Is Botswana the Miracle of Africa: Democracy, the Rule of...

Is Botswana the Miracle of Africa? Democracy, the Rule of Law, and Human Rights Versus Economic

Development

Amelia Cook and Jeremy Sarkin**

I. BOTSWANA TODAY ..................................................................... 458

II. THE POLITICAL CONTEXT .......................................................... 460

III. THE ECONOMIC CONTEXT ......................................................... 461

IV. WHY BOTSWANA HAS PROSPERED ............................................ 463

V. BOTSWANA‘S LUCKY BREAK ...................................................... 466

VI. IS BOTSWANA A MIRACLE IN THE AFRICAN CONTEXT? .............. 471

A. Laws and Practice ............................................................ 474

B. Politics .............................................................................. 475

C. Criticism ........................................................................... 476

D. Civil Society and the Media ............................................. 477

E. Economic Issues ................................................................ 479

F. Minority Groups ............................................................... 480

G. Human Rights in General................................................ 481

H. HIV/AIDS ........................................................................ 485

I. Diversifying the Economy ................................................ 486

J. Unemployment .................................................................. 487

K. ―Negative Peace‖ ............................................................... 488

VII. CONCLUSION.............................................................................. 488

In November 2008, former President of Botswana, Festus Gontebanye

Mogae, received the Ibrahim Prize for Achievement in African Leadership.1

The Mo Ibrahim Foundation awards this prize to a democratically-elected

Editor of Publications for the Fares Center for Eastern Mediterranean Studies at Tufts

University.

** Distinguished Visiting Professor of Law, Hofstra University Law School 2008–2009.

1 Daniel Howden, Former Botswana President Wins Award, INDEP. (U.K.), Oct. 21, 2008,

available at http://www.independent.co.uk/news/world/africa/former-botswana-president-wins-

award-967692.html.

454 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 19:453

former African head of state who has served within the limits set by the

domestic constitution and has left office in the prior three years.2 The

Foundation assesses Sub-Saharan leaders on their exercise of leadership and

their country‘s performance during their term in office.3 It is the largest

annually-awarded prize in the world and consists of $5 million over ten years

and $200,000 annually thereafter for life.4 The Foundation also considers

granting an additional $200,000 per year for ten years to leaders who take on

public interest activities and espouse good causes.5 The citation notes that

former President Mogae won the award because, among other things:

[Botswana‘s] democracy was strong, stable and rooted in the

rule of law. Botswana was widely regarded as one of the more

effective countries in the world in combating corruption. . . .

President Mogae‘s outstanding leadership has ensured

Botswana‘s continued stability and prosperity in the face of

an HIV/AIDS pandemic which threatened the future of his

country and people. . . . The Prize Committee believes that

good governance requires an environment conducive to peace,

security and development, based on the rule of law and

respect for human rights. Botswana has had to address the

challenge of advancing each in a balanced way. This has been

helped by the independence and integrity of its institutions

which bodes well for further progress towards spreading

wealth and opportunity across all sectors of Botswana

society.6

The awarding of this prize to President Mogae offers a context in which to

evaluate whether Botswana deserves the oft-used moniker, ―the African

Miracle.‖7 The international community has long considered Botswana a

2 Mo Ibrahim Found., Terms of Reference for the Ibrahim Prize, http://www.moibrahimfounda

tion.org/en/termsofreference/the-ibrahim-prize/terms-of-reference.html (last visited Feb. 1, 2010).

3 Press Release, Mo Ibrahim Found., President Mogae Receives 2008 Ibrahim Prize for

Achievement in African Leadership (Nov. 15, 2008), available at http://www.moibrahim

foundation.org/en/pressrelease/media-centre/press-releases/president-mogae-gets-2008-ibrahim-

prize.html.

4 Howden, supra note 1.

5 Press Release, Mo Ibrahim Found., Festus Mogae Wins the Largest Prize in the World (Oct. 20,

2008), available at http://www.moibrahimfoundation.org/en/pressrelease/media-centre/press-rel

eases/festus-mogae-wins-the-largest-prize-in-the-world.html (click on ―Download Press Release‖

to access a PDF copy). The Prize Committee was comprised of Kofi Annan (Chairperson), Martti

Ahtisaari, Aïcha Bah Diallo, Mohamed ElBaradei, Mary Robinson, and Salim Ahmed Salim. Id.

6 Press Release, Mo Ibrahim Found., Citation of the Prize Committee of the Mo Ibrahim

Foundation (Oct. 20, 2008), available at http://www.moibrahimfoundation.org/en/media/get/2009

1002_2008-citation-english.pdf.

7 ABDI SAMATAR, AN AFRICAN MIRACLE: STATE AND CLASS LEADERSHIP AND COLONIAL LEGACY IN

BOTSWANA DEVELOPMENT passim (1999).

Spring 2010] IS BOTSWANA THE MIRACLE OF AFRICA? 455

success story on the African continent.8 Since achieving independence in

1966, it has maintained high economic growth, sound fiscal policies, and

regular elections, which have fed this image.9 However, this label of success

has led to inadequate questioning of what occurs beneath the façade in

Botswana. Inequality, discrimination, the dominance of a single political

party, the government‘s aversion to criticism, and an array of human rights

abuses are among the many problems afflicting Botswana.10 The country has

made especially slow progress toward improving many social and cultural

rights.11

Achievements such as Botswana‘s noteworthy economic growth, political

stability, and regular elections often eclipse issues like human rights, which

remain on the periphery of most analyses of Botswana. However, human

rights issues present a significant threat to Botswana‘s positive reputation.

One of these issues concerns the long and complicated relationship between a

minority ethnic group, the San,12 and the ruling elite, who mostly come from

the Tswana ethnic group.13 The ethnic division has led to the San‘s

vulnerable position in Batswana14 society today.15 No example better

demonstrates the limits of democracy in Botswana16 than the eviction by the

Government of Botswana (―GOB‖) of San bushmen from their homeland in

the Central Kalahari Game Reserve, presumably to further the exploration of

potential diamond mines.17 This controversy over land rights between the

San and the GOB has led to the longest and most expensive court case in the

8 See Anne Dissez, Botswana’s Good Reputation, 13 AFR. GEOPOLITICS 213, 213 (2004).

9 See KUSUM DATTA, DEMOCRACY AND ELECTIONS IN BOTSWANA: WITH SOME REFERENCE TO

GENERAL LITERATURE ON DEMOCRACY AND ELECTIONS IN AFRICA: BIBLIOGRAPHY (1991).

10 See KENNETH GOOD, BUSHMEN AND DIAMONDS: (UN)CIVIL SOCIETY IN BOTSWANA 6–8, 23 (2003)

(reviewing the limitations of Botswana‘s liberal democracy, violations against the rights of the

San, and issues of inequality and an undiversified economy).

11 U.S. DEP‘T OF STATE, 2006 COUNTRY REPORT ON HUMAN RIGHTS PRACTICES: BOTSWANA (2007),

available at http://www.state.gov/g/drl/rls/hrrpt/2006/78720.htm (last visited Sept. 17, 2009).

12 The San are also known as the ―Bushmen‖ or the Basarwa. See SIDSEL SAUGESTAD, THE

INCONVENIENT INDIGENOUS: REMOTE AREA DEVELOPMENT IN BOTSWANA, DONOR ASSISTANCE,

AND THE FIRST PEOPLE OF THE KALAHARI 28 (2001).

13 See infra notes 32, 36–37.

14 ―Batswana,‖ as opposed to ―Botswana,‖ refers to the people of Botswana.

15 GOOD, supra note 10, at 20–24.

16 See also David Sebudubudu & Bertha Z. Osei-Hwedie, Pitfalls of Parliamentary Democracy in

Botswana, 41 AFRIKA SPECTRUM 35, 35–53 (2006).

17 Ian Taylor & Gladys Mokhawa, Not Forever: Botswana, Conflict Diamonds and the Bushmen,

102 AFR. AFF. 261, 261–83 (2003), available at http://afraf.oxfordjournals.org/cgi/reprint/102/407/

261.


history of the country, known simply as the Central Kalahari Game Reserve

(―CKGR‖) case.18

The CKGR case serves as a reflection of the GOB‘s general failure to

uphold many of the basic tenets of human rights, especially in regard to

indigenous and otherwise marginalized groups. The case has finally begun to

draw international attention, however meager, to Botswana issues other than

its growth rate and the regularity of its elections.19 Potentially, it could pave

the way for more rigorous assessments of what it means to be a success story

in Africa. Although the San won the case,20 the government has not

cooperated in implementing the ruling,21 raising many questions about the

democratic process in Botswana. Furthermore, the ―win‖ has led to very few

changes to the San‘s position in society.22 This Article is less concerned,

however, with the CKGR case than with the question of Botswana‘s majority

group and its promotion and protection of democratic and human rights,

especially among minorities.

On the African continent, many argue that the need for economic growth

and political stability outweigh, at least in the short term, the need to ensure

proper compliance with international human rights law. This is supposedly

so because economic and political improvements are often predecessors to

advancements in human rights.23 In many ways, this stance is difficult to

refute. Creating a stable and thriving democracy is critically important to the

advancement of human rights.24 Economic growth is also important because

it can lead to improved education,25 which in turn can lead to improved

18 Sidsel Saugestad, Notes on the Outcome of the Ruling in the Central Kalahari Game Reserve

Case, Botswana, BEFORE FARMING, Mar. 2007, available at http://www.waspress.co.uk/journals/

beforefarming/journal_20064/news/2006_4_10.pdf.

19 Julie J. Taylor, Celebrating the San Victory Too Soon?, 23 ANTHROPOLOGY TODAY 3, 4 (2007),

available at http://www.chr.up.ac.za/indigenous/documents/Botswana/Cases/Celebrating%20too%

20soon%20CKGR%20Case.pdf.

20 Botswana Bushmen Win Land Ruling, BBC NEWS, Dec. 13, 2006, http://news.bbc.co.uk/2/

hi/africa/6174709.stm.

21 Lucia Van der Post, Bushwhacked, TIMES ONLINE (London), Sept. 19, 2007, http://www.times

online.co.uk/tol/news/world/africa/article2482706.ece.

22 Bushmen of the Kalahari, AM. CHRON., Feb. 28, 2009, http://www.americanchronicle.com/

articles/view/92720.

23 See Rhoda Howard, The Full-Belly Thesis: Should Economic Rights Take Priority over Civil

and Political Rights? Evidence from Sub-Saharan Africa, 5 HUM. RTS. Q. 467, 467–90 (1983); Neil

J. Mitchell & James M. McCormick, Economic and Political Explanations of Human Rights

Violations, 40 WORLD POL. 476, 476–98 (1988).

24 See Gizachew Tiruneh, Democratic Development in Botswana and Tunisia: A Comparative

Analysis, 22 J. CONTEMP. AFR. STUD. 13, 13–28 (2004).

25 See Imogen Mogosti, Technologies and Poverty Education: Pre-Conditions for Effectiveness, 17

PULA: BOTS. J. AFR. STUD. 35, 35–40 (2003).


livelihoods.26 When considering the state of affairs in many African countries,

such basic improvements in quality of life are invaluable. Yet the question

remains, when will it be time to confront longstanding violations of human

rights in countries that have already experienced economic growth, political

stability, and the establishment of a functioning democracy?

This Article investigates the claim that Botswana is the ―Miracle of

Africa‖ in the context of its political, economic, and human rights record. It

contextualizes the arguments and findings that scholars make today about

Botswana‘s success in achieving economic prosperity, political stability, and

sustained growth. This Article then compares these accounts to Botswana‘s

record in a number of other areas, including its treatment of marginalized

groups, especially the Batswana indigenous population. This Article inspects

the historical development of Botswana, the political and economic context of

the country, and Botswana‘s marked prosperity.

