Legacy of Festus Mogae: Pursuing the course
In Part 2 of this series, we focused on Festus Gontebanye Mogae’s rise to power and explained how he dealt with some of the immediate challenges that faced the nation during his tenure. The one thing that stands out as Mogae’s enduring legacy was his relentless pursuit of inclusivity as his contribution towards the intricate process of nation-building in Botswana. This is not to discount the contribution of his predecessors towards building a nation united with its diverse cultures and languages.
According to the Oxford Dictionary, inclusivity is “the practice or policy of providing equal access to opportunities and resources for people who might otherwise be excluded or marginalized, such as those having physical or intellectual disabilities or belonging to other minority groups”. Perhaps, largely owing to his liberal values, Mogae extolled the virtues of inclusiveness on multiple fronts including ethnicity and gender – at a social political level, but also economic empowerment for citizens in general. He used the bully-pulpit of the highest office in the land to promote inclusivity in his endeavor to achieve equity pertaining to access to opportunities and allocation of resources for all.
Mogae’s first signal towards his commitment to fostering inclusivity came in 1999. Just over a year after he was inaugurated as the third president of the Republic, he declared a State of Emergency on September 2, 1999 relating to that year’s general elections. The effect of the state of emergency was to empower the President to reconstitute Parliament so that the electoral law could be amended to allow more eligible voters to vote. It was the first time that a state of emergency was declared in Botswana. He obviously did that with trepidation because state of emergencies in Africa are often associated with authoritarian regimes.
The 1999 elections were the first conducted under the auspices of the Independent Electoral Commission (IEC) which was created in 1997 as the new elections management body. Mogae himself, had served as Supervisor of elections before in his capacity as Permanent Secretary to the President, and was familiar with the electoral laws of the country.
He declared the state of emergency because over 66,000 eligible voters, who registered in the last supplementary registration exercise, could not vote in that year’s elections slated for October since their names did not appear on the voters’ roll by the time the President issued the writ of elections. By that time parliament was already dissolved. Parliament was the only body that had the power to amend the electoral law to accommodate those voters on the roll.
On September 6, 1999 parliament was reconstituted to amend the electoral law, and thus made it possible for the 66,000 voters to vote. Mogae was maligned by the Opposition and the press for the state of emergency but he maintained that it was the right thing to do under the circumstances otherwise many Batswana would be disenfranchised.
At the level of the party, it was under Mogae’s leadership that a more democratic and inclusive method of nominating candidates for council and parliamentary seats was introduced in the BDP. In fact, no party at the time conducted primary elections. Previously the BDP appointed candidates by means of an electoral college. Because only a few members or delegates were responsible for electing party candidates under the electoral college system the process was prone to bias and manipulation.
In was in 2003 that Bulela Ditswe, an open political contest, which is in stark contrast to the previous exclusionary electoral college system was introduced. Bulela Ditswe meaningfully opened up the selection process to all party members, and thus gave previously disenfranchised members power by allowing them to vote directly for their chosen candidates. Although fraught with problems, as has been demonstrated since its inception, with some disgruntled losing candidates leaving the party to stand as independents, Bulela Ditswe has without doubt democratised BDP elections as there is mass participation. The system has also deepened the party’s fledgling internal democracy.
At a societal level Mogae championed women participation and inclusion at all levels of human endeavour in Botswana. His administration strove to remove legal obstacles that, not only obstructed the full integration of women in the development process, but also put women in a position of inferiority and subordination.
Addressing the first session of the 9th Parliament, in 2004, Mogae said: “It will be the critical task of this Parliament to complete the process of eliminating all other laws which may discriminate on the basis of gender and /or tribe.” Mogae believed that the country could not realise it’s full potential when half of it, being females, was not enjoying equal rights to opportunities as their male counterparts. To this end his administration embarked on a systematic process of reviewing legislation that entrenched inequalities and reinforced the oppression of women.
The 1980’s and 1990’s were characterised by heightened mobilization by women groups for repeal of legislation and eradication of cultural practices that disadvantaged them. This campaign gained momentum following the Fourth World Conference on Women held in Beijing, China in 1995. Here in Botswana, the women’s movement was emboldened by the legal victory of former justice Unity Dow, who in 1990, initiated an action at the High Court challenging the constitutionality of sections 4 and 5 of the Citizenship Act which denied Botswana citizenship to any child born within a marriage if, at the time of birth, the father was not a citizen of Botswana.
