Botswana was placed 4th out of 31 countries in the Sub-Saharan African Region in the World Justice Project Rule of Law Index for 2020 and was ranked 43 out of 128 countries.
The WJP Rule of Law Index measures rule of law performance in 128 countries and jurisdictions across eight primary factors: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice.
The Index is the world’s leading source for original, independent data on the rule of law. A persistent downward trend demonstrated by many countries was particularly pronounced in the Index factor measuring constraints on Government Powers. Botswana’s own rank on the Constraint on Government Powers factor was 39.
Notwithstanding, the country’s response to the Covid-19 pandemic has cast doubt over government’s exercise of its powers. Writing for Mmegi Online, Adam Mfundisi expresses a lack of confidence in the Botswanan government who, he notes, ‘has promised many reforms but to no avail.’ One such reform, on which his distrust of the government is premised, is the promise to end the State of Emergency that was declared in 2020 as a response to the Covid-19 pandemic. “At its inception,” he describes, “it lacked political consensus and coordination by all stakeholders.”
On the effects of the State of Emergency, he writes:
‘Corruption and maladministration have been witnessed perpetuated under the cover of SOE. Public officials have compromised transparency, openness and accountability willy-nilly. A top-down approach to decision-making has been adopted. The President and his henchmen/women have abrogated themselves supremacy in public policy making… Policy proposals and advice from opposition MPs and civil society have been rejected and ignored. The government and BDP to achieve political elite interests weaponised the COVID-19 pandemic. COVID-19 funds from both government and donations have been misused to pursue partisan interests. SOE allowed for direct appointments for procurement and tendering for goods and services.’
This undermining of the rule of law has perhaps been best demonstrated by the flagrant violation of Covid-19 protocols by Assistant Minister of Health and Wellness, Semotho Lelatisitswe who hosted guests at a family event amid regulations suspending all public gatherings. Although the Chief Whip of the BDP has condemned the violation of regulations by leaders and postulated strongly for equality before the law, legal action has not been taken against Lelatisitswe. Whether government officials are sanctioned for misconduct is one factor used by the WJP in determining a country’s rank on Constraints on Government Powers. Although Botswana has scored relatively high in this factor, the reality on the ground depicts a situation under which derogation from the rule of law – under the guise of a State of Emergency – is rife.
But it is not only the pandemic or its corollary State of Emergency within which poor governance persists and has devastating effects. According to the FUL Report, Khan lists poor governance as one of the factors contributing toward Botswana’s unsatisfactory social security rights framework. Rooted in ‘faulty institutional design,’ Botswana’s poor governance negatively impacts on the creation of effective policy, the implementation of social security programmes and the overall scheme of social security rights in the country. The Report makes mention of two developments related to issues influencing poor governance, both of which purport to curtail the abuse of public office by government officials.
The Report also provides brief analyses, with reference to case law, of several other developments related to the rule of law in Botswana. All of these developments turn on the principle of equality before the law and thus human dignity as an essential component guaranteeing such equality. As per the Report, the jurisprudence reflects the progressive development of the right to dignity, based on sexual orientation and gender. These developments, while significant, are not complete – as later references in the Report to gender equality and gender-based violence depict.
Similarly, still wanting in the Botswanan legal system are developments related to the abolition of the death penalty and to media freedom.
These and other matters related to the rule of law persist against the backdrop of a political landscape in Botswana that remains anything but arid.