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

Publishing Date : 18 February, 2020

Ndulamo Anthony Morima

This is the last article in this three-part series. In the first article, 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. In the second article, we made a critique of Botswana’s tribal equality, considering the extent to which government has implemented the recommendations of the Commission.

As stated in that article, the Commission’s recommendations were implemented to a large extent through the amendment of sections 77, 78 and 79 of the Constitution of Botswana; the repeal of the Chieftainship Act, Cap. 41:01 and the enactment of the Bogosi Act, Cap. 41:01. Notable among the implemented recommendations are the establishment of Ntlo ya Dikgosi; the replacement of the word ‘Chief’ with ‘Kgosi’; the broadening of Ntlo ya Dikgosi’s composition to cover all geographic regions in the country, and the representation of minority tribes in Ntlo ya Dikgosi though that is by elected representatives and not ‘born Dikgosi’ as is the case with the eight tribes.

However, though the Commission had recommended that mention of a specific tribe should be removed from the Constitution or anywhere else it appears in order to address citizens' perception that sections 77,78 and 79 are discriminatory, that was not done.
The amended section 77 still mentions some of the eight tribes, but none of the minority tribes is mentioned. For instance, it mentions Ga Malete; Ga Mmangwato and Goo Tawana at subsections (1) (a) (iii); (1) (a) (iv) and (1) (a) (vi) respectively. It does not, for instance, make mention of Ku Bukalanga.  

Basubiya and Wayeyi, for instance, are subsumed under Chobe and Goo Tawana respectively. Bakalanga, Basarwa and Bakgalagadi are subsumed under North East District, Ghanzi District and Kgalagadi District respectively. Also, a revision of the recommendations was made in April 2002 through a government white paper titled ‘White Paper No.2 of 2002’ which opted to let the selection process for the House remain the same, allowing the eight Dikgosi of the main tribes to retain their posts, a move which the House of Chiefs itself approved.   

This week, we make a critique of Botswana’s tribal equality, considering the extent to which government has implemented the judgment of the Kamanakao I case per Nganunu C.J, Dibotelo J., and Dow J as they then were. The Kamanakao I case held that “without being designated a tribe under the Chieftainship Act, the Wayeyi and any other tribe could not have a chief and in these circumstances the Chieftainship Act did not afford the Applicants equal treatment and they therefore did not enjoy equal protection under that law as required by section 3(a) of the Constitution...”

It held further that “…the Respondent had not placed any special circumstances before the court that could justify the differentiation between tribe and tribe in Botswana which would bring the provisions of section 15(4)(e) into operation…” It also held that “…in defining ‘chief’ and ‘tribe’ under section 2 of the Chieftainship Act to refer only to eight tribes and not the applicants, the Act did not afford equal protection of the law to the Wayeyi and the Applicants and to that extent the Act was in conflict with section 3(a) of the Constitution and contravened the rights of the Applicants…”

The court also held that “… section 2 of the Chieftainship Act had to be amended in such a way as would remove the discrimination complained of and give equal treatment to all tribes under that Act. If other laws had to be amended to accord the Applicants this right then necessary action had to follow…” According to section 2 of the repealed Chieftainship Act, Cap.41:01, ‘tribe’ meant “… the Bamangwato Tribe, the Batawana Tribe, the Bakgatla Tribe, the Bakwena Tribe, the Bangwaketse Tribe, the Bamalete Tribe, the Barolong Tribe or the Batlokwa Tribe.”

In terms of section 2 of the repealed Chieftainship Act, Cap.41:01, ‘Chief’ was defined as “a Chief of one of the tribes and includes any regent thereof.” As has been stated earlier, the Chieftainship Act, Cap.41:01 was repealed by section 29 of the Bogosi Act, Cap.41:01. The Bogosi Act came into effect on 30th April 2008. In terms of section 2 of the Bogosi Act, the word ‘tribe’ now means “… any tribal community in existence and recognised as a tribe immediately before the commencement of this Act and includes such other tribal communities as may be so recognised under section 3.”

In terms of section 2 of the Bogosi Act, the word ‘Kgosi’, which has replaced the word ‘Chief’, means “…a person so designated by the tribe and recognised as such by the Minister under section 4.” Section 3 (1) of the Bogosi Act provides that “the Minister, after consulting a tribal community in its Kgotla, may recognise that tribal community as a tribe” Section 3 (2) provides that “… in deciding whether a tribal community shall be recognised as a tribe, the Minister shall take into account the history, origins, and organisational structure of the community, and any other relevant matters.”

In terms hereof, the word tribe no longer only refers to the eight tribes. Also, it is no longer only the eight tribes which have a kgosi.  All other tribal communities, including the so-called minority tribes, have the right to be recognised as a tribe, and to, therefore, have a kgosi, if their history, origins, organisational structure, and any other relevant matters warrant such recognition. In that regard, the court’s ruling was abided by. This, in my view, significantly removed the discrimination complained of and accorded equal treatment and protection of the law to the so-called minority tribes as required by section 3(a) of the Constitution.

The court also held that “…as to the orders which had to be made to give effect to the Applicants' requirements for orders to compel the government to appoint and recognise Wayeyi chiefs, their headmen and other traditional leaders and to give effect to the orders to introduce their language as a medium of instruction and their culture to be part of their school curriculum, the courts, as a matter of judicial policy, were reluctant to issue orders for the carrying out of works and other activities which required the courts' supervision…”

The court further held that  “…the order for the recognition of the first Applicant as chief of the Wayeyi had to fail as there was a dispute of facts which could not be resolved whether he could legitimately claim the chieftainship and by granting the relief the court would be second guessing the legislature as regards its response to the court's decision…’’ Of course, from a legal point of view and on the basis of judicial precedent, the court was right in refusing to grant the aforesaid two orders prayed for.  

But, obiter,  the court stated that “… its refusal to order as applied for was not an expression that the issues in the case had to be ignored: on the contrary there was an urgent requirement on the part of the government to attend to them lest they bedevilled the spirit of goodwill existing between the different tribes and communities in the country…”

In my view, constitutionalism and democracy would have been better served had government heeded the court’s statement above, especially with respect to the introduction of minority tribes’ languages as a medium of instruction in schools as well as mainstreaming minority tribes’ cultures in  the school curriculum though it was said obiter and had no binding effect.

No wonder in an Alternative Report submitted to the Human Rights Committee on the International Covenant on Civil and Political Rights (ICCPR) in May, 2007, RETENG: The Multicultural Coalition of Botswana wrote: “The amendments through Bill number 34 of 2005 were cosmetic and left the discrimination intact…”

The report continues to say “… The discrimination denies non-Tswana ethnic groups the following rights: a) group rights to land, b) representation in the House of Chiefs; c) the right to educate their children in their languages; c) the right to educate their children about their histories, customs, values and culture; d) the right to enjoy their languages and culture on national radio and television.” This view is supported by Francis B. Nyamnjoh in his journal article titled ‘Insiders and outsiders: citizenship and xenophobia in Southern Africa’.