Part I introduces the general question under review: should modern-day

Botswana be regarded as the ―African Miracle?‖ Part II provides a brief

overview of the political situation in Botswana, and introduces the idea that

some of the country‘s achievements have come at the expense of fundamental

human rights. Part III reviews the economic context of the country. Part IV

examines why Botswana has been able to prosper to the extent that it has.

Part V, on the other hand, argues that some of Botswana‘s accomplishments

stem from elements of good fortune, including its unique colonial experience,

the discovery of diamonds shortly after independence, and the political

dominance of a single ethnic group.

Part VI investigates the ―Miracle‖ adage in more depth, noting

Botswana‘s successes while also exposing several problematic practices

related to governance and the marginalization of minority groups. It analyzes

the role of civil society and the media, as well as the extent to which they can

operate freely. Certain economic issues, including economic inequality, are

explored to lift the veil on the Botswana ―Miracle.‖ This Part reviews

Botswana‘s compliance with its international human rights obligations and

the extent to which it has enacted into domestic law the rights enshrined in

ratified international treaties. The findings of international human rights

treaty bodies on Botswana are also explored in this section. Additionally, the

section examines Botswana‘s stance on the death penalty, the situation in its

prisons, its HIV/AIDS epidemic, and the role of its national human rights

institutions. While certain elites benefit from Botswana‘s accomplishments,

many citizens have been excluded from and marginalized by them. This Part

assesses the cost of success at the expense of some Batswana citizens‘ human

rights. This Article concludes that other African countries can learn many

lessons from Botswana. However, Botswana must also diversify its economy,

deal with high rates of unemployment, especially among marginalized

26 See AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999).


groups, and take steps to address a number of human rights concerns in

order to function as an example for the rest of the continent.

I. BOTSWANA TODAY

The goal of this Article is not to diminish Botswana‘s successes, many of

which are highly commendable, but to explore those features of its democracy

that threaten Botswana‘s image and its ability to serve as an example for

other African nations. While the international community hails Botswana as

a beacon of democracy,27 several issues—especially those concerning human

rights28—threaten this adage. Since independence, the GOB has pursued a

policy of non-racialism with regard to Botswana‘s indigenous groups.29 This

policy has allowed it to violate the rights of many of the country‘s indigenous

and otherwise marginalized groups, placing them far outside the walls of

Botswana‘s ―Miracle‖ democracy.30 Not only do these groups have little means

of actively participating in the decision-making processes of government, but

many of their basic social, cultural, political, and economic rights are violated

consistently in pursuit of a non-racial, nationalist policy.31 In reality, this

policy simply supports the political, economic, and cultural status quo as

established by the dominant32 ethnic group, the Tswana.33 Although there are

many other ethnic groups living in Botswana, the Tswana have long-

dominated the political realm.34 As a result, not all of Botswana‘s people

benefit from the fruits of the country‘s successes; democracy and human

rights are protected for only so many in Botswana.35

27 GLORIA SOMOLEKAE, DEMOCRACY, CIVIL SOCIETY AND GOVERNANCE IN AFRICA: THE CASE OF

BOTSWANA 19 (1998), available at http://unpan1.un.org/intradoc/groups/public/documents/CAFR

AD/UNPAN 009287.pdf.

28 See Kenneth Good & Ian Taylor, Mounting Repression in Botswana, 96 ROUND TABLE 275,

275–78 (2007).

29 ―Non-racialism‖ refers to the GOB‘s policy of portraying Botswana as a non-racial, culturally

homogenous state, based—as it argues—on the dominance of a single ethnic group, the Tswana.

This has led to a lack of recognition for other, unique ethnic groups, like the San. SAUGESTAD,

supra note 12, at 28, 77.

30 Id. at 54.

31 Cf. Jacqueline Solway, Navigating the ―Neutral‖ State: ―Minority‖ Rights in Botswana, 28 J. S.

AFR. STUD. 711, 720 (2002) (stating that the groups‘ rights are continually marginalized, but

official acts fall short of rights violations).

32 Some researchers have concluded that the Tswana are not numerically dominant in Botswana,

but are politically dominant and succeeded in building the post-independence political system

around their culture and language. For more discussion, see Minority Rights Group Int‘l,

Minority Tribes in Botswana: The Politics of Recognition (2008) (prepared by Lydia Nyati-

Ramahobo), http:// www.minorityrights.org/download.php?id=622.

33 Solway, supra note 31, at 714.

34 AFRICANA: THE ENCYCLOPEDIA OF THE AFRICAN AND AFRICAN AMERICAN EXPERIENCE 1891

(Kwame Anthony Appiah & Henry Louis Gates, Jr. eds., 1999) [hereinafter AFRICANA].

35 Sebudubudu & Osei-Hwedie, supra note 16, at 35–53.


Common wisdom on the Botswana ―Miracle‖ suggests that the country

provides a model for others to follow.36 Others certainly can learn valuable

lessons from Botswana in many regards. The country‘s economic policies are

exemplary. The GOB has taken preventative measures to avoid ―Dutch

Disease;‖37 built a cushion of financial reserves to counter fluctuations in

international prices for primary exports and to strengthen its currency; taken

steps to anticipate future troubles, and relied on experts to plan responses to

possible disasters; historically focused on education; and avoided extreme

foreign debt.38 The regularity of Botswana‘s elections39 since gaining

independence in 1966 is commendable.40 Efforts to foster a sense of national

unity, especially by Botswana‘s first president, Sir Seretse Khama, proved

successful in many regards during the post-independence process of nation-

building and peace-keeping.41 Furthermore, Botswana has been fairly

successful in developing initiatives that protect the environment, especially

through the use of Community-Based Natural Resource Management, which

often focuses on combining eco-tourism, conservation, and the livelihoods of

indigenous groups.42 However, it would be a shame if other nations followed

the same path as Botswana, marked by sacrifices of basic human rights

tenets. Botswana‘s successes are, to a degree, the result of the hard work of

the country‘s leadership.43 They are also due, in significant measure, to good

36 Diamond Country, ECONOMIST, Apr. 4, 1998, available at http://www.highbeam.com/doc/1G1-

20486940.html.

37 See generally W.M. Corden, Booming Sector and Dutch Disease Economics: Survey and

Consolidation, 36 OXFORD ECON. PAPERS 359 (1994) (consolidating and reviewing the existing

body of literature on Dutch Disease and booming resources sectors, beginning with a core model

and extending to historical application). ―Dutch Disease,‖ also known as ―the resource curse,‖

refers to the phenomena of a boom in natural resources drawing enough foreign capital that the

value of the local currency is driven up and domestic goods are rendered less competitive. See

The Devil’s Excrement, ECONOMIST, May 22, 2003.

38 Stephen L. Lewis, Explaining Botswana’s Successes, in DEVELOPING CULTURES: CASE STUDIES

3, at 8, 16–17, 20–21 (Lawrence Harrison & Peter Berger eds., 2006).

39 Patrick P. Molutsi & John D. Holm, Developing Democracy When Civil Society Is Weak: The

Case of Botswana, 89 AFR. AFF. 323, 324 (1990).

40 But see Bertha Z. Osei-Hwedie & David Sebudubudu, Botswana’s 2004 Elections: Free and

Fair?, 4 J. AFR. ELECTIONS 27 (2005) (disputing the fairness of Botswana‘s elections).

41 Lewis, supra note 38, at 17.

42 Michael Taylor, CBNRM and Pastoral Development in Botswana: Implications for San Land

Rights 9, 11–12 (Dec. 1, 2006) (unpublished workshop submission, Oxford Univ. African Studies

Ctr.), available at http://www.chr.up.ac.za/indigenous/documents/Botswana/Report/CBNRM%20

San%20Land%20Rights.pdf.

43 Lewis, supra note 38, at 12.


fortune, including the country‘s unique Protectorate experience,44 perceived

homogeneity,45 and diamond resources.46

It is problematic that labels such as ―Africa‘s success story‖ or ―Africa‘s

miracle,‖47 based simply on national economic performance and political

stability, are so flippantly used to describe Botswana. Such labels give the

impression that as long as a country experiences economic growth and

regular elections, the protection of other basic human rights is not important.

A country that denies many basic human rights should not be regarded as

Africa‘s ―Miracle‖—such a definition of ―Miracle‖ sets the standard too low.

The African situation is not so wretched that the protection of human rights

is of no consequence. Africa‘s ―Miracle‖ should be a country working toward

addressing pitfalls, not shying away from them. Botswana is in a

comparatively advantageous position, having a 2008 per capita GDP of

$13,900, the fourth highest GDP per capita in Sub-Saharan Africa,48 and a

stable political environment in which to work. These advantages provide the

means to address many human rights issues.49 Thus, it cannot—should not—

be praised for settling for anything less.

II. THE POLITICAL CONTEXT

From 1885 to Botswana‘s independence in 1966, the country was the

British Protectorate of Bechuanaland.50 The British established the

Protectorate at the behest of two paramount chiefs—Khama and Setshele—

who were seeking protection from the Boers‘ imminent plans to expand

northwards from South Africa.51 As a Protectorate, Botswana suffered less

colonial intrusion than many of its neighboring countries, which European

nations ruled more bureaucratically as colonies.52

Since its independence from Great Britain, Botswana has maintained

functioning democratic institutions, good relations with its neighbors, and a

44 SAUGESTAD, supra note 12, at 97.

45 Balefi Tsie, The Role, Functions and Performance of Botswana’s Independent Electoral

Commission, 2 J. AFR. ELECTIONS 145, 151 (2003) [hereinafter Tsie, Botswana’s Independent

Electoral Commission].

46 Diamond Country, supra note 36.

47 SAMATAR, supra note 7, at iii.

48 CIA WORLD FACTBOOK: BOTSWANA, https://www.cia.gov/library/publications/the-world-fact

book/geos/bc.html (last visited Feb. 2, 2010) [hereinafter CIA WORLD FACTBOOK].

49 J. CLARK LEITH, WHY BOTSWANA PROSPERED 4 (2005).

50 AFRICANA, supra note 34, at 290.

51 Id.

52 SAUGESTAD, supra note 12, at 69–70.


flourishing economy.53 It is a parliamentary republic with a sound

institutional structure based on Roman-Dutch law and local customary law.54

Botswana has enjoyed free and fair elections every five years since 1966,

although a single political party, the Botswana Democratic Party (―BDP‖),

has dominated politics throughout this period.55 Opposition parties, including

the Botswana National Front and the Botswana People‘s Party (which

recently joined forces), as well as the Botswana Congress Party, have not

been able to present significant competition.56

The BDP‘s dominance has historical roots in Tswana elite‘s gradual

establishment within the country.57 The Tswana power base grew as the

group began to seize land and political control in the 1800s.58 Other ethnic

groups have never been powerful enough to unseat the Tswana, which

accounts, in part, for the historical lack of ethnic strife in Botswana that has

plagued so many African countries.59 Since independence, the Tswana have

marginalized and disempowered minorities, effectively preventing them from

mounting any possible resistance to the current Tswana-based power

structure.60

III. THE ECONOMIC CONTEXT

Economically, Botswana has performed very well since 1966, maintaining

one of the highest economic growth rates in the world.61 The Economist notes

that Botswana had the fastest growing income per person over the thirty-five

year period prior to 2002.62 Despite this high growth rate, 23.8 percent of the

population was unemployed in 2004.63 As a result, more than 47 percent of

53 See generally Lewis, supra note 38 (reviewing Botswana‘s achievements as well as the policies

that the author proposes helped Botswana secure these achievements).

54 CIA WORLD FACTBOOK, supra note 48.

55 GOOD, supra note 10, at 9.

56 Int‘l Found. for Electoral Sys., Election Guide, Election Profile for Botswana, http://

www.electionguide.org/election.php?ID=266 (last visited Feb. 1, 2010).

57 SAUGESTAD, supra note 12, at 70, 73.


59 James A. Robinson & Q. Neil Parsons, State Formation and Governance in Botswana, 15 J.

AFR. ECONOMIES 100, 134–35 (2006).

