by By a correspondent, Botswana, November 1997
THEME = JUSTICE
Two key elements have influenced the course of Botswana's history.
The first is that the country has maintained the institution of the "Kgotla", a traditional gathering under the leadership of a chief, at which matters of public interest are discussed, debated and resolved by the entire village. Through this age-old form of government, decisions are reached by consensus, and a diversity of views are accommodated. This spirit has been maintained to our present day, and respected by all, including the educated elite, who, is most parts of Africa, have discarded everything traditional. Open consultations remain a distinct characteristic of Botswana society. The Kgotla, to a large extent, is the basis of judicial process in Botswana.
The second point is that the late Seretse Khama, although Paramount Chief of the powerful Bamangwato tribe, was married to Ruth, a British citizen whom many believed, exercised a great deal of influence over her husband, especially when it came to shaping Botswana's political course. Seretse Khama had studied in England and this exposure to the "British way of life", obviously had a bearing on decisions he was to take later on, during his political career. Especially the emphasis placed by the British on people's individual liberties. At the same time, Seretse Khama showed that he subscribed to the traditional spirit of the Kgotla.
When Independence came, the British left behind them a replica of the British system of government. One needs to keep in mind that Botswana was not a colony in the real sense of the word, but a Protectorate. On that account, the British had a "special relationship" with Botswana, which accounts for many of them remaining behind in Botswana after Independence. Indeed, apart from South Africa, Botswana probably has the highest number of naturalised citizens of European descent in Southern Africa. Some say that Europeans like to "stay on" because the country's economy is well run. Others link their heavy presence, to Botswana's general democratic set-up, in which peoples' rights and freedoms are respected and protected.
Like other aspects of Botswana society, the judiciary is imbued with a spirit of democracy, in which individuals and communities are able to seek their rights without undue encumbrances. Although the High Court Judges and the Chief Justice are appointed by the President, they have consistently demonstrated a commitment to the course of justice, rather than to the appointing authority.
Two cases of particular relevance and importance, show how the judiciary dealt with incidents involving the Media.
In the first case, a local newspaper, Mmegi, was sued by the government, for using information considered to be "classified" by the government. Legal correspondents say that this particular case was well-handled by the judiciary. A leading journalist, turned Public Relations Officer, Linchwe Kgaswe, said: "The onus lay on the State to prove its case and it failed dismally in this. So the High Court acquitted the newspaper accordingly".
A second case involved the Botswana Guardian, a privately- owned newspaper, which made allegations against five cabinet ministers, that they were planning a coup d'etat against President Quet Masire. Dubbed "The Big Five Case", the Ministers sued the paper and demanded hefty damages. The case was already being heard before the High Court, when the newspaper offered to settle the matter out of court. Commenting on the affair, Kgaswe says: "The newspaper did not provide a single shred of evidence suggesting that the so-called "Big Five", were planning a coup against President Masire. It is the responsibility of the Press to provide the public, or, in this case, the court, with facts, proof and evidence. If a member of a political party aspires to higher office, that does not constitute a coup. Indeed, if the Botswana Guardian had got its facts right, it would not have offered an out-of-court settlement".
Botswana's judiciary has, by and large, lived up to people's expectations. Truth to say, there has been no real opportunity to "test" the country's judicial system in the real sense of the word, although it is likely that when the time comes, the natural course of justice will take its course, given the country's spirit of democracy.
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