The purported democracy has a poor human rights record

| Friday February 4, 2011 00:00

FRANCISTOWN: Over the past decade or so, the government has lost many cases against individuals, organisations or groups of people.

The case between Kamanakao and the government immediately comes to mind. When bar owners challenged government's decision to reduce the number of their trading hours, the government defended its position in court but lost. After Kenneth Good's deportation in 2005 for being critical of the government, he appealed to the African Commission on Human and People's Rights. The former University of Botswana academic won.

In 2004, Basarwa successfully challenged their eviction from the Central Kgalagadi Game Reserve (GKGR) in the High Court and demanded the right to return to 'ancestral land.' More recently, the High Court granted Basarwa the right to re-commission the borehole at Mothomela in the CKGR and to even sink more boreholes the game reserve.

While the government had, in accordance with the earlier court ruling, allowed Basarwa to stay in the CKGR, Basarwa were neither given water by the government nor allowed to use existing boreholes.

While the Mogae vs Skelemani never went to court, it is reported that not less than P1 million were spent in the out-of-court settlement that resulted. When the Bar Owners' Association took the government to court after for reducing the number of trading hours of alcohol, the bar owners won with financial implications on the state.

Some of the cases might have had a negative impact on the reputation of the country; one regarded by many as a model of democracy and good governance. When ruling in favour of Good, the African Commission on Human and People's Rights cast serious aspersions on the genuineness of the Botswana democracy and respect for human rights. Botswana's immigration laws were found to be at variance with international human rights, putting the reputation of the country was at stake.

With respect to the two Basarwa cases, the government's commitment to justice was once again called into question. Nor were the actions of the government in evicting Basarwa from the CKGR and then denying them water after the court had declared them legal residents of the CKGR, consistent with the rule of law as well as the principles of dignity and compassion.

A former civil servant who prefers anonymity says that the government should always take advice from those employed to offer such. He says the government has the Attorney Generals' Chambers to advise it on legal issues. With respect to Basarwa in particular, he says the Botswana Government has never respected the rights of ordinary people, especially of the so-called minority tribes.

Regarding Professor Kenneth Good, the civil servant says because the laws are framed in a way that protects the interests of the government, it is easy for the likes of the eminent academic to be declared persona non grata.

Comparing the Good and Gomolemo Motswaledi cases, he says ceratin laws are designed to achieve the political agenda of those in power.

Motswaledi lost with costs the case in which he took President Ian Khama to court, challenging his powers to appoint BDP committees unilaterally. The court ruled that the President was immune from prosecution and ordered Motswaledi to pay all the legal costs.

Commenting on the President's powers to deport people without giving them the chance to defend themselves, attorney Morgan Moseki of MCM Moseki Attorneys says such laws are 'barbaric' as they are out of step with the principle of human rights. Moseki feels that the government should be objective when considering its position in a case and defend only when its chances of winning are high.

He accuses the government of bigotry, especially with respect to Basarwa. He says as a member of the United Nations and a signatory to the charter on indigenous people, Botswana is expected to give Basarwa a special dispensation and that the eviction of Basarwa by the government to settle them somewhere else against their will is not in consonance with the UN position on indigenous peoples. In his view, those who cost the taxpayer money by allowing unwinnable cases to go to court should be made to pay from their own pockets.

Attorney Themba Joina, who is also the President of MELS, says the ruling elite tends to push lawyers to do its bidding, adding that government lawyers are not allowed to be guided by their professional consciences. He says instead of wasting public funds loosing cases, the government must allow its lawyers the professional freedom to advise so that cases may be settled without going to court.

His view is that the government is too proud to admit that the outcome of a case might not be in its favour. Joina avers that the government has no respect for 'small people.' With respect to Basarwa, he says the government is compelled to take development to the indigenous people instead of evicting them. He casts aspersions on the government's resettlement policy, which he describes as condescending and paternalistic. Joina says under the BDP government, democracy is the exclusive preserve of the rich.

Veteran politician and father of Botswana politics, Motsamai Mpho, says the BDP government has a long record of intransigence and lack of respect for human rights. Mpho, who was one of the petitioners in the Kamanakao versus Government case, says although the government was directed by the court to amend the constitution, including the Chieftainship Act to make it tribally neutral, nothing has been done. To him, this is an illustration of the government's lack of respect for the rule of law.

In Mpho's view, a government that wastes national resources and ignores court rulings is not fit to rule. He says that the BDP is a 'chieftainship party' whose capacity to observe the rule of law is limited by an obsession with royalty.

The President of the Botswana Peoples' Party (BPP), Whyte Marobela, says the loss of cases by the government cannot be blamed on the government alone because it is mainly an indictment on the Attorney General's chambers. He suspects that the government might not be getting proper advice from this department, leaving the state to rely on its political instincts. The BPP leader says the trend where the government loses high profile cases and the financial implications involved warrant an investigation.

Former President of the Botswana Congress Party (BCP), Gilson Saleshando, says the problem with the Botswana's political leadership is that every one of its actions is motivated by politics. His view is that because the politicians themselves do not personally lose anything, they are likely to continue to ignore legal advice from government lawyers, to the detriment of national coffers. Saleshando says it a matter of some comfort that the judiciary has so far remained independent inspite of evident political pressure.

The Secretary General of the Botswana National Front (BNF), Akanyang Magama, says the government has wasted a lot of taxpayers' money in legal costs over the years. Magama says the government has a tendency to ratify international conventions just to create the impression in the international community that it is committed to the contents of those conventions when in actual fact it is not. He argues that it was the refusal by the government to actualise the conventions at home prompted Unity Dow in the 1990s, more recently Kamanakao and Basarwa, to take it to court. In all the three cases, the government lost.

University of Botswana (UB) lecturer in the Department of Languages, Dr Agreement Lathi Jotia, says it is never good for a government to have to be taken to court, especially on straightforward human rights issues. He says it becomes more curious if the concerned government claims to be liberal and humane. Jotia argues that in a multi-cultural set-up like Botswana's, the government is compelled to respect the cultural diversity of its communities.

Like Saleshando, he notes the point that the judiciary has thus far managed to remain fairly independent, adding that hopefully, the government will implement the recent court ruling on Basarwa and allow them access to water.