The notion of human equality, and the correlative notion of discrimination are amongst the most interesting subjects in the study of human rights law. There is no better point to approach this subject than by reference to the South African example.
Apartheid became official policy in South Africa, in 1948. Racial discrimination had existed before, just as it continues to exist today. Past governments had practiced it but none had had the fortitude to officialise it. Apartheid gave racial discrimination and exploitation the force and effect of law and paved way for the legalisation of untold exploitation and misery.
One question we had to grapple with was with regards to whether human rights, including the right not to be discriminated against on the basis of colour, have “horizontal application”. Take “vertical application” to mean as between the state and the subject and “horizontal application” to mean as between subjects at a private level. There could be no doubt that vertically, apartheid no longer had a place in law and policy. Others argue, however, that apartheid has neither been outlawed nor obliterated by South Africa’s post liberal constitution.
They argue that it is still lawful within the sphere of private rights and has, in fact, simply receded to that secure space offered by private common law rights. There is nothing unlawful, they say, when someone holds racist views and practices racism within their private domain. That is the muddy confluence between constitutional and public law.
The subject came back to me this week as the debate raged on over utterances attributed to an opposition politician. The politician, we are told, submitted to a fully attentive public gathering that one of the dominant tribes in this country employs members of its subject tribe, as professional mourners, at its funerals. I wondered what it was about the tribe, Batswapong in particular, that commended them for such a personal and emotional service but that is besides the issue. I further wondered what it was about my people that made them so savage as to be incapable of grief so much as to hire other tribes to render them such a private service but again, that is beside the point. Aren’t there unemployed youth in GaMmaNagwato to do the job? My point is more on policy than the utterance. Or is it below them?
Some have urged that the debate be constrained to what the gentleman said and that he alone should take responsibility for his utterances. Others broadened it to the Constitution, arguing that the situation was exacerbated by a Constitution that entrenched tribalism. To be honest, I had trouble establishing the linkage. He neither represented Bangwato nor the state. But I do appreciate that for a people with legitimate grievances of domination, such an occasion provided a
For the record, it is true that the Botswana constitution institutionalises tribalism. By way of disclaimer, I am not from the so-called, minor tribes. You can rest assured, accordingly, that this is not a case our sour grapes as tribal bigots would jump to surmise. Those who have complained about Sections 77, 78 and 79 do have a point. There should be no major or minor tribes anymore than there should be a major or minor person. Tribes represent a collective and the constitutional entrenchment of tribal dominance feeds the egos of tribal bigots. I have wondered if there should be tribal references in the Constitution to begin with and whether tribes should not just remain social constructs. What investment does the state really have in the hierarchical arrangement of tribal formations and the geographical extent of their influence so as to consider that to be a matter of constitutional significance? Clearly, the present arrangement is antithetic to nation building.
We should not be discussing tribal equality at all. There should simply be no reference to tribes in our Constitution. A broadened Bogosi Act, should govern the indispensable subject of Chieftainship policed by a tribally neutral constitution. The entrenchment of tribal hierarchies in the Constitution serves simply to ensure that the so called minor tribes have no judicial recourse. We know from the Kgafela example that provisions of the constitution cannot be challenged for unconstitutionality.
And then you have tribalism at a private level. For a fact, there is no tribe that does not boast its fair share of jeering and sneering bigots. Each time I hear someone say, Bangwato are tribalistic, I just say “nonsense” and I look away. Bakalaka have many. So do Bakwena and Bangwaketse. There is hardly any tribe that doesn’t have its own Klu-Klax-Klan. The mistake we make is to suggest that such despicable characters represent the collective and therefore to recede into a tribal cocoon wherefore we emerge as unwitting and sometimes deliberate reverse tribal bigots. We must condemn tribalism at home and away.
Tribal identity should be exploited to showcase positive virtues that should define the member in their relations inter se and in their relations with other citizens. This is perhaps the point at which government is relevant. The status quo does not serve us any good.
But the path to reform must begin here. We must accept that we are in our own way, at least constitutionally, a tribal, apartheid state. A re chencheng.