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Botswana’s tribal equality: 20 years after the Balopi Commission and Kamanakao case II)

Publishing Date : 04 February, 2020

Ndulamo Anthony Morima
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Last week, we made an exposition of the circumstances leading to the Balopi Commission (“the Commission”)’s establishment and its terms of reference and recommendations.


We also made an exposition of the Kamanakao I case, giving a summary of the issues which were before court; the submissions by the parties and the court’s decision.This week, we shall make a critique of Botswana’s tribal equality, considering the extent to which government has implemented the recommendations of the Commission.

The Commission’s terms of reference were threefold, namely "(a) to review sections 77, 78, and 79 of the Constitution of Botswana and to seek a construction that would eliminate any interpretation that renders the sections discriminatory; (b) to review and propose the most effective method of selecting members of the "Ntlo ya Dikgosi" House of Chiefs; and (c) to propose and recommend measures to enhance the efficiency and effectiveness of the House of Chiefs.”


As stated before, one of the Commission’s recommendations was that even if sections 77, 78 and 79 are not unfair, they, and any other mention of a specific tribe, should be removed from the Constitution due to the citizens' perception that they are discriminatory. The Constitution of Botswana (“the Constitution”) was indeed amended to give effect to this recommendation. Prior to the amendment, section 77(1) provided for a House of Chiefs consisting of eight ex-officio Members; four Elected Members; and three Specially Elected Members.


Section 77(1)(a), as amended, established Ntlo ya Dikgosi in place of the House of Chiefs as per the Commission’s recommendation. It also provides for the composition of Ntlo ya Dikgosi. While this constitutional amendment must be commended for establishing Ntlo ya Dikgosi and broadening its composition to cover all geographic regions in the country, it must be condemned for mentioning specific tribes by name and not mentioning others.


The Commission had specifically recommended that in order to address citizens' perception that sections 77,78 and 79 are discriminatory, mention of a specific tribe should be removed from the Constitution or anywhere else it appears. Interestingly, there is mention of all the tribes except those that had been complaining of marginalisation, namely Basubiya, Wayeyi, Bakalanga, Basarwa, Bakgalagadi, Baherero, Bambukushu, etc.


Basubiya and Wayeyi are subsumed under Chobe and Goo Tawana respectively. Bakalanga, Basarwa and Bakgalagadi are subsumed under North East District, Ghanzi District and Kgalagadi District respectively.  Section 77(1) (b), as amended, provides for five persons who shall be appointed by the President. This is another malady because it allows for the politicisation of Bogosi. Like every politician, the President is likely to appoint those who are aligned to his political party.


Section 77(1) (c), as amended, provides for such number of persons, not being more than 20, as may be selected under section 78(4)(c) of the Constitution. Section 78(4) (c) of the Constitution provides that members from Ghanzi, Chobe, Kgalagadi and North East shall not be designated to Ntlo ya Dikgosi according to the established norms and practices of those areas.


It is only Bamangwato, Bakwena, Bangwaketse, Batawana, Batlokwa, Bakgatla, Barolong and Balete who have the right to designate their Dikgosi according their established norms and practices. This implies that the other tribes have no norms and practices worthy of designating their own Kgosi. Because Basarwa, Bakgalagadi, Basubiya and Bakalanga are not bestowed with the right to designate their Dikgosi according to their own established norms and practices, they, in terms of section 78, as amended,  select a Member to Ntlo ya Dikgosi by election or in such other manner as the Regional Electoral College may agree. Invariably, such selection is done through elections.


In this way, they, in my view, select a regional representative rather than a Kgosi. Not only does this lower the tribes’status; it also increases the chances of politicisation of Bogosi because where votes count, politics invariably creeps in. The second recommendation of the Commission was that the word "chief" in the Constitution, a remnant of the British monarchy, should be replaced with the word Kgosi. This has been implemented.


On 30th April 2008, the Bogosi Act, Cap. 41:01 (hereinafter referred to as the Bogosi Act) came into effect. Through section 29, the Bogosi Act repealed the Chieftainship Act, Cap. 41:01 which was blamed by many for being the enabler for tribalism. The Bogosi Act replaced the word "chief"  with the word “ HYPERLINK "https://en.wikipedia.org/wiki/Kgosi" o "Kgosi" Kgosi” as recommended.  


The third recommendation of the Commission was that the House of Chiefs of Botswana should continue to exist as it represents the country's unity, and it should be renamed Ntlo ya Dikgosi.Indeed, the House of Chiefs has been retained and renamed Ntlo ya Dikgosi. Sections 77, 78 and 79 of the Constitution, as amended, regulate the establishment and composition of Ntlo ya Dikgosi, designation and selection of Members to Ntlo ya Dikgosi and the qualifications for membership of Ntlo ya Dikgosi.


The fourth recommendation of the Commission was that the members of the House of Chiefs(now Ntlo ya Dikgosi) should not be allowed to join  "List of political parties in Botswana" political parties. This, too, has been implemented.Section 79 (4) of the Constitution, as amended, provides that “a Member of the Ntlo ya Dikgosi shall not, while he or she is such a Member, participate in party politics, but active participation in politics prior to being a Member of the Ntlo ya Dikgosi shall not bar any person from being such a Member.


The fifth recommendation of the Commission was that members of the House of Chiefs (now Ntlo ya Dikgosi) should be chosen based on tribal territorial claims, creating geographically based representation rather than the old method of specifying which tribes can have ex officio members in the House. As argued above, this has neither brought tribal parity nor ended the perception of tribal discrimination because, in essence, it is largely the so-called minority tribes who choose their representatives to Ntlo ya Dikgosi based on tribal territorial claims.


On the other hand, the so-called main tribes have their Dikgosi, who are Dikgosi by birth and whom they designate according to their own established norms and practices, as their representatives in Ntlo ya Dikgosi. Not only that. The so-called minority tribes are not allowed to designate their representatives to Ntlo ya Dikgosi according to their established norms and practices. This privilege is reserved for the so-called main tribes.


Of course, the aforesaid shortcomings notwithstanding, government has, through amending sections 77,78 and 79 of the Constitution, as well as repealing the Chieftainship Act and enacting the Bogosi Act, significantly moved Botswana towards tribal equality. In my view, legislative amendment needs to be made to make mention of all our tribes in the Constitution, the Bogosi Act and any other relevant legislation.


Also, legislative amendment needs to be made to provide for the same method for the designation of a Kgosi for all tribes. If designation is to be according to established norms and practices of a tribe, that should apply for all tribes. On the contrary, if designation is to be through elections, that should apply for all tribes. I am, however, hesitant to endorse this method for Dikgosi are born, not voted into office.


It is incontrovertible though that compared to the period before the amendment of sections 77,78 and 79 of the Constitution, and the repeal of the Chieftainship Act and enactment of the Bogosi Act, tribal equality has improved, and we have a more cohesive nation. This, in my view, is evidenced by the fact that such tribal pressure groups as Kamanakao Association, Special Promotion of Ikalanga Language and First People of the Kalahari are almost non-existent.  


Of course, especially during the heat of the 2019 general elections, the rivalry between former president Khama and President Masisi threatened to open the tribal wounds between Bangwato and other tribes, but such wounds have not festered beyond the elections.  

*Ndulamo Anthony Morima (LLM, LLB) is the Managing Partner of Morima Attorneys

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