60 Press Release, Ditshwanelo: Bots. Ctr. for Human Rights, Statement Following a Workshop on

the Rights of Minority Groups (Feb. 15, 2006), available at http://www.ditshwanelo.org.bw/

feb15press.html.


62 The African Exception, ECONOMIST, Mar. 28, 2002, available at http://www.economist.com/

businessfinance/economicsfocus/displaystory.cfm?story_id=E1_TDVSPDP.



the population lived below the poverty line.64 Income disparities are among

the worst in the world.65

Diamonds have played a major role in the story of the ―African Miracle‖

over the course of the last forty years.66 In 1967, geologists from the mining

company De Beers discovered a kimberlite pipe67 slightly northeast of the

Central Kalahari Game Reserve in Orapa, near the Makgadikgadi Pans.68 De

Beers‘ discovery of these diamond resources provided Botswana, one of the

world‘s poorest countries at that time, an immense windfall.69 Since this

discovery, the diamond industry has been the cornerstone of the Botswana

economy.70 The government has maintained control of this resource by

creating Debswana, the national diamond company, which it owns in equal

partnership with global diamond giant De Beers.71 Without the discovery of

diamonds, it is unlikely that Botswana would have been able to prosper to

such an extent.72 After all, despite Botswana‘s good fortune in some areas,

the country is unlucky in many other areas: only 0.65 percent of its land is

arable;73 it is landlocked and thus has high transportation costs;74 it suffers

64 United Nations Development Programme [UNDP], Botswana, Anti-Poverty Projects,

http://www.unbotswana.org.bw/undp/ poverty.html (last visited Nov. 10, 2009). For a further

discussion of poverty eradication in Botswana, see also Kwaku Osei-Hwedie, Poverty Eradication

in Botswana: Towards the Realisation of Vision 2016, 18 PULA: BOTS. J. AFR. STUD. 1, 7–18

(2004).

65 Zibane Maundeni, The Politics of Poverty in Botswana, 35 BOTS. NOTES & REC. 99, 99–109

(2003); see also Happy K. Siphambe, Dimesions and Measures to Reduce Poverty in Botswana, 17

PULA: BOTS. J. AFR. STUD. 19, 19–25 (2003); UNDP, Human Development Report 2009: Gini

Index (2009), http://hdrstats.undp.org/en/indicators/161.html [hereinafter Gini Index]. The Gini

Index is a measure of national income inequalities. Id. Botswana is ranked fourth worst for

income inequality in the world. Id.

66 Robinson & Parsons, supra note 59, at 134.

67 A kimberlitic pipe is a primary diamond deposit found in volcanic rock. See Ralph Hazelton,

Diamonds: Forever or For Good?, in THE DIAMONDS AND HUMAN SECURITY PROJECT 2 (2002),

available at http://www.pacweb.org/Documents/diamonds_KP/3_diamonds_Forever_Eng_March

2002.pdf.

68 Debswana: History and Profile, http://www.debswana.com/Debswana.Web/About+Debswana/

History+and+Profile/ (under ―1955–1969,‖ follow the ―MORE...‖ link) (last visited Oct. 10, 2009)

[hereinafter Debswana].

69 Taylor & Mokhawa, supra note 17, at 262.



72 Ellen Hillbom, Diamonds or Development? A Structural Assessment of Botswana’s Forty Years

of Success, 46 J. MODERN AFR. STUD. 191, 201 (2008).


74 Hillbom, supra note 72, at 201.


from regular droughts;75 and it has limited potential substitutes for the role

diamonds play in its economy.76

IV. WHY BOTSWANA HAS PROSPERED

There are many reasons for Botswana‘s post-Protectorate success. Some

reasons stem from Botswana‘s unique history and context, a few are

coincidental, and several are the byproduct of efforts by the country‘s leaders.

Academics have debated these achievements, resulting in many assessments

applauding Botswana and a handful that note Botswana‘s success story is not

without significant flaws.77

Botswana‘s trajectory seems to have gone nowhere but is up since its

precarious and poverty-stricken position in 1966.78 In 1999, Abdi Ismail

Samatar wrote An African Miracle: State and Class Leadership and Colonial

Legacy in Botswana Development, one of the first explorations of the story of

the ―African Miracle.‖79 In the last decade, the debate over Botswana‘s

achievements has flourished.80 Those who applaud Botswana as ―the African

Miracle‖—including scholars such as Abdi Samatar, Daron Acemoglu, Simon

Johnson, James A. Robinson, J. Clark Leith, and Stephen Lewis,81 as well as

former president of Botswana, Quett Masire, who recently published his

memoirs—point to its political stability, regular elections, consistent

economic growth, and sound investment policies.82 Botswana succeeded in

these regards, as a brief summary of these achievements will demonstrate.

Following the discovery of significant diamond reserves, the GOB

pursued sound fiscal policies ensured that the country‘s diamond wealth was

75 Glenn-Marie Lange, Sustainable Development in Mineral Economies: The Example of

Botswana, 9 ENV‘T & DEV. ECON. 485, 491 (2004).

76 Hillbom, supra note 72, at 201.

77 See, e.g., QUETT KETUMILE MASIRE, VERY BRAVE OR VERY FOOLISH: MEMOIRS OF AN AFRICAN

DEMOCRACY ix–x (Stephen R. Lewis, Jr. ed., 2006); Daron Acemoglu et al., An African Success

Story: Botswana 2, 3 (Ctr. for Econ. Policy Research, Discussion Paper No.3219, 2001), available

at http://econ-www.mit.edu/files/284; LEITH, supra note 49, at 3; Lewis, supra note 38, at 3;

SAMATAR, supra note 7.

78 See Balefi Tsie, The Political Context of Botswana’s Development Performance, 22 J. S. AFR.

STUD. 599, 599–600 (1996).

79 SAMATAR, supra note 7, passim.

80 Dozens of articles have been published which review the achievements and failures of

Botswana with regard to several topics: the economy, the political context, indigenous and

minority rights issues, the environment, the mineral sector, and so on. Many of these articles are

cited herein.

81 See SAMATAR, supra note 7; Acemoglu et al., supra note 77, at 2; Lewis, supra note 38; LEITH,

supra note 49.

82 See generally MASIRE, supra note 77.


not squandered.83 The government has increased investment through

―responsibly handled dealings with foreign corporations and management of

state enterprises.‖84 Botswana‘s leadership has ensured that it has utilized

the wealth afforded by its natural resources wisely and accomplished great

economic feats.85 In turn, since its independence, Botswana has maintained

one of the highest GDP growth rates—not only in Africa, but also in the

world.86 From 1970 to 1999, Botswana‘s GDP growth rate has averaged 8.3

percent.87

Although the country‘s economic prosperity is based primarily on wealth

from diamond mining, it also arises from the beef exports and a growing

tourism industry88 that revolves around Botswana‘s many game reserves,

open landscape, and the biodiversity of its crown jewel, the Okavango Delta.89

The resulting financial base has provided the government with resources to

construct and maintain a solid infrastructure, including roads,

telecommunication systems, hospitals, hotels, and schools.90 The presence of

a well-maintained infrastructure, complemented by consistent political

stability, has incentivized foreign investment, furthering economic progress.91

Unfailing political stability has also proved central to Botswana‘s success.

Since its independence in 1966, Botswana has held free and fair elections

every five years, and maintained well-developed democratic institutions in

comparison to its African neighbors.92 Traditional Batswana society is noted

for its open discourse on public issues, which takes place in the communities

83 See Lewis, supra note 38, at 16.

84 Nicholas Olmstead, Indigenous Rights in Botswana: Development, Democracy and

Dispossession, 3 WASH. U. GLOBAL STUD. L. REV. 799, 801 (2004).

85 Joakim Hilldén & Johan Mesterton, Diamonds and Sustainable Growth: The Success Story of

Botswana (Fall 2005) (Bachelor‘s thesis, Uppsala University), available at http://urn.kb.se/

resolve?urn=urn:nbn:se:uu:diva-6353 (follow the ―fulltext »‖ link).

86 The African Exception, supra note 62.

87 UNICEF, Botswana, Statistics, http://www.unicef.org/infobycountry/botswana_statistics.html

(last visited Jan. 25, 2010).

88 Naomi Moswete & Felix Mavondo, Problems Facing the Tourism Industry of Botswana, 35

BOTS. NOTES & REC. 69, 69–77 (2003).

89 See generally Republic of Botswana, Democracy, Development, Self-Reliance and Unity,

http://www.gov.bw (the GOB‘s official website) (last visited Jan. 25, 2010).

90 LEITH, supra note 49, at 11–12.

91 Anupam Basu & Krishna Srinivasan, Foreign Direct Investment in Africa: Some Case Studies

22 (Int‘l Monetary Fund, Working Paper No. WP/02/61, 2002), available at http://www.imf.org/

external/pubs/ft/wp/2002/wp0261.pdf.

92 Lewis, supra note 38, at 6, 11. However, Botswana‘s electoral system and its electoral

commission are criticized as being in need of reform. See generally Mpho G. Molomo, The Need

for Electoral Reform in Botswana, 4 AFR. J. CONFLICT RESOL. 55 (2004) (addressing Botswana‘s

―First-Past-The-Post‖ electoral system, its stability, and its shortfalls in support of ―internal

democracy‖).


through the kgotla, an institution of the chieftaincy system in which the chief

and community leaders discuss issues of concern in a neutral setting.93

Francis Nyamnjoh thoroughly documents Botswana‘s incorporation of the

chieftaincy system into its modern government in her article, Chieftaincy and

the Negotiation of Might and Right in Botswana Democracy.94

There has been so little internal or external conflict in Botswana in

recent history that some authors have referred to the political situation as

―dull.‖95 In its 2008 Corruption Perceptions Index, Transparency

International ranked Botswana the best-performing country in Africa, with a

global ranking of thirty-six, which it shared with Malta and Puerto Rico.96

The country has been lucky to have some of the more commendable

African leaders. Noteworthy among them are the three chiefs, Bathoen,

Khama (the Great), Sebele, who traveled to England in 1895 to petition the

Queen not to hand over Botswana‘s lands to Cecil Rhodes, and the Republic‘s

first President, Sir Seretse Khama.97 Khama‘s focus on accountability and

political consultation, his push to de-racialize the political system, his

responsible fiscal policy, and his contingency planning are all achievements

emblematic of his successful and popular leadership.98

The combination of these positive economic and political factors has led to

endless references to Botswana as Africa‘s ―Miracle,‖ not just by a handful of

academics, but by the media and many others.99 While these same

commentators deplore the tragedies of failing African economies and corrupt

governments, they reference Botswana as a remarkable exception to the

overall condition of the continent.100 Clearly, Botswana has succeeded by

many standards in pulling itself out of devastating poverty101 and building

93 MASIRE, supra note 77, at 62–63.

94 See Francis B. Nyamnjoh, Chieftancy and the Negotiation of Might and Right in Botswana

Democracy, 12 J. CONTEMP. AFR. STUD. 233 (2003).


96 TRANSPARENCY INT‘L, CORRUPTION PERCEPTIONS INDEX (2008), available at http://www.trans

parency.org/policy_research/surveys_indices/cpi/2008. In comparison, South Africa was ranked

54, Mozambique 126, Angola 158, Zambia 115, and Namibia 61, while the United States was

ranked 18. Id.


98 See Lewis, supra note 38, at 10, 17 (recounting Khama‘s leadership in difficult, racially-tense

times, and speaking generally to the GOB‘s foresight).

99 See SAMATAR, supra note 7; see also Acemoglu et al., supra note 77; Gadibolae Gadibolae II,

Commentary Bemoans Signs of ―End of Democracy‖ in Botswana, BOTS. GAZETTE, Nov. 19, 2008;

Ian Taylor, The HIV/AIDS Pandemic in Botswana: Implications for the ―African Miracle,‖ in

THE POLITICAL ECONOMY OF AIDS IN AFRICA 151 (Nana Poku & Alan Whiteside eds., 2004).

