University of Botswana Law Journal

FOREWORD

Editorial Team — 2022-03-30

CONSTITUTIONALISM IN BOTSWANA

Tinashe Madebwe — 2022-03-30

There is talk of constitutional reform, led by the incumbent President and the ruling party, in Botswana. This is to be celebrated considering that the resident and his party hold the sort of majority in parliament which would allow them to easily subvert the constitution if they chose. Importantly though, the approach to constitutional reform preferred by President and the ruling party centres on drafting a new constitution. Based on the fact that global experience with constitutional reform efforts, which have met with varied levels of success, have established that attaining constitutional reform fundamentally requires more than the turn to a new constitution, this paper argues that the key to attaining constitutional reform is securing a recommitment to constitutionalism. Following from this, the paper argues that rather than focusing on drafting a codified constitution in the Botswana context, which would take long, if their goal is to secure constitutional reform, the incumbent President and the ruling party are better served by recommitting to constitutionalism in easily attainable ways that include changes to policy and legislation.

THE HUMAN RIGHTS’ IMPLICATIONS OF NON-RATIFICATION OF AND RESERVATIONS TO THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Kenneth Asamoa Acheampong — 2022-03-30

The UN Convention on the Rights of Persons with Disabilities, 2006, (CRPD) opened the door to the enjoyment of human rights by persons living with disabilities in equal measure with the rest of humanity as mandated by the foundational International Bill of Human Rights (IBHR), viz. the Universal Declaration of Human Rights, 1948, and the two human rights Covenants of 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) and their Optional Protocols. This door had been nudged by the UN Declaration on the Rights of Mentally Retarded Persons, 1971, the UN Declaration on the Rights of Disabled Persons, 1975, and United Nations General Assembly’s declaration of the “UN Decade of Disabled Persons” from 1983 to 1992. However, the non-ratification of and reservations made to this Convention by some UN Member States appear to be steadily unsettling this door as they adversely impact on the Conventions’ guiding principles, such as the following: respect for inherent dignity and individual autonomy, including the freedom to make one’s own choices; non-discrimination; equality of opportunity; and full and effective participation and inclusion in society. This is the context in which this paper, from a theoretical perspective, interrogates the CRPD in a two-pronged approach. Firstly, it challenges UN Member States who are yet to ratify the CRPD to uphold their treaty obligation under the UN Charter, 1945, and the IBHR to encourage respect for human rights for all without discrimination; thus, the paper argues about the effects of lack of such non-ratification. Secondly, the paper critiques reservations made to the CRPD, which have the effect of defeating the object and purposes of the Convention and, thus, undermining international law and, more importantly, the dignity of persons with disabilities. Hence, the paper concludes by urging UN Member States yet to ratify the CRPD to do so and those who have attached reservations to their ratifications and which reservations dilute or obfuscate the Convention to renounce such reservations and, thereby, contribute to the maintenance of the integrity of the Convention and, thereby, the inherent dignity of persons with disabilities.

ASPECT OF BOTHO/UBUNTU IN BOTSWANA

Tshegofatso Mmamosadinyana Gareegope — 2022-03-30

The objective of this article is to interrogate the concept of Botho/Ubuntu in relation to Botswana and argue that it is more than just an ideology but a way of life for Botswana. It is noted that, there has been much debate on what Botho/Ubuntu is and where it can be found within the Nguni and Bantu speaking people. This article aims to add to such discussion and state that the concept of Botho/Ubuntu also exists in Botswana. In addition, such concept in Botswana is referred to as “Botho”. Botho in Botswana is a basis of various cultural expressions and forms part of the way of live of Batswana. This article will show how Botswana has integrated Botho into its national principle through including it in their national strategy outlined in Vision 2036. It will argue that Botswana needs to take lessons from South Africa and its incorporation of the concept of Botho/Ubuntu into their legal jurisprudence, and incorporate Botho into Botswana legal jurisprudence as well.

TAXING FOREIGNERS OUT OF THE REAL PROPERTY SECTOR IN BOTSWANA

Clement Ng’ong’ola — 2022-03-30

This is a commentary on changes to the law on transfer duty in Botswana brought about by the Transfer Duty (Amendment) Act of 2019. The most controversial aspect of the law was an increase in the rate of duty to be paid by non-citizens for all types of land to 30 per cent of the purchase price or value of the land, while the rate for citizens remained at 5 per cent. This was complimented by a raft of exemptions which significantly eroded the liability of citizens to pay transfer duty. This has the intended effect of discouraging acquisition of land by non-citizens, and confounding Botswana’s quest for foreign direct investment. The paper so contends. It also contends that naked discrimination against non-citizens in taxation matters would not be as easy to justify under the non-discrimination provisions of the Botswana Constitution as some might be tempted to think.

