the aid of assessors who confirmed to the Court then that indeed a tribesman can in certain circumstances become an owner of or privately own tribal land in terms of the law of their tribe.
The remarks by the Bangwato Regent further undermine our Constitutional scheme of things that grants universalism and strict autonomy to every tribe and tribal community resident and physically present in Botswana. His remarks that tribes which in pre-colonial times had their abode in their supposed territory, must, without talks of any sort join his tribe in its own cultural revival are with the greatest respect to him, insulting. They deserve the greatest word of caution: perhaps from the one at whose instance the regency was granted.
We should not lose sight as a nation let alone forget that notwithstanding that the fact that our President holds political office he is no longer chief of the Bangwato tribe. Khama is chief, he was crowned decades ago and clothed with the revered leopard skin and has never ceded his rights as one; it is in this capacity that he attended the coronation of Kgosi Kgolo Kgafela, it also in his capacity as chief that he anointed and clothed Kgafela with the mantle of chieftainship; that leopard skin of old. We only but wonder if the Chief of Bangwato shares the sentiments recently by the regent. His silence is deafening!
A FEW winters ago in 2002 when the remains of She John Madawu (o) Nswazwi VIII were repatriated from Jetjeni Zimbabwe, back to Botswana to be buried in his home village of Nswazwi, Khama, then Vice President was the key speaker; among his fortifying words was that the past is now behind us and buried, that past conflicts are water under the bridge; that we should forge forward as a nation in unison and in a fashion where all men are equal irrespective of their tribal affiliation and history.
This came as a what the Bible calls ‘balm of Gilead’ a healing aura to soothe hearts which had before then been grieving about the past and the seeming indifference of important and concerned people at their situation. Khama then truly laid to rest their past. He said to them exactly what they wanted to hear and refreshed their souls. A force of unification he was! Now an opportunity presents itself at Khama’s doorstep now as President, to take up the podium at one of his now famed Kgotla meetings and round the fire sessions and inform all and sundry that the words of the Regent are the words of the Regent and him alone; that since they run counter and offend our Constitutional ethos he does not share them.
Perhaps not in so brush a manner.
The President is expected to be the champion of the Constitution, it being the document that establishes not only the Republic but the very institutions he permeates and in some instances oversees. Needless to say that this is also in accordance with the sacred Oath of office that he took at the inaugural podium that his shall be amongst other things, to uphold the Constitution of the Republic of Botswana. This further, is the posture that Khama assumed soon after Mr. Gomolemo Motswaledi lost his mission to challenge presidential immunity and by extension President Khama in the Courts of law.
He painted himself as one willing to uphold the Constitution even to an extent of considering and amendment if Batswana so desire. Now, therefore, against this milieu any conduct that seems to offend the values contained in the Constitution must outrightly be condemned by him as unwelcome. Or rather he should let the nation know what his attitude to it all is. After all he is the Captain of the ship. This is the new Botswana and my hope is only that we not go back to the days when tribal subjugation was law, not even at the instance of the tribe in which the President is chief.