100 See SAMATAR, supra note 7, passim; Acemoglu et al., supra note 77, at 2–3.

101 Stephen M. Kapunda, Diversification and Poverty Eradication in Botswana, 17 PULA BOTS. J.

AFR. STUD. 51, 54 (2003).


the foundation for a functioning democracy.102 However, as Francis

Nyamnjoh notes, ―Real democracy means much more than the right to vote or

to be voted for, especially as these rights do not always deliver the

recognition, representation and entitlements that individuals and groups

seek in any given context.‖103 One must ask, is Botswana truly a progressive

and democratic state simply because it holds elections and maintains a high

GDP?

V. BOTSWANA‘S LUCKY BREAK

If Botswana is to serve as an example for other African countries, it is

important to note that many of Botswana‘s successes are the result of

happenstance rather than intent, and therefore cannot be replicated. Among

the non-replicable factors that have played significant roles in Botswana‘s

success are its distinctive colonial context, which helped facilitate the

political dominance of a single ethnic group, and the existence of some of the

most significant diamond deposits in the world.104

While most European colonies in Africa were governed by direct rule, the

British governed Botswana indirectly in the form of the Bechuanaland

Protectorate.105 At the time, the British saw the region as an empty

scrubland, worth little more than a buffer zone between their enemies and a

road heading north.106 Though this region aroused little interest regarding

the natural resources or crop production found in other colonies, was sparsely

populated, and was more or less politically irrelevant at the time, the British

decided it was worth protecting in order to avoid expansion of other colonial

powers.107 At the invitation of two paramount chiefs, who feared invasion

from the Boers in the south, the British cemented their control of the region

by establishing the Bechuanaland Protectorate in 1885.108

Because Britain‘s financial resources were already strained by its other

colonies around the world, it wanted to avoid the cost of micro-managing yet

another African nation.109 As a consequence, the choice of the protectorate

model of governance had significant impacts on Botswana‘s political

102 See 40 YEARS OF DEMOCRACY IN BOTSWANA: 1965–2005 (Zibani Maundeni ed., 2005).

103 Nyamnjoh, supra note 94, at 233.

104 Acemoglu et al., supra note 77, at 3, 11, 12, 29.

105 J.H. Proctor, The House of Chiefs and the Political Development of Botswana, 6 J. MOD. AFR.

STUD. 59, 59 (1968).


107 Olmstead, supra note 84, at 817.

108 NEIL PARSONS, KING KHAMA, EMPEROR JOE AND THE GREAT WHITE QUEEN: VICTORIAN

BRITAIN THROUGH AFRICAN EYES 40–41 (1998).



leadership.110 The protectorate model meant limited colonial interference in

the pre-existing forms of governance.111 In fact, the Crown specifically

instructed its first Assistant Commissioner to the Protectorate ―not to

interfere with the Native Administration; the Chiefs are understood not to be

desirous of parting with their rights of sovereignty, nor are Her Majesty‘s

Government by any means anxious to assume the responsibilities of it.‖112 In

1891, the British government specifically ordered the High Commissioner to

―respect any native laws or customs by which the civil relations of any native

chiefs, tribes, or populations under [British] protection are now regulated.‖113

The British left the Batswana more or less to rule themselves and therefore

only minimally interrupted functioning political systems in the country.114

The relevance of past indirect rule in Botswana is highly significant

today. Limited interference in all aspects of life meant the British colonial

footprint was much less pronounced than in other African nations.115 Local

leadership and a partially homegrown political framework already existed at

independence, whereas other liberated countries had to recreate such

frameworks nearly from scratch.116 Indirect rule also meant that the

transition to independence was less brutal.117 Botswana was a peaceful

Protectorate, and its people did not have to rise up against its colonizers in a

violent manner to become the country it is today.118 The British relinquished

their protectorate fairly easily, due in part to its perceived lack of value.

However, the absence of struggle in Botswana at independence may also have

affected levels of political consciousness adversely during the post-colonial

period.119

While there is much debate over how imbedded the colonial footprint is in

former colonies today, this Article argues that its footprint is intrinsic in

110 Christian John Makgala, Taxation in the Tribal Areas of the Bechuanaland Protectorate,

1899–1957, 45 J. AFR. HIST. 279, 279 (2004) (arguing ―[S]ince Bechuanaland became a British

territory through negotiations the Tswana rulers were able to protect their interests aggressively

but with little risk of being deposed.‖); see generally Michael Crowder, Tshekedi Khama and

Opposition to the British Administration of the Bechuanaland Protectorate, 1926–1936, 26 J. AFR.

HIST. 193 (1985) (arguing that the leaders of the Protectorate never pandered to British

domination).

111 Molutsi & Holm, supra note 39, at 324.


113 Id. at 821 (insertion in original).


115 Molutsi & Holm, supra note 39, at 324.

116 See Proctor, supra note 105.


118 Id.

119 Ian Taylor, As Good As It Gets? Botswana’s ―Democratic Development,‖ 21 J. CONTEMP. AFR.

215, 221 (2003).


modern African statehood. Colonialism changed the entire mapping of the

African continent,120 instilled foreign institutions, and destroyed much of

Africa‘s historic institutional framework.121 Colonizers generally removed the

traditional institutions for leadership training and forced the African

populations into obedience.122 The protectorate model minimized this

destructive colonial legacy, which may account for Botswana‘s

straightforward transition to independence, successful democratic

institutions, and commendable leadership. A combination of British

cooperation with the Batswana in governing the country during the

Protectorate era, and the fact that power was in the hands of a few local elite,

made the transition to independence even easier.123 As Kenneth Good notes,

―a major reason for this smoothness was that the transfer took place

collaboratively between an indigenous elite and a colonial elite, with little or

no engagement by the people.‖124

Botswana also benefited from what others have termed its ethnic

homogeneity, which is more accurately described as the dominance of a single

ethnic group.125 According to some sources, the Tswana people, who are

comprised of several subgroups, constitute a significant majority at 79

percent of the population.126 The Tswana are descendents of the Sotho

peoples of Southern Africa who arrived in Botswana in the 1800s.127 There

are roughly 5 million Tswana across Botswana, Namibia, and South Africa

today.128 Tswana descendents speak Setswana, creating a near-universal

native language spoken by 78 percent of the national population.129 In the

late 1800s, the group began to take land and to dominate the political process

through the chieftainship system.130

120 J. Barron Boyd, Jr., African Boundary Conflict: An Empirical Study, 22 AFR. STUD. REV. 1, 1

(1979).

121 See generally Pierre Englebert, Pre-Colonial Institutions, Post-Colonial States, and Economic

Development in Tropical Africa, 53 POL. RES. Q. 7 (2000) (arguing that the extent to which pre-

existing forms of governance clash with post-colonial systems impacts a state‘s economic growth).

122 See generally Maake Masango, Leadership in the African Context, 55 ECUMENICAL REV. 313

(2003) (treating the extent of the colonial imprint on Africa today, and the challenges of

developing new models of leadership).


124 GOOD, supra note 10, at 8; see also Dennis L. Cohen, The Botswana Political Elite: Evidence

from the 1974 General Election, 4 J. S. AFR. AFF. 347 (1979).

125 LEITH, supra note 49, at 28–29.


127 AFRICANA, supra note 34, at 1891.

128 Id.




In 1933, British authorities officially recognized the eight principal

Tswana-descended ethnic groups131 in the Chieftainship Act. At

independence, the law carried over this distinction into the Botswana

Constitution,132 which stipulates in §§ 77–79 that a representative of each

Tswana tribe will serve in the House of Chiefs, a governmental advisory

committee.133 The four representatives from minority ethnic groups serving

in the House of Chiefs are referred to as ―sub-Chiefs.‖134 Complaints by

minority groups eventually led to a Presidential Commission, appointed in

2000, which examined the question of whether §§ 77–79 of the constitution

are discriminatory and found that they were.135 The government published a

White Paper in 2002, in which it accepted the Commission‘s findings and

agreed that the language in this section should be changed.136 However,

scholars have argued that the constitutional amendments made in 2005 did

not eliminate its discriminatory nature, as specific references calling for

chiefs from the eight dominant Tswana tribes were simply replaced by

references calling for chiefs from districts controlled by these same tribes.137

The Tribal Territories Act of 1933, which divided Botswana into districts and

named each district according to the seven dominant Tswana tribes,138 was

also carried over into the constitution at independence.139

While there is great diversity among small ethnic groups within

Botswana, the political dominance of one group more or less eliminated the

threat of ethnic battles for power,140 such as the conflict between the Hutu

131 Nyati-Ramahobo, supra note 32, at 1. The eight groups are: the Barolong, Bakwena,

Bangwaketse, Balete, Bakgatla, Batlokwa, Bangwato, and Batawana. Id.

132 Id. at 3; see generally A. Aguda, Discriminatory Statutory Provisions and the Fundamental

Rights Provision of the Constitutions of Botswana, Lesotho and Swaziland, 89 S. AFR. L.J. 299

(1972) (discussing judicial interpretation of laws implying state-sponsored discrimination across

different African countries with identically-worded constitutional fundamental rights

provisions).

133 BOTS. CONST. ch.5, §§ 77–79, available at http://www.botswanaembassy.org/files/constitution_

of_botswana.pdf.

134 Nyati-Ramahobo, supra note 32, at 2.

135 Charles Mange Fombad, The Constitutional Protection Against Discrimination in Botswana,

53 INT‘L & COMP. L.Q. 155, 156 (2004) [hereinafter Fombad, Constitutional Protection Against

Discrimination in Botswana].

136 Id.

137 See Nyati-Ramahobo, supra note 32 (exploring the marginalization of non-Tswana tribes in

Botswana).

138 Tribal Territories Act of 1933 ch. 32, § 3, reprinted in THE LAWS OF BOTSWANA: REVISED

EDITION OF 2002 (Republic of Botswana Vol. IV 2002).

139 Fombad, Constitutional Protection Against Discrimination in Botswana, supra note 135, at

156.

140 ONALENNA DOO SELOLWANE, U.N. RESEARCH INST. FOR SOC. DEV., ETHNIC STRUCTURE,

INEQUALITY AND GOVERNANCE OF THE PUBLIC SECTOR IN BOTSWANA 1–2 (2004), available at


and Tutsi in Rwanda,141 or between Arab northerners and black southerners

in the Sudan.142 However, the absence of ethnic conflict does not necessarily

indicate that the Batswana are less prone than other peoples to ethnic

violence. The Tswana have simply marginalized existing minorities to the

point that minorities have little chance of impacting the Tswana‘s dominance

in the political sphere.143 These minority groups, which include thirty-eight

other ethnic groups, struggle to gain official recognition from the

government—a battle they have not yet won—let alone meaningfully

participate in the political process.144 Beyond the discrimination espoused in

the constitution, which does not officially recognize the non-Tswana tribes,145

the Tswana‘s dominance is also reflected in Botswana‘s official languages.146

The GOB permits only the use of Setswana and English in schools and in

government, which affects linguistic minorities‘ access to social services.147

These two languages also dominate the media.148

Botswana‘s third good luck charm was the fortuitous discovery of

diamonds just after independence, when Botswana was one of the poorest

nations in the world.149 De Beers geologists found diamonds in Orapa in

1967.150 Had knowledge of the diamonds surfaced even a year earlier, it could

have changed the course of Botswana‘s modern history. While the wealth

afforded by the diamonds would exist regardless of the date of their

discovery, the British may not have relinquished control of the Protectorate

quite so easily or quickly had they known of Botswana‘s diamond deposits. At

the very least, they likely would have pushed for mineral concessions as a

contingency for independence. Instead, the newly independent government

was able to maintain control of its diamond resources by creating Debswana,

the national diamond company it owns in an equal partnership with the

http://www.unrisd.org/80256B3C005BCCF9/httpNetITFrame?ReadForm&parentunid=C9BAF69

26799077AC1256E9E00447A6F&parentdoctype=paper&netitpath=http://www.unrisd.org/unpub

lished_/dghr_/selolwan/content.htm.