FLOOR CROSSING AND ELECTIVE OFFICE: FREEDOM OF CHOICE OR BETRAYAL OF TRUST? – THE CASE OF BOTSWANA

Tendekani E Malebeswa — 2022-03-30

The world over, countries are grappling with how they can improve their democratic, governance and electoral systems. One of the foremost problems confronting them, especially countries using the first-past-the-post electoral system, is floor crossing. This article examines the arguments advanced in favour of, and those against, floor crossing. It appears that floor crossing is a concern, and most prevalent, in developing countries which are nascent democracies. This article maintains that there should be a balance between the interests of the representative who wants to cross the floor and those of his or her erstwhile party, and the electorate. Such a balance can only be achieved if the electoral system allows a defector to relinquish his or her seat so that there is a fresh election which effectively rejects or endorses his or his defection.

DAMS, DISPLACEMENT, AND COMMUNAL COMPENSATION: A LESOTHO HIGHLANDS LEGAL CASE

Fiona Darroch — 2022-03-30

This article addresses the major problems created for people and communities who are displaced by the construction of large dams. We focus specifically on the Lesotho Highlands Water Project, (LHWP), one of the largest hydroelectric and water transfer projects of its kind in Africa. The LHWP was implemented in 1986, when a treaty was signed between Lesotho and South Africa to undertake a series of large-scale dams, reservoirs, transfer tunnels and related infrastructure, in a vast multi-phase scheme. LHWP Phase I ended in 2007, having received numerous awards for its engineering components. However, there were and there remain problems with Phase I, in terms of its failure to restore livelihoods of project-affected communities to the point where they were at the time of the first disturbance. Some 644 households were resettled during the course of Phase I, with some cash and in-kind compensation paid to those households. A total of 27,400 people were adversely affected by the project. However, while the project-affected people downstream of the two dams, Katse and Mohale, were promised communal compensation, they have yet to receive that compensation. The Lesotho Highlands Water Authority (LHDA) is now arguing that the downstream communities affected by the project should have development projects implemented for them in a top-down fashion by the Lesotho Highlands Development Project authorities. The communities, for their part, want to be paid the compensation that they were promised under the Treaty and the Order, and under the various compensation policies developed during the course of the project. We examine a legal case brought against the Lesotho Highlands Development Authority in the High Court of Lesotho by the Khabang Lejone Multipurpose Co-operative Society (CIV/APN/370/2012) which was heard on 21 July 2015 and a judgment delivered on 10 September 2015. The Lesotho Highlands Development Authority has complied only partially with the current order. After considerable delay, the Lesotho Highlands Development Authority (LHDA) complied with part of the court order by paying one third of the compensation owed for the years 2003 to 2012 as ordered by the court. The balance of the compensation due for this period was paid in late 2020. Payment of the annual amount owing for the years 2013 to today, has not yet been paid, apparently because of a change in payment policy adopted by the LHDA. This article considers the legality of such arbitrary changes in policy and the rights of the affected communities entitled to compensation. It concludes with some reflections on the nature of compensation, and it contemplates whether current legal structures for the administration of compensation in Lesotho are compliant with emerging legal norms and recommended international best practice.

ENHANCING THE PROTECTION OF MINORS FROM DEFILEMENT IN BOTSWANA: MERITS AND FLAWS OF THE LAW AND THE PROCESS

Baboki Jonathan Dambe — 2022-03-30

Adequate protection of minors from sexual exploitation by way of defilement should be the priority of every government. To this end, laws must be promulgated with the object of affording the required protection. The crafting of such laws is by no means an easy task. There are copious challenges that must be confronted in order to distil an effective law. These include deciding the appropriate age of consent by ensuring that all minors are protected whilst circumventing the pitfalls of criminalising non-exploitative sexual experimentation between adolescents. Moreover, there is the notable challenge of opting between making accommodations for the “mentally innocent” accused person by virtue of the mistake of age defence and rendering defilement a strict liability offence. Beyond the crafting of the laws, the criminal justice system must be sufficiently capacitated to achieve the effective prosecution of perpetrators of defilement. This entails the prosecution being fully alive to the elements of the offence and the nature of the evidence that is required to fruitfully prove the case against the accused person. On the other hand, judicial officers must be vigilant with respect to their duties in defilement cases principally where there is an unrepresented accused person. Any lapse in the system in this regard will regrettably result in the acquittal of persons who are otherwise guilty and this undercuts the protection that the law seeks to achieve. The essence of this paper is to assess the adequacy or otherwise of defilement laws in Botswana and the prosecution of defilement cases in light of the challenges highlighted above. Inspiration is drawn from how other jurisdictions have attempted to deal with the various challenges and recommendations are made in order to ensure that the protection of minors is enhanced and the object of the defilement laws is achieved.