Tshekedi Khama rebels against President Khama’s respect of law gimmick to mislead parliament

Tshekedi Khama
Tshekedi Khama

The popular image of a parliament is of a uniquely respected, honourable house, whose democratic legitimacy rests on some constitutional order.

As such, one expects exemplary decorum in the house. Sadly, the contrary is true with the current (11th) Parliament.

Arrogance, deceit, sheer dishonesty, lies, egos and all their overt manifestations lie at the heart of the Executive operational machinery. Ministers for instance, have developed big-headed contempt in their responses to questions from ordinary members of parliament. Comical retorts - “NO”, “that is in the public domain”, blah blah, - now possess supremacy in the house, in clear contrast to required decorum and principles of good governance. Sometimes it would be deliberate subterfuges and falsehoods as in the case of Hon Tshekedi Khama’s response to my own questions.

In his State of the Nation Address, the President assured the Nation of his abiding commitment to the rule of law. Fine words, but does his government apply them in practice?  Judging by the performance of his brother, the Minister of Environment, Wildlife and Tourism, it is a big NO.

To test the practicality of the President’s assertion, I asked Hon Khama simple but relevant questions: “if he is aware that two of the three judges in the Roy Sesana case ruled that the refusal to issue game licences to subsistence hunters in the Central Kalahari Game Reserve was a violation of their right to life under the constitution; if so:- (i) Why are the applicants still not allowed to hunt in the reserve and do not receive food rations; and (ii) how are they expected to feed themselves should they want to exercise their right to live in the reserve as per the Court’s ruling”.

In asking these questions, I had in mind an Executive Order signed by Hon Khama in January 2014 to make it illegal for any of us to hunt anywhere – unless, that is, we can afford the luxury of a private game farm or ranch.

This is because among the hardest hit by this Order are my constituents in the CKGR, who get no Government food rations and now face a stark dilemma. Should they obey the ban and watch their families go hungry, or should they defy it and risk arrest and imprisonment?

Remember that these are Basarwa whose legal right to live in the CKGR has been upheld by the High Court.

How can they exercise that legal right if they are not also allowed to feed themselves in the CKGR?  Through his response, the Minister implicitly acknowledged that they can’t.

He could only say that CKGR residents “have access to social safety nets including food rations outside the CKGR.” The Government’s version of the rule of law, in other words, is one which entitles it to tell its citizens that if they choose to exercise their hard won right to live in the place of their choice, they must also expect to starve. What kind of rule of law is that?

It gets worse. It is a fundamental principle of the rule of law that a Minister may exercise the powers conferred upon him by the National Assembly only within the limits that the Assembly has prescribed.

This is a crucial check on arbitrary government, but one which Minister Khama is apparently happy to ignore. Let me give a couple of other examples of the Minister’s indifference to the rule of law (and to rules generally). First, he claims to have imposed the ban under a power which the Wildlife Conservation Act has conferred upon him to “prohibit the hunting ... of any animals ... for periods not exceeding 12 months at a time.”

This followed four questions that I had the Minister to provide clarity on.

That is; (i) to state the order that introduced the hunting (ii) when the review will be undertaken; (iii) if public participation will be involved including the persons who will carry out the review; (iv) and if the findings of this review will be published for public consumption? 

The Act makes it very clear that a ban must not in any circumstances last for more than one year. Conversely, the Minister has certainly played lip service to this restriction on his power to the extent that a clause in his Order provides that the ban should be for only 12 months; but robs it of any effect by immediately going on to provide that this period “shall be reviewed on a yearly basis until the prohibition ... is lifted.”

In other words, the “prohibition” is not limited to 12 months at all, but will continue unless and until the Minister sees fit to lift it. 

This could be 5 years from now, or 10 years, or never. It was also clear from his responses that not only has the Minister not yet conducted any review, but that he does consider himself obliged to do so within any particular period. 

This, he told me, was because “the environment does not work on dates. So we might find that occasionally the environment changes and therefore we have to review exactly what we were doing or we postpone the delivery of the message due to unforeseen circumstances. So if the Honourable Member wants an exact date, he will not get an exact date from me.”

I had not wanted and did not ask for an exact date, but merely for confirmation that the Minister intended to comply with the terms of his own Order, and more importantly with the terms of the Wildlife Conservation Act.

I did not get this confirmation. On the contrary, I discovered that the Minister is just as willing to ignore the Order as he is to ignore the Act itself. 

So Minister Khama has assumed a power that the Wildlife Conservation Act has expressly said he is not to have, almost certainly because the Assembly wanted to avoid the very result that his ban has now produced: namely, to leave my constituents and many others in a state of total uncertainty as to whether and when they will ever be allowed to hunt for the pot again. 

Some may argue that such stringent measures are necessary to reverse the decline in our wildlife population, but I believe they are wrong on at least on two counts. First they overlook the fact that, however serious the threat to our wildlife, Minister Khama is not above the law. 

Once he or any other Minister comes to believe that he can flout the will of the National Assembly and get away with it, we are embarked on a dangerous course. What price then, is our reputation as a beacon of democracy in southern Africa?

Second, we don’t actually know how serious a threat subsistence hunters really pose to wildlife numbers or even if they pose a threat at all.  We don’t know because the issue has never been a subject of public debate. If the Minister had asked the National Assembly for authority to introduce a ban of indefinite duration, as he should have done, some of us would have wanted to test the scientific basis of his proposals.

In his answers to my questions the Minister relied upon a WWF report that wildlife populations globally have declined by 52%. But this report did not come out until 9 months after the ban was introduced, and measured the decline over a period of 40 years. 

It gave no figures for individual countries, and offered no opinion whether any part of the global decline should be attributed to subsistence hunters. The report appears to have regarded habitat loss and climate change, however, as far more important factors than hunting generally. 

The Government has admitted that it does not know itself whether subsistence hunting is a significant cause of the supposed decline in wildlife numbers.  Some of us would argue that, until it does, it is wrong to impose a ban that affects almost the entire country.

The Government ought at least to have come up with coherent scientific evidence that a ban was likely to cure the problem.  Only then could it have hoped to justify the real hardship that a ban is likely to cause large numbers of our most vulnerable people. 

We do not know whether the Minister has ever addressed these concerns, let alone satisfied them, because he has preferred to act behind closed doors. He has preferred to proceed by way of an executive order that he need not justify to anyone.

 * Noah Salakae, MP Ghanzi North

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