141 BILL BERKELEY, THE GRAVES ARE NOT YET FULL 248 (Basic Books 2001).

142 Id. at 196.

143 David Reed Cohen, Tracing Rootlets of Modern Political Discourse in Botswana: The Role of

Archaeology in the Creation of Identities 6 (Feb. 19–20, 2006) (unpublished manuscript),

available at http://traumwerk.stanford.edu:3455/CulturesofContact/admin/download.html?attach

id=65980.

144 Nyati-Ramahobo, supra note 32, at 1.

145 Id. at 3.

146 Id. at 4.

147 Id.

148 Id.


150 Debswana, supra note 68.


global diamond conglomerate De Beers.151 The fortuitous discovery of

diamonds jump-started the nation‘s fledgling economy.152 Without diamonds,

Botswana may have remained among the poorest nations in Africa.

Because Botswana is so often treated as a model of success in Africa, it is

highly relevant that three factors—diamond wealth, limited colonial

intrusion, and the dominance of a single ethnic group—cannot easily be

replicated by other countries. What the country‘s leadership was able to do

with these elements of fortune is important and often admirable. However, a

closer examination of Botswana‘s political and economic context shows,

despite some good decision-making, Botswana can do much more to ensure

that all of its citizens benefit from this fortune. It can also better protect the

human rights of all Batswana and should work to ensure a more even

application of these rights among its citizenry.

VI. IS BOTSWANA A MIRACLE IN THE AFRICAN CONTEXT?

On October 6, 2008, the Mo Ibrahim Foundation (―Foundation‖)

recognized Botswana when it released its 2008 Ibrahim Index of African

Governance.153 First published in September 2007, the Ibrahim Index of

African Governance is ―a comprehensive ranking of African countries

according to governance quality.‖154 It assesses national governance against

fifty-seven criteria intended to capture the quality of services that

governments provide to their citizens.155 It is meant to focus on the

experiences of the people of a country, using criteria that are divided into five

categories.156 It is interesting to note that, according to the Index, almost two-

thirds of sub-Saharan African countries—thirty-one out of forty-eight—

recorded an improvement in government performance between 2000 and

2006.157 The Foundation notes further that the largest improvement occurred

in the category ―Participation and Human Rights,‖ in which twenty-nine



153 MO IBRAHIM FOUND., IBRAHIM INDEX OF GOVERNANCE: II. THE 2008 RESULTS 1 (2008),

available at http://site.moibrahimfoundation.org/The full 2008 Ibrahim Index.pdf (figures based

on data from 2006) [hereinafter IBRAHIM INDEX OF GOVERNANCE].

154 Mo Ibrahim Found., Ibrahim Index, http://www.moibrahimfoundation.org/en/section/the-ibra

him-index (last visited Jan. 25, 2010).

155 IBRAHIM INDEX OF GOVERNANCE, supra note 153, at THE MEANING OF GOVERNANCE 2.

156 The five categories are: safety and security; rule of law, transparency, and corruption;

participation and human rights; sustainable economic opportunity; and human development.

IBRAHIM INDEX OF GOVERNANCE, supra note 153, at THE MEANING OF GOVERNANCE 1.

157 Press Release, Mo Ibrahim Found., New Data Shows That Two Thirds of Sub-Saharan African

Countries Have Improved Governance Performance (Oct. 6, 2008), available at http://

www.moibrahimfoundation.org/en/media/get/20091002_061008-index-global-press-release.pdf

[hereinafter Press Release, New Data Shows].


countries demonstrated progress.158 On releasing the index, Mo Ibrahim

himself noted that:

Obscured by many of the headlines of the past few months,

the real story coming out of Africa is that governance

performance across a large majority of African countries is

improving. According to this comprehensive analysis,

progress is being made across the continent against a range of

key governance indicators.159

However, other findings contradict this analysis.160 While the last few

years have shown signs of hope for human rights on the African continent,

recurring instances of flagrant human rights abuse, and the debilitating

violence that often accompanies the abuse, continue to afflict large swaths of

the continent.161 In its 2008 World Report, Freedom House noted that:

The year 2007 was marked by a notable setback for global

freedom. The decline, which was reflected in reversals in one-

fifth of the world‘s countries, was most pronounced in South

Asia, but also reached significant levels in the former Soviet

Union, the Middle East and North Africa, and sub-Saharan

Africa.162

The decline is, therefore, not specifically an African problem, but a global

one. However, the Report also noted that:

While in the last several years the sub-Saharan region has

made incremental if uneven progress, the year 2007 saw the

deterioration of freedom on the continent. Fifteen countries in

sub-Saharan Africa registered reversals of sufficient

magnitude to be noted in the survey, while six countries

registered improvements.163

The fifteen countries experiencing declines were Cameroon, Central

African Republic, Chad, Comoros, the Democratic Republic of Congo, Guinea-

Bissau, Kenya, Lesotho, Madagascar, Malawi, Mali, Niger, Nigeria, the

Republic of Congo (Brazzaville), and Somalia; while those demonstrating

improvements were Cote d‘Ivoire, Mauritania, Mozambique, Rwanda, Sierra

158 Id.

159 Id.

160 ARCH PUDDINGTON, FREEDOM HOUSE, FINDINGS OF FREEDOM IN THE WORLD 2008—FREEDOM

IN RETREAT: IS THE TIDE TURNING? (2008), http://www.freedomhouse.org/template.cfm?page=

130&year=2008.

161 Id.

162 Id.

163 Id.


Leone, and Togo.164 The imbalance between the number of African countries

showing improvements and those showing declines indicates there are still

many countries on the African continent that will continue to violate human

rights with relative impunity. The Freedom House research suggests that the

number of countries that are experiencing positive developments in the area

of human rights is in decline.

According to the Mo Ibrahim Index, Botswana marginally improved in

three out of five categories: Participation and Human Rights; Sustainable

Economic Opportunity; and Human Development.165 Botswana‘s score

remained the same in the Safety and Security category; however, this is the

country‘s weakest category and the only one in which it ranked outside the

top ten.166 Botswana fell slightly in the Rule of Law, Transparency and

Corruption category.167 The Index shows that, between 2005 and 2006,

Botswana improved its overall score to seventy-four out of one hundred, but

remained in fourth place out of sub-Saharan Africa‘s forty-eight countries.168

Although scholars and analysts accurately have recognized Botswana‘s

success in achieving political stability and economic growth,169 it is important

not to end the analysis there. Several scholars have devoted their work to

dissecting the myth of the Botswana ―Miracle‖ and exposing the limitations of

democracy and human rights suffered by many Batswana.170 Among the

problems they cite are the dominance of the ruling party, unchecked

presidential power, limited freedom of expression, economic disparities that

are among the worst in the world, preferential treatment for certain ethnic

groups, and levels of HIV/AIDS171 that threaten the very existence of a future

work force.172 Some scholars, such as Jacqueline Solway, Richard Werbner,

Keitseope Nthomang, and Sidsel Saugestad, have focused on the inadequate

protection of minority and indigenous rights in Botswana.173 Clement

164 Id.

165 Press Release, New Data Shows, supra note 157.

166 Id.

167 See generally R. Nengwekhulu, Human Rights, Development and the Rule of the Law in Post-

Colonial Botswana, in BOTSWANA: POLITICS AND SOCIETY 351 (W.A. Edge & M.H. Lekorwe eds.,

1998) (evaluating early Botswana‘s compliance with the rule of law).

168 Press Release, New Data Shows, supra note 157.

169 SAMATAR, supra note 7, passim.

170 See examples of such work, infra notes 176–83.

171 See, e.g., T. Maundeni, The Boy Child and HIV in Botswana: A Neglected Issue in Research

and Practice, 18 PULA BOTS. J. AFR. STUD. 43 (2004) (dealing with HIV/AIDS issues in Botswana

and the GOB‘s response to the disease).


173 See Solway, supra note 31, at 711–29; SAUGESTAD, supra note 12; Richard Werbner,

Introduction: Challenging Minorities, Difference and Tribal Citizenship in Botswana, 28 J. S.


Ng‘ong‘ola and Robert Hitchcock have written extensively on land rights and

indigenous groups.174 The works of Ian Taylor and Francis Nyamnjoh uncover

the historical roots of—and limitations to—democracy in Botswana.175

Finally, Bugalo Maripe, Scott Pegg, and Kenneth Good have exposed

restrictions on freedom of expression due to government control of the media,

academia, and access to information.176 Good, who is among the most notable

critics of the GOB, has explored rarely-exposed violations of human rights,

the severity of economic inequality, and constraints on the democratic

process.177 Digging beneath the surface exposes significant limitations to the

story of the Botswana ―Miracle‖ and reveals a far less commendable

democracy beneath.178

A. Laws and Practice

Although Botswana is considered one of Africa‘s most successful multi-

party democracies, the system contains political practices and laws that are

decidedly undemocratic. For example, the constitution provides the President

with unrestrained powers, authorizing him to make many decisions without

input.179 He has direct control over the police, the information and

broadcasting sector, the Directorate on Corruption and Economic Crime, and

the public service.180 The President appoints the Vice President and all

cabinet members, and is permitted to appoint four Specially Elected Members

of Parliament.181 A 1998 constitutional amendment allowed the Vice

President to automatically succeed the President upon his retirement,

AFR. STUD. 671 (2002); Keitseope Nthomang, Relentless Colonialism: The Case of the Remote Area

Development in Botswana, Donor Assistance, and the First People of the Kalahari, 42 J. MOD.

AFR. STUD. 415 (2004).

174 See Clement Ng‘ong‘ola, Land Rights for Marginalized Ethnic Groups in Botswana, with

Special Reference to the Basarwa, 41 J. AFR. L. 1 (1997); Robert K. Hitchcock, We Are the First

People: Land, Natural Resources and Identity in the Central Kalahari, Botswana, 28 J. S. AFR.

STUD. 755 (2002).

175 See Taylor, supra note 119; Nyamnjoh, supra note 94.

176 See Bugalo Maripe, Freezing the Press: Freedom of Expression and Statutory Limitations in

Botswana, 3 AFR. HUM. RTS. L.J. 52 (2003); Scott Pegg, Presidential Succession and Academic

Freedom: Botswana Deports Leading Political Scientist Kenneth Good, 38 POL. SCI. & POL. 829

(2005); Kenneth Good, The State and Extreme Poverty in Botswana: The San and Destitutes, 37 J.

MOD. AFR. STUD. 285 (1999).

177 See, e.g., GOOD, supra note 10.

178 See Monageng Mogalakwe, Botswana: Exploding the Myth of Exceptionality, 38 AFR. INSIGHT

105, 105–17 (2008).

179 BOTS. CONST. ch.4, § 47(2). Section 47(2) provides, ―In the exercise of any function conferred

upon him by this Constitution or any other law the President shall, unless it is otherwise

provided, act in his own deliberate judgment and shall not be obliged to follow the advice

tendered by any other person or authority.‖ Id.