Dow argued that the Act violated her right to equal protection of the law and protection from discrimination based on sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. She further challenged section 15 of the Act which gave preferential treatment to the alien spouses of Batswana men, reducing their requirements for naturalization. Dow argued that these provisions of the Act deny women the fundamental rights and freedoms which are guaranteed under the Botswana Constitution.
In its judgment the High Court agreed with Dow that the Citizenship Act, as was, was discriminatory based on gender. The Court of Appeal upheld the High Court’s decision that Unity Dow had been denied her rights to equal treatment of the law and freedom of movement, as a result of section 4 of the Citizenship Act. The Court further held that custom and tradition must yield to the Constitution of Botswana, and that legislation should be interpreted in a manner which is consistent with international standards of human rights. Thus, section 4 of the Citizenship Act was declared ultra vires the Constitution and section 15 of the Constitution had to be interpreted to prohibit discrimination on the basis of sex.
By holding the Citizenship Act of 1984 unconstitutional, the landmark judgement of the Court of Appeal made a powerful statement supporting gender equality and the norms established by the international community. It gave constitutional protection not only to women, but to all persons in Botswana. Consequent to that ruling the Citizenship Amendment Act (1995) was gazetted on September 15, of that year.
The Mogae administration added impetus to this reform agenda. Several laws, which negatively impacted on the status of women, were amended. Legislative and policy measures that were undertaken included amending the Affiliation Proceedings Act in 1999 to make it possible for a person other than the mother to institute proceedings under the Act; Public Service Act in 2000 to recognise sexual harassment as misconduct; and enactment of the Abolition of Marital Power Act in 2004, where the common law
principle of marital power was replaced with the principle of equality of spouses married in community of property.
It was in that context that, in his last State of the Nation Address in 2007, Mogae said, “During my administration, advances have been made through the review of laws that discriminated against women in order to ensure, that they participate fully in our economy. We have, in particular, sought to strengthen the economic security of women in such areas as land, property, inheritance rights, employment and access to credit and markets”.
In 2003 the UNDP placed Botswana, alongside Canada, as number 16 in the world in terms of the percentage of women, 35 percent, occupying leadership positions in both the public and private sectors. This placed Botswana above all of the countries in western and northern Europe. The same UNDP Report further stated that 52 percent of those employed in the country in professional and technical fields were women. By 2007 female representation in senior decision-making positions in the public sector stood at 41 percent. The figure incorporates all positions at “D” scale and above, including the Attorney General, Director of Public Prosecutions (DPP), permanent secretaries and heads of department and parastatals as well as ambassadors and high commissioners.
Mogae was consistent with his messaging that women should be given equal opportunity as their male counterparts and participate in a meaningful way in the development of the country. Speaking at the Botswana Tribal Administration Service Association (BTASA) function, in 2005, he said, “As traditional leaders in a changing society, I encourage you to lead in the national efforts to correct those aspects of our culture that are in conflict with our objectives of achieving a democratic, just and united society. In that regard, I urge you to support the government’s current efforts by ensuring that where our tradition and culture assign women a subordinate role, those practices are done away with… It would be a travesty of justice if the nation that has benefited so much from exemplary service by our women continued to regard them as junior rather than equal partners to men.”
Mogae was concerned that although women were active in party politics, and in some cases the “king makers”, that was not reflected in public office in terms of representation in parliament and local government. Addressing the Emang Basadi Conference on Electoral Reforms, in 2006, Mogae said, “I expect this conference to come up with ideas of how we can improve the representation of women in parliament and the councils… As it is there are no obstacles to voting by women. Why then do they not elect more women representatives? Why?”
In the same breath, Mogae challenged the women of Botswana: “As far as appointments are concerned, I have done my duty: half the permanent secretaries are women, the Attorney General is a woman, the Governor of Bank of Botswana is a woman, the Director of Public Prosecutions is a woman, almost half of the government lawyers are women… Five of the seven women elected to parliament have been appointed ministers. Of the remaining two, one has been appointed Chief Whip of the ruling party, and the other elected as the Deputy Speaker (for the first time in the history of the country). What have you, the women of Botswana, done? Why have you not elected women MPs?”
If Mogae was let down by women’s failure to vote for others in their numbers in 2004, they doubled down in 2009. In her autobiography, Madam Speaker, Sir! former minister Margaret Nasha, says of that year’s general elections, “During the 9th Parliament, which ran from 2004 to 2009, we had seven female MPs. We worked hard, with the hope of increasing the number to