BILL FAILS TO ENSURE EQUAL RECOGNITION AND TREATMENT OF ALL ETHNIC GROUPS

DITSHWANELO -The Botswana Centre for Human Rights seeks to express serious concern at the lost opportunity for effective Constitutional review. The Constitutional (Amendment) Bill 2004 reflects the avoidance strategy with which The Balopi Commission Report of 2000 dealt with discrimination against certain ethnic groups.

In 2000, The Balopi Commission decided that, although ‘it was empowered to pronounce on the question of whether or not the three Sections (77,78 and 79) are discriminatory … (it did) not think that it was either necessary or wise to do so’. It was satisfied ‘that pronouncing on this question would serve no useful purpose’. One of the terms of reference required The Commission to ‘review sections 77, 78 and 79 and to seek a construction that would eliminate any interpretation (our emphasis) that renders the sections discriminatory’. The Commission was not given the responsibility of seeking a construction which would eliminate discrimination (our emphasis) itself.

The Amendment Bill is aimed at amending sections 77, 78 and 79 of the Constitution. It is based upon the recommendations of The Balopi Commission Report. It is not clear whether the aim of the Bill is to eliminate discrimination or to eliminate mere interpretation which renders the sections discriminatory.

The deletion of Section 14 (3)(c), which allows for the imposition of restrictions on the freedom of movement if it is ‘reasonably required for the protection of well-being of Bushmen’, does not remove discrimination against the Basarwa/San peoples. If the concern was limited to the change of the term ‘Bushmen’ which has acquired a derogatory meaning amongst some of our Southern African peoples, consultative processes with the affected communities, may have led to the use of an acceptable name. If the concern was to remove the restriction of the freedom of the movement ‘of persons who are not Bushmen’ and thus ensure equal treatment for all, this deletion has failed to do so. Such superficial equality masks the inequality, which can only be truly dealt with through a comprehensive and effective Constitutional review process, which ensures the inclusion of civil, political, economic, social and cultural rights. In 2003, following the announcement by President Mogae that the amendments were to make the Constitution ‘tribally neutral’, DITSHWANELO called for comprehensive reform of the law ‘within a human rights framework’.

The proposed ‘Ntlo ya Dikgosi’ is based on the existing structure of ‘major’ and ‘minor’ tribes. The new construction merely builds upon the foundation of the eight ‘major’ tribes and expands the size of the House of Chiefs from 15 to a maximum of 35 members. Membership comprises three categories. Eight (8) of the twelve members in one category are from the eight ‘major’ tribes and are to be persons who ‘for the time being perform(s) the functions of the office of Kgosi. In the second category, five (5) persons are to be Presidential appointees. The Bill does not explain why they are necessary and appointed by the President. To whom are they to be accountable and what is their role? In the third category, twenty (20) persons are to be selected from the regions by a Regional Electoral College chaired by a senior government official appointed and accountable to the Minister responsible for local government. The Electoral College comprises paid headmen and a Kgosi . The role of the Chairperson of the Electoral College will be critical in ensuring that democratic, transparent and accountable processes are followed in the interests of good governance.

The Bill has attempted to address mainly the language of discrimination without dealing with the underlying politics of discrimination inherent in related legislation. These include the Tribal Territories Act, Tribal Land Act and the Chieftainship Act. Without a comprehensive, consultative and participatory Constitutional review, which seeks to ensure that the Constitution is truly our national blueprint for guarding against discrimination, and inequality, discriminatory legislation and policies will continue to allow for unequal recognition and treatment of citizens of Botswana, on the basis of their ethnicity.

DITSHWANELO will continue to advocate for the rights and responsibilities of the marginalized and discriminated against, in order for their voices to be heard. This Amendment Bill fails to recognise and build on the inherent strength which lies in the diversity of opinions, cultures, languages, traditions and peoples in Botswana. Instead, the ‘window-dressing’ exercise has largely effected superficial changes, which can be interpreted as dealing with discrimination through ‘inclusion’ of those ethnic groups which have hitherto been excluded from governance. Until there is a thorough, consultative, participatory, process aimed at ensuring that the Constitution belongs to all Batswana through an effective Constitutional Review process, discrimination against certain ethnic groups will continue to be masked beneath the veneer of democracy in our country.

18 April 2005
Gaborone