181 Id.


permitting recent Presidents Ketumile Masire and Festus Mogae, who ―had

no popular constituencies whatsoever,‖ to come to power.182

B. Politics

Political campaigning is another major issue. The Botswana Democratic

Party (―BDP‖) has been in power so long that other political parties have

rarely stood a chance against it. The Botswana National Front is the BDP‘s

main adversary, but its apparent inability to mount any threat to the BDP

has rendered it and other parties, including the Botswana Congress Party,

largely helpless, as potential constituents are not likely to contribute to a lost

cause.183 The U.S. State Department‘s 2007 Country Report on Human Rights

Practices in Botswana expresses concern about BDP candidates‘ ―preferential

access to state-owned television during much of the campaign.‖184

Furthermore, the BDP‘s impartiality is constrained by the fact that, ―in a

country where the ruling party has been so dominant for so long, the

distinction between party and government interests is clearly blurred.‖185

Regular elections are not enough to indicate a functioning democracy. As Sir

Ketumile Masire, former President of Botswana, noted:

A fixation on natural electoral practices, without

considerations of broader democratic practices in the economy

and social sphere, creates skepticism. There is much in the

African experience that suggests that a broader view of

democracy building that encompasses social dynamics is not

only necessary, but essential for any of the policy perspectives

that we are seeking to establish.186

The election process in Botswana was historically tainted by the fact that

the public did not perceive the Supervisor of Elections as independent.187 The

Independent Electoral Commission, which replaced the Supervisor for the

election of 1999 and subsequent elections, is also suspect. This is due to two

factors: the President appoints the CEO, and the staff are under the control

of the public service.188

182 Pegg, supra note 176, at 830.

183 Taylor, supra note 119, at 218.

184 U.S. Dep‘t of State, 2007 Country Report on Human Rights Practices: Botswana (2008),

available at http://www.state.gov/g/drl/rls/hrrpt/2007/100467.htm [hereinafter U.S. Dep‘t of State

2007].


186 INT‘L INST. FOR DEMOCRACY AND ELECTORAL ASSISTANCE, DEMOCRACY IN DEVELOPMENT:

GLOBAL CONSULTATIONS ON THE EU‘S ROLE IN DEMOCRACY BUILDING 23 (2009).

187 Tsie, Botswana’s Independent Electoral Commission, supra note 45, at 145.

188 See id. at 146, 149.

http://www.state.gov/g/drl/rls/hrrpt/2005/61555.htm


Purveyors of the rosy Batswana myth often praise the country‘s strong

leadership. Botswana has had commendable leaders, such as the country‘s

first President, Sir Seretse Khama. However, Botswana‘s ―strong‖ leadership

could, in fact, be indicative of an authoritarian or elite culture.189 Botswana is

noted for ―historically high levels of social control possessed by its ruling

elites.‖190 While Batswana society has certainly remained stable, Good argues

that stability is actually based on critically low levels of popular

participation, ―a handmaid to elitism.‖191 Even the kgotla, Botswana‘s

traditional democratic platform for political representation, as Larry Swatuk

claims, ―allows for the illusion of inclusion and open (though limited)

expression of opinion by the citizenry, but . . . the agenda is set and key

decisions are taken by the ruling class.‖192 Essentially, as Good and Taylor

argue, ―Botswana‘s democracy is highly elitist, power is excessively

centralized in the presidency, secrecy and non-accountability in government

are pervasive, and there is growing autocracy.‖193

C. Criticism

Another issue of concern is the GOB‘s aversion to criticism and its efforts

to eliminate disparagement of the government from public discourse. A

telling case of the limits of democracy in Botswana was the 2005 deportation

of Kenneth Good, vocal critic of the government.194 The government expelled

Professor Good, a 72-year-old Australian academic, after he had spent fifteen

years teaching at the University of Botswana.195 President Festus Mogae

declared Good a ―Prohibited Immigrant‖ and gave him two days to leave the

country, exercising his executive right to forgo any explanation for the

eviction because he deemed it an ―issue of national security.‖196 It is widely

assumed that the GOB deported Good because of his criticism of the

government.197 As Scott Pegg notes, Good‘s deportation ―painfully confirms

the validity of many of his arguments about the nature of democracy in


190 Id.

191 Id. at 8.

192 Larry A. Swatuk, From ―Project‖ to ―Context‖: Community Based Natural Resource

Management in Botswana, 5 GLOBAL ENVTL. POL. 95, 109 (2005), available at http://www.mit

pressjournals.org.proxy.lib.uiowa.edu/doi/abs/10.1162/1526380054794925.


194 Botswana Deports Professor Critic, BBC NEWS, June 1, 2005, http://news.bbc.co.uk/2/

hi/africa/4597053.stm.


196 Id.

197 Id. at 830.


Botswana.‖198 Since that time, the government has made it more difficult for

foreign journalists and academics to obtain visas.199 The Minister of Labour

and Home Affairs, Charles Tibone, recently invoked a clause from the

Immigration Act regarding visa requirements in order to target seventeen

individuals from abroad who he perceived as inclined to criticize the

government.200 The list includes Good‘s colleague Ian Taylor, an academic

who often criticizes government actions against the San.201 The targeted

individuals, unlike other visitors, must now obtain a visa before traveling to

Botswana.202

D. Civil Society and the Media

Botswana also suffers from a weak and apolitical civil society,203 evinced

in part by low voter turnout in the 1990s. National elections in 1999 showed

a 42 percent turnout, very low in comparison to the turnout in much of the

rest of sub-Saharan Africa in the 1990s, which often pushed 80 percent.204

There are low levels of political consciousness and a weak civil society in

Botswana, due in part to the ―lack of any meaningful ‗struggle‘ for

independence and the concomitant absence of a tradition of questioning.‖205

This legacy also may result from historical domination by the chiefs and

other elites.206 Batswana often tend to go with the flow when it comes to

politics.207 As Swatuk claims, ―public opposition to the ruling party is frowned

upon, as is aggressive, confrontational styles of political activism.‖208 Perhaps

because of this, Botswana‘s NGOs are hesitant to address controversial

issues such as human rights, gender equity, capital punishment, political

education, the San, or democracy.209 One of the biggest concerns in any weak

civil society is that there is little chance of consolidating an opposition group

198 Id.

199 Thom Mclachlan, Botswana’s Special Entry Visas for Critics, BUS. DAY (S. Afr.), Apr. 7, 2007,

at 1.

200 Id.

201 Id.

202 Id.

203 See Terrance Carroll & Barbara W. Carroll, The Rapid Emergence of Civil Society in

Botswana, 42 COMMONWEALTH & COMP. POL. 333 (2005); Maurizo Carbone, Weak Civil Society in

a Hard State, 1 J. CIV. SOC‘Y 167 (2005).


205 Taylor, supra note 119, at 221 (citing Holm et al., The Development of Civil Society in a

Democratic State: The Botswana Model, 39 AFR. STUD. REV. 2 (2003)).

206 Swatuk, supra note 192, at 109.

207 Id.

208 Id.



that is strong enough to force the government to address democratic

deficiencies, specifically in the form of human rights abuses.

Government influence and certain laws also severely limit the freedom of

the media in Botswana.210 While there is independent media, the government

dominates most of the media through state television, two radio stations, and

its newspaper, the Daily News.211 State media rarely criticizes the

government and often favors the BDP.212 The Office of the President has

direct control over the Daily News, and public officials are forbidden to talk to

the press.213 Furthermore, the 1986 National Security Act forbids publication

of information relating to national security and generally restricts access to

information.214 There is no freedom of information legislation and the public

does not have access to government documents.215 Until the end of 2009, the

government website had a link to the laws of Botswana labeled ―restricted

access;‖ the page said ―access forbidden‖ and noted that Botswana‘s laws

were not yet available on the internet for public use.216 Additionally, the

government has been known to intervene and censor the media when it

covers sensitive topics,217 including the cancellation of live radio panel

discussions on state-owned broadcasting.218 According to the U.S. State

Department‘s 2007 Report on human rights in Botswana, government

journalists often censored themselves.219 In 2005, the government deported at

least two foreign journalists, in addition to Good, whose reporting was critical

of the government, without justification other than national security

concerns.220 The government also has attempted to enact a piece of legislation

entitled the Mass Media Communications Bill, which would place further

checks on free media,221 such as bestowing power upon the government to

210 See Maripe, supra note 176.

211 U.S. DEP‘T OF STATE 2007, supra note 184.

212 Id.


214 AFR. MEDIA DEV. INITIATIVE, BOTSWANA COUNTRY REPORT: CONTEXT 9 (2006), available at

http://downloads.bbc.co.uk/worldservice/trust/pdf/AMDI/botswana/amdi_botswana3_media_healt

h.pdf.


216 Government of Botswana, Access Forbidden, http://www.laws.gov.bw/ (last visited Oct. 10,

2009).


218 AFR. MEDIA DEV. INITIATIVE, supra note 214, at 11.

219 U.S. Dep‘t of State 2005, Country Report on Human Rights Practices: Botswana (2006),

available at http://www.state.gov/g/drl/rls/hrrpt/2005/61555.htm [hereinafter U.S. Dep‘t of State

2005].

220 Id.



register and deregister newspapers at will.222 Some argue that this bill

directly contradicts constitutionally-protected freedom of expression rights.223

Since 2008, the GOB has been trying to impose a statutory press council on

the country, further attempting to control the media and make it as

compliant as possible with the wishes of the state.224 The task of the press

council will be to adjudicate complaints against the media.

E. Economic Issues

In addition to political issues, several economic concerns highlight that

the description of Botswana as Africa‘s ―Miracle‖ fails to convey meaning for

all Batswana. While Botswana has experienced noteworthy economic growth

over the last forty years, its ―national success conceals hugely different

outcomes among the local population,‖ who suffer significant disparities in

wealth.225 According to the U.N. Development Programme Human

Development Indicators, Botswana ranks third highest in the world in its

Gini coefficient, a measure of the inequality of income distribution, behind

Comoros and Namibia.226 It has a Human Development Index rating of 125

out of 182 countries.227 As Good notes, ―high growth has not ameliorated the

socioeconomic inequalities long existing in the country.‖228 From 2000 to

2007, 31.2 percent of the population lived on less than $1.25 per day, while

49.4 percent of the people lived on less than $2 per day.229 The richest 10

percent of the population have access to a 51.2 percent share of income or

expenditures.230 Therefore, as Ian Taylor argues, ―the creation of a more

equitable society and fairer distribution of resources remains Botswana‘s

greatest development challenge and one which will define the success or

otherwise of the post-independence project.‖231 As of yet, Botswana has not

been successful in translating its mineral wealth into overall poverty

reduction, and many Batswana continue to suffer at the bottom of the

222 AFR. MEDIA DEV. INITIATIVE, supra note 214, at 11.

223 Id. at 10.

224 Khanyi Mndaweni, The Press Council of SA’s Annual General Meeting in Johannesburg, THE

PRESS COUNCIL OF S. AFR., Aug. 15, 2008, http://www.presscouncil.org.za/pages/posts/the-press-

council-of-sarsquos-annual-general-meeting-in-johannesburg-on-august-14-and-15-200815.php.

225 Michael B.K. Darkoh & Joseph E. Mbaiwa, Globalization and the Livestock Industry in

Botswana, 23 SING. J. TROPICAL GEOGRAPHY 149, 150 (2002).

226 Gini Index, supra note 65.

227 UNDP, Human Development Report 2009—HDI Rankings (2009),

http://hdr.undp.org/en/statistics/.


229 UNDP, Human Development Report 2009: Botswana (2009), available at

http://hdrstats.undp.org/en/countries/data_sheets/cty_ds_BWA.html.

230 Id.



economic food-chain. Thus, while Botswana is doing well economically, its

riches are not trickling down to those who most need assistance. Advances in

socioeconomic rights are not occurring even though Botswana has some

capacity to make improvements to the lives of its poorest inhabitants.

F. Minority Groups

This economic differentiation is most exemplified by the San, a group of

traditional hunters and gatherers that live in the Kalahari region and are

one of Botswana‘s most marginalized minorities. ―Belonging to a

marginalized, often stigmatized, indigenous minority,‖ Sidsel Saugestad

notes, ―almost invariably includes a state of abject poverty,‖ and the San are

no exception.232 Olmstead writes, ―the San have largely been denied the fruits

of Botswana‘s rapid economic growth and social development,‖ as they endure

chronic poverty and unemployment and are forced to depend on handouts

from the government to survive.233 In general, the Tswana have historically

treated the San as second-class citizens, often taking them as servants or

slaves.234 More recently, tremendous tensions between the government and

the San led to the prominent land rights conflict in the Central Kalahari

Game Reserve and the ensuing court case.235 The San residents of the

Central Kalahari Game Reserve suffered the following at the hands of the

government: forced removal, termination of basic and essential services,

―dismantling of existing infrastructures, the confiscation of livestock,‖

restriction of movement, harassment, and ill-treatment.236

The marginalization of ethnic minorities is a major issue in Botswana.

