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The Botswana Gazette

1 May 2024

By: Bradley Fortuin

NB: While inspired by real emerging issues, the characters and events are fictional and are narrated to explore the theme of judicial independence and separation of powers.

In the centre of Southern Africa, we find one of the region’s most stable nations – Botswana. Having dominated the top spot in Africa for the respect of civil and political rights by global observers, the country has remained stable while protecting the rights of all people. Throughout time, all three branches of government have respected the rule of law and practised equity, equality and justice for all. This was soon to be tested.

In the recent elections, an aspiring Member of Parliament, Dr Thabo Sekoma, rose to popularity during his election campaign. Dr Sekoma was well known for quickly questioning any irregularities in legislation and practice. Dubbed ‘the people’s custodian,’ he had pledged to support every constituency member and ensure their rights continued to be respected per the Constitution.

Dr Sekoma especially found favour from vulnerable and marginalised groups. As predicted, he won the elections by a huge margin, leaving his opponents in the dust. Having secured his electoral votes, he was set to implement his mandate as a Member of Parliament and the newly appointed Ministry of Defence, Justice and Security.

The judiciary, a body setup to solve disagreements and interpret laws through court orders and rulings, is governed by the Constitution and the principles of equality, equity and justice. Both these bodies ideally must have the interest of the community at heart.

Shockwaves hit the nation on a chilly winter morning as news broke that Dr Sekoma intended to table a bill in Parliament that seeks to take away the liberties of women in Botswana. In its outline, the bill sought to declare that women in Botswana are inferior to men as per the Bible teaching; therefore, they are not eligible to take part in civil and democratic rights such as the rights to employment, voting, movement, access to sexual and reproductive healthcare, and even forming women’s rights associations.  This was a doomsday for the human rights and liberties of women in Botswana. The decision by the MP to table the bill comes as Botswana has been highly celebrated for adhering to court rulings that recognise and protect women. Botswana even ratified several regional and international human rights instruments, such as the Maputo Protocol, that protect women from inequality and discrimination.

This decision by the Minister of Defence, Justice and Security opposes the decisions of the courts, such as the Attorney General vs Unity Dow, a judgment which ensured that one cannot be discriminated against based on one’s sex, and the Ramantele v Mmusi and Others judgment, which ruled that women are definitely not second citizens. This further breaks the independence of the judiciary. Dr Sekoma further ignores several laws, such as the Employment Act, which prohibits discrimination based on sex and gender, and the Constitution, which declares that all people, regardless of sex, have the right to assembly, association, expression and movement. This proposed bill will eliminate efforts to protect women’s rights, if passed. The relationship between Parliament, the judiciary, and the public fundamentally is to protect the interest of all the people of a nation. Parliamentarians are elected through a democratic process by the people, or as I like to think of them, as individuals entrusted by a community to represent the people’s views, thoughts and ideas by creating or amending laws and policies that are in the best interest of their constituents.

Vulnerable groups
The judiciary, a body set up to solve disagreements and interpret laws through court orders and rulings, is governed by the Constitution and the principles of equality, equity and justice. Both these bodies ideally must have the interest of the community at heart. But what happens when this is not the case and MPs like Dr Sekoma go against these deals? What does this mean for the respect and recognition of the human rights of vulnerable groups? Are MPs intentionally undermining the judiciary?

In the quest for power and popularity fuelled by greed and disregard for women’s rights, Dr Sekoma pushes certain groups of society to become vulnerable, exposed and denied access to fundamental rights and freedoms. The story of Dr Sekoma shows how interfering and undermining the judiciary infringed on the rights and freedoms of women, as enshrined in the Constitution and affirmed by the courts. Ignoring the judiciary and introducing bills that go against court rulings by having Parliament vote on the rights of vulnerable minorities for political gain is a direct result of interfering with the role of the judiciary and undermining the independence of the courts.

Furthermore, the political interference trend in judicial proceedings undermines the integrity of the courts, thus resulting in low public participation and trust in the courts. Such actions strain the autonomy and commitment of the judiciary to ensure that the rights of those disregarded by Parliament are protected. Such foul play erodes the principles of independence, justice and liberty. When communities witness this, they cease to seek support from the courts, remaining at the mercy of oppressors and suppressive laws. The implications of these actions are far-reaching and affect the role of the judiciary, the meaning of independence and the protection of human rights.

*Bradley Fortuin is the Programme Officer at the Southern Africa Litigation Centre and a social justice activist. This article is part of the Ubuntu Podcast Series on Judicial Independence and Separation of Powers hosted by the Southern Africa Litigation Centre. You can listen to the episode here.