CONSTITUTIONAL AMENDMENT FALLS SHORT OF TRIBAL

C O N F I D E N T I A L GABORONE 000600 SIPDIS DEPT FOR AF/S DIFFILY E.O. 12958: DECL: 05/01/2015 TAGS: PHUM PGOV BC SUBJECT: CONSTITUTIONAL AMENDMENT FALLS SHORT OF TRIBAL EQUALITY REF: A. GABORONE 56 ¶B. GABORONE 162 Classified By: AMBASSADOR JOSEPH HUGGINS FOR REASONS 1.4 B AND D ¶1. (C) Summary: The GOB has proposed a so-called "tribal neutrality" bill that would amend Botswana's constitution to broaden representation in the House of Chiefs, the largely symbolic second chamber of parliament through which traditional leaders advise the National Assembly. Well over a decade in coming, the amendment would do little to establish parity of status among various ethnic groups in that body. One controversial provision of the bill would empower the President to appoint five new members to the House of Chiefs. The amendment would also eliminate a clause that allowed the state to grant special access to "defined areas" for the San, on which the First People of the Kalahari has based its challenge to the GOB of their relocation from the Central Kalahari Game Reserve. This bill reflects two hallmarks of the ruling Botswana Democratic Party's approach to governance: promoting Botswana as a modern democracy based in part on the assimilation of marginalized communities into the mainstream of society and preserving and extending the power of the executive. End Summary. -------------- 17 YEARS COMING, 90 DAYS TO GO -------------- ¶2. (U) Botswana's National Assembly is considering a constitutional amendment nominally aimed at establishing "tribal neutrality" regarding representation of Botswana's various tribes in the House of Chiefs, the largely symbolic second chamber of parliament that advises the National Assembly. The context of the issue is the historical status of the Setswana-speaking clusters -- the Bamangwato, the Bangwaketse, the Bakwena, the Bakgatla, the Batlokwa, the Bamalete, the Barolong, and the Batawana -- whom the British colonizers recognized as having paramount chiefs. First raised in Parliament in 1988, the proposal to make the constitution "tribally neutral" was the subject of a Presidential (Balopi) Commission in 2000, the report of which generated a number of recommendations that inform the current amendment bill. Having completed a third reading in the National Assembly, the bill has entered a ninety-day waiting period for the purpose of further consultation. After ninety days, the bill will come before parliament again, at which time parliament could make amendments before voting on it. -------------- EXPANDED REPRESENTATION IN HOUSE OF CHIEFS -------------- ¶3. (U) The central provision of the bill would more than double the size of the House of Chiefs to 35 seats. The bill would retain the ex-officio seats for the eight so-called "major" Tswana tribes and four members from Chobe, Ghanzi, Kgalagadi and the Northeast who are elected by the traditional leaders in each area. It would add up to twenty members to be elected by an electoral college consisting of traditional leaders in each of twenty regions around the country and five members appointed by the President. ¶4. (U) While this change is likely to increase representation of non-Tswana groups in the House of Chiefs, that outcome is not guaranteed. Each of the twenty regions includes communities with various tribal affiliations, some Tswana and some not. Currently, when communities elect a headman, he must be approved by the paramount chief (a Tswana) over that area before he becomes eligible for a salary. These paid headmen would constitute the electoral college in each region, chaired by a "senior government official appointed by the Minister responsible for local government", which would elect a representative to the House of Chiefs. In contrast, the paramount chiefs of the eight dominant Tswana tribes are guaranteed seats in the House of Chiefs SIPDIS although their constituencies are also ethnically diverse. -------------- --- HOUSE OF CHIEFS REJECTS PRESIDENTIAL APPOINTMENT -------------- --- ¶5. (C) After deliberations on the amendment bill, the House of Chiefs rejected the provision allowing the President to appoint five new members. In a conversation with PolOff, Chairman of the House of Chiefs Kgosi Seepapitso expressed his colleagues' "suspicion" when they discovered the addition of this provision to the bill. (This provision was not in the previous incarnation of the bill which died when the President dissolved the eighth parliament in preparation for elections in October 2004.) Kgosi Seepapitso feared that the President would use this power to reward partisan cronies in the same way that he used nominations for specially elected Members of Parliament and appointments to local councils (REF A). ¶6. (C) Kgosi