While Botswana premised its nation-building on over-emphasized ethnic

homogeneity, in fact, the ruling Tswana elite simply ignored the

heterogeneity that existed.237 In Botswana, as in many African countries,

borders were drawn in such a way that disparate ethnic groups were brought

together under the umbrella of a single nation. This delineation of borders

effectively split ethnic groups across national boundaries, including the

Ju/‘hoansi people in the northwest of Botswana, whose population stretches

across the Namibian border, and the many Setswana speakers who live



234 SAUGESTAD, supra note 12, at 31, 40, 93.

235 See supra notes 18–22 and accompanying text.

236 U.N. Comm. on the Elimination of Racial Discrimination [CERD], Consideration of Reports

Submitted by States Parties Under Article 9 of the Convention, Concluding Observations:

Botswana, ¶ 12, U.N. Doc. CERD/C/BWA/CO/16 (Apr. 4, 2006) [hereinafter CERD, Consideration

of Reports Under Article 9].



within the borders of South Africa.238 Despite frequent government claims to

the contrary,239 there is significant ethnic diversity in Botswana.240 The

Tswana simply comprise a critical mass and often control perceptions of this

diversity.

Botswana has enjoyed some measure of improvement in the

representation of minority groups. In fact, members of ethnic groups not

officially recognized by law, such as members of the Kalanga and Bakalagadi

ethnic groups, often participate in the government.241 In 2006, twenty-three

minority members held seats in the sixty-one-seat parliament, ten held seats

in the twenty-seat cabinet, and five were represented in the High Court.242

However, these groups often are forced to toe the line of the Tswana political

leaders and Chiefs in order to maintain their posts.243 For this reason, the

presence of representatives from minority groups in government positions

has not led to better representation of the interests of those minorities.244 The

GOB has failed in many regards to protect the rights of Botswana‘s

indigenous groups, and there is often little recourse for these groups to seek

justice within their own national borders.

G. Human Rights in General

On the human rights front, in general, Botswana suffers a number of

shortcomings. While Botswana is a party to many international treaties and

conventions, it often shows only limited support for the human rights

agreements that it has signed and ratified.245 For example, it never submitted

a state report to the African Commission on Human and Peoples‘ Rights as

required by Article 62 of the African Charter on Human and People‘s

Rights.246 The Commission condemned this failure in a 2005 visit to the

country.247 In addition, the country failed to submit a report to the Committee

238 Id. at 199.

239 Id. at 68–69.

240 Id.


242 Id.

243 Id.

244 Id.

245 See LONE LINDHOLT, QUESTIONING THE UNIVERSALITY OF HUMAN RIGHTS: THE AFRICAN

CHARTER ON HUMAN AND PEOPLES‘ RIGHTS IN BOTSWANA, MALAWI AND MOZAMBIQUE 247 (1997).

246 African [Banjul] Charter on Human and Peoples‘ Rights, June 27, 1981, OAU Doc.

CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982); see AFR. COMM. ON HUMAN AND PEOPLE‘S RIGHTS,

MISSION REPORT TO THE REPUBLIC OF BOTSWANA (2005), available at http://www.achpr.org/

english/Mission_reports/mission%20report_Botswana.pdf (noting Botswana did not submit a

report).

247 AFR. COMM. ON HUMAN AND PEOPLE‘S RIGHTS, supra note 246, at 10.


Against Torture.248 The Committee on the Elimination of Racial

Discrimination (―CERD‖) lamented the fact that Botswana‘s constitution and

domestic law ―do not seem to respond fully to the requirements of the

Convention.‖249 It noted, for example, that Article 15 of the constitution

permits derogations from international obligations prohibiting racial

discrimination.250 CERD also noted that Botswana has various laws,

including the Chieftainship Act and the Tribal Territories Act, which

recognize only the Tswana people, and not other groups in the country.251

Therefore, CERD indicated that these laws and others violated the

Convention.252 It specifically found that the political system discriminated

against San people.253 Interestingly, in Attorney General v. Unity Dow, the

Court of Appeal of Botswana determined that citizenship laws allowing only

male citizens to pass citizenship status onto their children254 amounted to

sexual255 discrimination.256 The court poignantly noted, ―Botswana seeks to

avoid violating international law where possible.‖257 The court went to great

lengths to expound upon Botswana‘s image as a liberal democracy and its

248 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85.

249 Office of the U.N. Comm‘r for Human Rights [UNCHR], Concluding Observations of the

Committee on the Elimination of Racial Discrimination: Botswana, ¶ 298, U.N. Doc. A/57/18,

paras. 292–314 (Aug. 23, 2002), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.57.18,

paras.292-314.En?Opendocument.

250 Id. ¶ 300.

251 Id. ¶ 301.

252 Id.

253 Id.

254 See generally Bugalo Maripe, The Recognition and Enforcement of Children’s Rights in

Domestic Law: An Assessment of the Child Protection Laws in Botswana in Light of Prevailing

International Trends, 9 INT‘L J. CHILD. RTS. 339, 355 (2001) (discussing children‘s rights in

Botswana in contrast to the emerging body of international children‘s rights laws).

255 See, e.g., HUMAN RIGHTS WATCH, SECOND CLASS CITIZENS: DISCRIMINATION AGAINST WOMEN

UNDER BOTSWANA‘S CITIZENSHIP ACT (1994), available at http://www.hrw.org/en/reports/

1994/09/01/second-class-citizens (discussing the GOB‘s discrimination against women in light of

a past court order declaring such discrimination unconstitutional and violative of international

law); Kabelo K. Leboste, Bail and Punishment in Rape Cases: The Situation in Botswana, 6 E.

AFR. J. PEACE HUM. RTS. 115 (2000); Godisang Mookodi, Male Violence Against Women in

Botswana: A Discussion of Gendered Uncertainties in a Rapidly Changing Environment, 8 AFR.

SOC. REV. 118 (2004); Godisang Mookodi, The Dynamics of Domestic Violence Against Women in

Botswana, 18 PULA: BOTS. J. AFR. STUD. 55 (2004).

256 See generally Simon Coldham, Human Rights in Botswana: Unity Dow v. Attorney General, 36

J. AFR. L. 91, 91 (1992) (discussing citizenship and discrimination under the Botswana

constitution, citizenship law, and a recent case interpreting the interaction of these legal

regimes); Reem Bahdi, Globalization of Judgment: Transjudicialism and the Five Faces of

International Law in Domestic Courts, 34 GEO. WASH. INT‘L L. REV. 555 (2002) (exploring the

reasons that national court judges use international human rights law in their decisions).

257 Bahdi, supra note 256, at 555.


loyalty to the human rights agreements it has signed.258 In practice, the GOB

has not always lived up to this image.

The treatment of women and women‘s rights, which was the key issue in

the Unity Dow decision,259 is a tremendous problem in Botswana. Domestic

violence is pervasive, and few women hold political positions. In 2008, there

were only seven women in the sixty-one seat parliament, five female cabinet

ministers out of twenty, three female judges out of thirteen on the High

Court, and two women among the fifteen members of the House of Chiefs.260

The GOB has yet to enact many of the treaties it has signed into domestic

law, including the International Covenant on Civil and Political Rights

(―ICCPR‖), the Convention on the Rights of the Child, and the Convention

Against Torture. In this regard, the U.N. Human Rights Committee (―HRC‖)

noted that the ICCPR is ―not directly applicable‖ in domestic law, and that

the laws of the country do not contain several of the rights contained in the

Convention.261 It also noted the numerous reservations Botswana entered

with respect to the ICCPR.262 The Committee on the Rights of the Child has

recommended that Botswana withdraw its reservation to Article 1 of the

Convention on the Rights of the Child263 and make the Convention applicable

in Botswana.264 In 2008, the HRC also expressed its concern that the

exceptions to the Botswana constitutional right to be free from discrimination

did not comply with Articles 2, 3, and 26 of the ICCPR.265 CERD noted that

the country was reluctant to recognize the existence of indigenous peoples on

its territory and urged Botswana to respect and protect the existence and

258 Id. at 593.

259 Attorney-General v. Unity Dow, 1992 BLR 119 (Bots.).

260 Human Rights Council, Working Group on the Universal Periodic Review, Summary Prepared

by the Office of the High Commissioner for Human Rights, in Accordance with Paragraph 15(c) of

the Annex to Human Rights Council Resolution 5/1, ¶ 15, U.N. Doc. A/HRC/WG.6/3/BWA/3,

(Sept. 15, 2008).

261 Human Rights Comm., Consideration of Reports Submitted by States Parties Under Article 40

of the Covenant, ¶ 6, U.N. Doc. CCPR/C/BWA/CO/1 (Apr. 24, 2008) [hereinafter Human Rights

Comm., Consideration of Reports].

262 Id. ¶ 14.

263 Convention on the Rights of the Child, Nov. 20, 1989, 28 I.L.M. 1456, 1577 U.N.T.S. 3,

available at http://www2.ohchr.org/english/law/crc.htm. Article 1 of the Convention provides that

―[f]or the purposes of the present Convention, a child means every human being below the age of

eighteen years unless under the law applicable to the child, majority is attained earlier.‖ Id. art.

1.

264 Comm. on the Rights of the Child, Consideration of Reports Submitted by States Parties Under

Article 44 of the Convention, Concluding Observations: Botswana, ¶ 9, U.N. Doc.

CRC/C/15/Add.242 (Nov. 3, 2004).

265 Human Rights Comm., Consideration of Reports, supra note 261, ¶ 9.


cultural identities of all ethnic groups, as well as to review its policy on

indigenous peoples.266

Botswana‘s stance on the death penalty also continues to be problematic,

especially in light of its mandatory imposition for certain crimes and the

country‘s low rate of commutations.267 The HRC criticized the fact that

Batswana laws do not define torture, and suggested that the GOB make

torture a grave criminal offense and provide reparations to victims of

torture.268 Such measures are especially important due to reports of torture

and the impunity of security services.269

Botswana‘s prisons also received criticism from the HRC, specifically in

regard to overcrowding, the large percentage of persons awaiting trial, and

the length of detention before trial.270 The HRC suggested that the state

increase its efforts to ensure that prisoners are kept in humane and dignified

conditions by ensuring healthy conditions and adequate access to healthcare

and food.271 The HRC also condemned Botswana‘s laws on corporal

punishment.272

The Office of the Ombudsman in Botswana,273 which is a public, extra-

ministerial institution, was established by the Ombudsman Act of 1995.274 It

is charged with investigating ―maladministration‖ and making

recommendations to the government.275 However, the effectiveness of the

office is questionable.276 In his meeting with the African Commission,

Ombudsman Lethebe Maine claimed to have received very few complaints

thus far, save a few protestations of human rights abuses by prisoners.277 The

266 CERD, Consideration of Reports Under Article 9, supra note 236, ¶ 9.

267 Human Rights Comm., Consideration of Reports, supra note 261, ¶13.

268 Id. ¶ 15.

269 See Isaiah Morewagae, Botswana: Police Chief Unaware of DIS Torture Report,

ALLAFRICA.COM, Feb. 6, 2009, http://allafrica.com/stories/200902080020.html; see also Torture of

Bushmen—Shocking Details, SURVIVAL INT‘L (London), Oct. 31, 2007, http://www.survival

international.org/news/2572.

270 Human Rights Comm., Consideration of Reports, supra note 261, ¶ 15.

271 Id. ¶ 17.

272 Id. ¶ 18.

273 Botswana Office of the Ombudsman, http://www.ombudsman.org.bw/ (last visited Feb. 1,

2010).

274 Charles Fombad, The Enhancement of Good Governance in Botswana: A Critical Assessment of

the Ombudsman Act, 1995, 27 J. S. AFR. STUD. 57, 57 (2001) [hereinafter Fombad, Enhancement

of Good Governance in Botswana].

