Bad laws are the worst form of tyranny
Courts are accountable to the people- Prof Dingake The good of the people is the chief law
Former High Court Judge Professor Michael Dingake says Botswana is a republic and a constitutional democracy.
Section 1 of the Constitution of Botswana says: “Botswana is a sovereign republic” but according to Dingake, lawyers have to date not made much use of this constitutional provision in their litigation. According to Prof Dingake it is a loaded statement with far- reaching emancipatory potential.
“Botswana is a creature of law. A country comprising of land and people by that name would not exist if it was not for the law. Botswana’s name, land, people, and all other attributes that form a nation are spelt out in the constitution.
“The land upon which our beautiful country sits belongs to all of us – Batswana. The land does not own the people. We own the land. Our national anthem proclaims as much. The enormity of this statement I leave to you to ponder,” he said.
Prof Dingake who was speaking at BLLAHWU 50th Anniversary celebration in Gaborone stated that a constitutional democracy is underpinned by the rule of law. Judicial independence, he said is the cornerstone of the rule of law, without which it is futile to talk of a democracy.
According to him, judicial power is delegated to the courts by the people. He explained that it is therefore to the people that the courts are ultimately accountable. The lifeline of any judiciary is the confidence the people repose in it, he said adding that if the judiciary loses the confidence of the people, it loses the moral authority to exercise delegated judicial power. “Our democracy is underpinned by a constitution of yesteryear, which stands in urgent need of fundamental renewal – perhaps an overhaul is the correct word. And although the said constitution has served us well, it has glaring shortcomings, which include absence of any explicit reference to labour rights.
“At the dawn of a democratic dispensation, both government fidelity to the constitution and the independence of the judicial institutions were taken for granted.” Prof Dingake told the gathering that the law, especially the constitution, is important to any nation that aspires to be a true democracy. “A constitution is never cast in stone. Laws are made by the people for the people and to advance the welfare of the collective, the nation, not some people, at the exclusion of others. Bad laws do not respect equal citizenship as some people are more equal than others based on irrelevant grounds. “Bad laws are the worst form of tyranny. When constitutional lawyers speak of constitutionalism, they do not just speak of existence of laws, but good laws,” he indicated. Prof Dingake stated that the centrality of law is based on simple logic: the good of the people is the chief law. It follows from this premise therefore, that the search for a transformative and people- driven constitution should prompt workers to explore “the thinking behind the thinking” expressed in the letter of the law “that governs us, to see if the law is in fact made and applied to serve the good of the people.” “In economic terms we are a middle- upper income country. Economic disparities are quite pronounced and there is no living wage. Economic transformation has been slow, partly because of absence of meaningful economic diversification and declining revenue from minerals, particularly diamonds. “The emergence of Covid- 19 in 2020 exposed existing economic vulnerabilities. The economy’s dependence on a single commodity, diamonds, make it vulnerable to external shocks. Inequality remains amongst the highest in the world.
“Job creation is lagging and unemployment which stands at around 20.7 percent, according to some sources, is particularly pronounced amongst the young people,” Prof Digake observed.
He stated that addressing these challenges requires, amongst other things, the improvement of the overall business environment, improvement of wages and other conditions of work, improvement of essential services such as water, electricity, education, health, and social safety nets.
Botswana, he said, is perhaps one of the most unequal societies based on data from credible international institutions both in the overall distribution of wealth and income.