Seepapitso admitted that the Government can "take or leave" the advice of the chiefs, but asserted that they leave it "at their peril." Chiefs, he said, can mobilize their constituents against politicians who have defied their wishes. If the amendment passes and the chiefs disapprove of the President's appointments to the House, a new rift could emerge in the foundation of the Botswana Democratic Party's power base, alienating some traditional leaders from the ruling party. -------------- ELIMINATING SPECIAL TREATMENT FOR THE SAN -------------- ¶7. (U) One of the most controversial aspects of the constitutional amendment bill is its deletion of Section 14, Subsection 3, Paragraph C. This clause granted the Government the right to restrict entry to and residence within "defined areas" for "persons who are not Bushmen" in order to ensure "the protection or well- being of the Bushmen." (Note: Many now consider 'Bushmen' a pejorative term. The words 'San' or 'Basarwa' are generally used instead. End Note.) First People of the Kalahari, a San organization, released a statement criticizing the Government's intention to amend the constitution by removing a clause upon which its legal challenge of their relocation from the Central Kalahari Game Reserve (CKGR) is based (REF B). The Government has been at pains to emphasize that the repeal of Section 14.3.C would not be retroactive and, therefore, would not impact the outcome of their case. Furthermore, the Government argued that it never established defined areas in which only San could reside. (Note: Non-San, particularly Bakgaladi, lived within the CKGR and no law or regulation limited access to the CKGR exclusively to the San. End Note.) ¶8. (U) The Government interpreted Section 14.3.C as discriminatory and contrary to national unity. A contact at the Office of the President indicated that in addition to its objection to the term "Bushmen", the GOB found the special treatment of a specific group discriminatory to all other Batswana. The Government cannot limit the access of San or any other citizens from any other region in order to safeguard the interests of its existing residents, he observed, so why do so for the San? By eliminating this clause, he concluded, the GOB intended to uphold the principle of tribal equality. According to the GOB, Section 14.3.C reflected a concept of protection contrary to its policy of integrating remote area dwellers into the rest of society. -------------- OPPOSITION, NGOS NOT SATISFIED -------------- ¶9. (U) Opposition politicians and human rights organizations have denounced the bill as failing to address the problem of tribal inequality. RETENG, a Botswana NGO that has championed the rights of minority ethnic groups, pointed out that the bill does nothing to address the lack of mother-tongue education, communal group land rights, or Government recognition of chiefs for non-Tswana minorities. An April 18 press release by Ditshwanelo, the Botswana Center for Human Rights, lamented that the amendment ignored the existence of racial discrimination against the San. The Chair of the UN Committee on the Elimination of Racial Discrimination expressed its view that the bill fails to accord equal representation for ethnic groups which are subordinate to a dominant tribe. Government Ministers have acknowledged that this bill is "imperfect" but describe it as a viable compromise that represents a step in the right direction. -------------- COMMENT -------------- ¶10. (SBU) Expansion of the House of Chiefs is a welcome development insofar as it is likely to increase representation of minorities in that body. The amendment bill does not change the fact, however, that certain tribes (the eight Tswana tribes) are guaranteed a seat in the House and others (non-Tswana tribes) are not. ¶11. (SBU) Contrary to allegations by Survival International, the proposed amendment would not subvert or circumvent the judicial process with regard to the case of the First People of the Kalahari against the GOB. Since Section 14.3.C was part of the constitution when the relocation occurred, the judges will evaluate whether that policy violated the constitution as it existed at that time. Moreover, this clause did not guarantee the San access to the CKGR. It did, however, imply the need for the Government to protect the interests of this marginalized minority by securing their access to land. Repealing this clause signifies the Government's rejection of the argument that preserving the rights of the San requires the recognition of the CKGR as a San homeland. Instead, it reflects the Government's proclaimed strategy of overcoming poverty among the San by assimilating them into the mainstream of Botswana society rather than insulating them geographically, economically and culturally. HUGGINS NNNN