275 AFR. COMM. ON HUMAN AND PEOPLE‘S RIGHTS, supra note 246, at 17.

276 See id.

277 Id.; see also Tirelo Modie-Moroka, Vulnerability Across a Life Course: An Empirical Study:

Women and Criminality in Botswana Prisons, 18 J. SOC. DEV. AFR. 145 (2003) (studying the

http://allafrica.com/botswana/


office has a limited mandate. As a result, it faces criticisms of being weak,

ineffective, and without the resources to function effectively.278 Furthermore,

the President appoints the Ombudsman in consultation with the leader of the

opposition party, and the government funds the position.279 Especially where

governments are guilty of human rights violations, a presidential appointee

is unlikely to be impartial. While acknowledging the Office of the

Ombudsman, the HRC found that there was no national human rights

institution, and therefore called on Botswana to establish such an institution

in accordance with the Paris Principles.280

H. HIV/AIDS

Extremely high levels of HIV/AIDS are an issue of major concern in

Botswana.281 The country has one of the highest percentages of HIV-infected

persons in the world.282 At its peak in 2003, the level may have reached

nearly 38 percent of the population.283 Although the birth rate is now 2.289

percent,284 past negative population growth (estimated at negative 0.4

percent in 2006)285 suggests that the population was shrinking as a result of

HIV/AIDS. In 2006 Botswana‘s life expectancy was one of the lowest in the

world—ranked 223 overall—due to the impact of HIV/AIDS.286 It has now

risen to 61.85 years (61.72 years for men and 61.99 years for women), which

gives it a ranking of 178 out of 223 nations globally.287 Botswana also suffers

relationship between women‘s ―life events‖ and their subsequent criminal behavior, linking

poverty and prisoner status). Overcrowding in prisons and extensive pre-trial waiting periods

adversely affect the rights of detainees. See JEREMY SARKIN, HUMAN RIGHTS IN AFRICAN PRISONS

(2008).

278 BBC Focus on Africa Magazine, BBC NEWS, Apr. 1, 2008, available at http://news.bbc.co.uk/

2/hi/africa/7297374.stm.

279 Fombad, Enhancement of Good Governance in Botswana, supra note 274, at 57.

280 Human Rights Comm., Consideration of Reports, supra note 261, ¶ 8. The Paris Principles

emerged on Oct. 7–9, 1991, from a workshop regarding the role, status, and function of the

National Human Rights Institutions, and were adopted by a U.N. Human Rights Commission

Resolution in 1992 and the U.N. General Assembly in 1993. Id.

281 Tim Allen & Suzette Heald, HIV/AIDS Policy in Africa: What Has Worked in Uganda and

What Has Failed in Botswana?, 16 J. INT‘L DEV. 1141, 1143 (2004).

282 Id.; see also Peggy G. Ntseane & Julia Preece, Why HIV/AIDS Prevention Strategies Fail in

Botswana: Considering Discourses on Sexuality, 22 DEV. S. AFR. 347 (2005).

283 THE NAT‘L AIDS COORDINATING AGENCY, BOTSWANA 2003: SECOND GENERATION HIV/AIDS

SURVEILLANCE 1 (2003), available at http://www.achap.org/downloads/Sentinel.pdf.


285 KAREN A. STANECKI, THE AIDS PANDEMIC IN THE 21ST CENTURY: THE DEMOGRAPHIC IMPACT

IN DEVELOPING COUNTRIES 2 (2000), available at http://www.masosha.org/?q=system/files/

censusfinal.doc; Index Mundi, Botswana Life Expectancy at Birth, http://www.indexmundi.com/

botswana/life_expectancy_at_birth.html (last visited Feb. 1, 2010).

286 Index Mundi, supra note 285.



from a culture of stigmatization of infected persons, a prejudice that only

makes the problem more difficult to address.288 Local myths, detailing how

one can ―cure‖ oneself of the disease, actually spread it further.289 In addition

to the humanitarian crisis it causes, the HIV/AIDS epidemic in Botswana

merits great economic alarm as the current rate of infection, and the number

of deaths it portends, could leave too few people to run the growing economy

in future years.

I. Diversifying the Economy

The need to diversify the economy looms large in Botswana.290 Diamonds

and beef are the country‘s only significant exports, yet both face threats to

their long-term existence.291 Miners will eventually cease to find new

diamond sources. Further, the international media can easily affect the

diamond market—which depends heavily on public perception—as human

rights messaging, such as the ―conflict diamonds‖ campaign, have

exhibited.292 Severe overgrazing and a lack of water sources in most parts of

the country threaten the cattle industry, as does the risk of disease and its

effects on market preferences.293 Furthermore, beef exports make up a mere

3.1 percent of export earnings, and the diamond industry subsidizes the

cattle industry.294

In May 2006, DeBeers and the GOB signed a deal that created the

Botswana Diamond Trading Company (―BTDC‖) in the hope that Botswana‘s

diamond income would remain secure for decades.295 The deal included the

creation of four cutting factories in Botswana, aiming to increase the tiny

portion of the labor force (1.5 percent) that the diamond industry employed at

that time.296 These factories will allow a Batswana work force to cut and

polish diamonds. Yet, despite the industry‘s profitability and the additional

labor the BTDC employs, the reality is that the diamond industry is capital-

288 See Gobopamang Letamo, HIV/AIDS-Related Stigma and Discrimination Among Adolescents

in Botswana, 19 AFR. POPULATION STUD. 191 (2004) (determining the factors that lead to

stigmatization and discrimination against young people with HIV/AIDS in Botswana).

289 Mike Earl-Taylor, HIV/AIDS, The Stats, the Virgin Cure and Infant Rape, SCI. AFR., Apr.

2002, http://www.scienceinafrica.co.za/2002/april/virgin.htm.

290 See Thad Dunning, Resource Dependence, Economic Performance, and Political Stability, 49 J.

CONFLICT RESOL. 451, 464 (2005); see also GOOD, supra note 10, at 30–31.

291 Botswiri O. Tsheko, A Thinly-Based Economy: The Discussion of Impacts of Diamonds and

Beef Industries on the Botswana Economy, 6 J. SUSTAINABLE DEV. AFR. 1, 19 (2004).


293 Darkoh & Mbaiwa, supra note 225, at 160–61.

294 Id. at 151.

295 New Diamond Deal to Be Signed in Botswana, BUS. REP. (Johannesburg), May 22, 2006,

available at http://www.busrep.co.za/index.php?fSectionId=603&fArticleId=3256946.

296 Id.


intensive and requires limited labor.297 The government will need to do much

more with future diamond revenues and focus on economic diversification to

address issues of poverty, unemployment, and income inequality.298

Botswana must establish alternative industries to replace the role that

cattle and diamond exports play in the economy. The primary alternative

thus far has been a policy of high-cost, environmentally low-impact tourism299

that seeks to preserve Botswana‘s environment for the long term. This policy

has served the country well,300 but it is not enough. In addition, the

government has begun to encourage a growing manufacturing sector;

however, manufacturing is nowhere near the size necessary to replace

diamond revenues.301

J. Unemployment

High levels of unemployment also threaten the ―African Miracle.‖ At 23.8

percent in 2004, Botswana was certainly not at the top of the list among

African countries,302 but unemployment was high enough to be of great

concern.303 Aside from indicating wealth inequities, high unemployment can

eventually lead to civil unrest.304

A severe lack of workers‘ rights makes this situation worse. According to

Ian Taylor, the ability of workers to strike is extremely limited, the

registration of new unions is nearly impossible, and a general strike is

entirely infeasible in Botswana.305 He concludes that ―profound restrictions—

enshrined in law—limit the potential of workers to organise effectively and

exercise their democratic right to withhold their labour.‖306 Interestingly,

Taylor points out that the working class is a likely sector of society from


298 See generally Kenneth Good, Resource Dependency and Its Consequences: The Costs of

Botswana’s Shining Gems, 23 J. CONTEMP. AFR. STUD. 27 (2005) (dealing with Botswana‘s

dependency on diamonds and the costs thereof).

299 Joseph E. Mbaiwa, Enclave Tourism and Its Socio-Economic Impacts in the Okavango Delta,

26 BOTS. TOURISM MGMT. 157, 157 (2005).

300 Erdener Kaynak, Tourism Market Potential Analysis in Botswana: A Delphi Study, 45 J.

TRAVEL RES. 227, 227 (2006).

301 Tsheko, supra note 291, at 19.

302 Index Mundi, Botswana Unemployment Rate, http://www.indexmundi.com/botswana/unempl

oyment_rate.html (last visited Feb. 1, 2010).

303 But see id. (indicating that the current unemployment rate is 7.5 percent, based on 2007

figures).

304 Mica Panic, Reconstruction, Development and Sustainable Peace, 4 RUSS. IN GLOBAL AFF. 176,

178–79 (2006), available at http://eng.globalaffairs.ru/region-economics/numbers/14/1009.html.


306 Id.


which political opposition to the BDP could materialize.307 Making it difficult

for the working class to mobilize through unions helps to suppress that

threat. Therefore, GOB control of the labor movement reflects a possible

political strategy. The employment situation in Botswana is a potential issue

for political discourse, the benefit of which could be its ability to create a

more active civil society.

K. ―Negative Peace‖

As Kenneth Good has said, modern Botswana represents a ―negative

peace.‖308 Simply put, the issues outlined above negate Botswana‘s touted

image of stability and growth. Admittedly, Botswana has been successful in

the post-colonial nation-building period in many ways, but it is certainly not

the beacon of democracy that it is often portrayed to be. ―Botswana has

combined high growth rates and visible ‗development,‘‖ Taylor writes, ―with a

structural autocracy that belies its benign image internationally.‖309 African

nations, when looking to Botswana as a progressive example, should

acknowledge these facts that tarnish the myth of the ―African Miracle.‖

VII. CONCLUSION

Since independence in 1966, Botswana has enjoyed much success,

especially in comparison to many post-colonial African nations. It has evolved

from one of the poorest countries in the world to a symbol of political

stability, economic growth, international investment, and development in

Africa.310 Thus, the international community has spent several decades

praising the country of Botswana for these achievements.

While these achievements deserve acknowledgement and respect,

Botswana has fallen short of its image as the ―African Miracle‖ in many

ways. The GOB has failed to address many issues of great concern to a

country that could be emblematic of what is possible in Africa. These include

severe inequality, government aversion to criticism, limitations on civil

society and the media, the dominance of a single political party, extensive

executive authority, unemployment, the HIV/AIDS epidemic, and the

marginalization of minority groups, among others. With regard to indigenous

issues, the government has used its policy of non-racialism to prove that it is

highly sensitive to racial issues and that it strives to provide equal rights to

all Batswana. However, the condition of various groups of its people exposes

that this image is a distortion. From the minority groups‘ vantage points, it

seems as though non-racial policies allow the GOB to marginalize the

307 Id.





concerns of minorities in a Tswana-dominated society. To various degrees,

many of Botswana‘s minorities are suffering.

On a number of other fronts, Botswana‘s human rights record is wanting.

The GOB has not incorporated into domestic law several of the human rights

treaties that Botswana has ratified. The government has failed to submit

many of the reports required by these agreements. There is no national

human rights institution, thus recourse for citizens is not what it ought to be.

The Office of the Ombudsman is not playing such a role. Due to this void, an

institution is needed that can promote and protect the rights of all the

citizens of the country.

Botswana cannot serve as an example for Africa unless it confronts these

fundamental failures. The country‘s stability and available capital give it the

capability to address some of these tough problems. Botswana has the

resources required to truly promote a democracy based on the rule of law and

human rights. Until the country takes action to address these essential

shortcomings, the international community should refrain from referring to

Botswana as the ―Miracle of Africa.‖ For Africa to truly succeed, both African

nations and the rest of the world must set the bar higher.

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