THE SILENCE OF THE LAW: WHEN THE COURTS FAIL TO REFLECT THE MORAL CONCIOUS OF THE PEOPLE

By tlotlego abram

INTRODUCTION

President Advocate Duma Boko’s overturning of the court’s judgements must not be misinterpreted as an act of undermining the concept of the rule of law in favour of political expediency but an act, ethical, morally righteous in its nature and in all existing structures of objective and validity assessment, necessitated by a restoration of human dignity and cultural continuance.  His assertions by record of his first state of nation address say:

“10th of December 2024 the body of Pitseng Gaoberekwe will be buried in the central Kalahari game reserve. His ancestral Home. Your government that under color of court judgements denied him dignity of a burial in his ancestral land has now taken the bold step of abandoning all those judgements and burying him. In this ceaseless quest to uphold dignity we are unshakeable.”

This utterance, with his voice reverberating from within the echoic parliamentary chambers to the Gaoberekwe family and the nation of Botswana was a message that held the weight of a promise fulfilled. It preconized that Gaborekwe, once held hostage by the sterile chambers of legality given to the mortuary to imprison for two years, will be laid to rest in the ancestral heartland of his clan on world Human Rights Day. This is no ordinary arbitrament. This article explores the failure of the courts to reflect the moral conscious of the people.

Historical context

Basarwa encountered, for centuries, marginalization and dispossession, with their deportation from the Central Kalahari Game Reserve standing as an emblem of injustice. Its establishment of 1961 was initially mandated for the protection of the indigenous way of life and the region’s unique multifariousness. However, policies by government prioritised development and resource preservation with an ultimate outcome of Basarwa being displaced. This removal severed their spiritual and cultural ties to the land, reducing their central land to “just but” a geographic entity controlled by the states policy. This historical excursion makes providence of context by which we can view the recent burial dispute.

Futher Thought  

It would seem, in this controversial happening between “rights” older than the laws themselves, presents two factors to be in contradiction, the rigidity of legal frames works and the moral imperative of justice. The question that challenges the silence of the law in its failure to reflect the moral conscience of the people is this, should the law continue to uphold rigidity when it conflicts the moral conscience of the people, in this case Basarwa? How does the law serve justice when its processes seem to outpace the very lives it is meant to protect?

It is an unchallengeable truth that laws are meant to apply equally to all though when divorced from their social and historical contexts they reinforce existing disparities. In this particular matter, the courts, constitutionally so, may have acted in accordance with statutes documents governing land use and burial rights, but this rigid adherence to the law, without mercy and consideration of cultural moral obligations denied the family their deeper and more profound entitlement, the very right to cultural continuity and dignity. By refusing to consider the broader implications of their ruling, the courts treated the law as an end in itself, rather than the vey platform for the realisation of justice. This legal formalism becomes especially and highly problematic when dealing with marginalized communities whose historical dispossession was itself codified by earlier legal frameworks.

If the law is indeed a social fact with a moral intuition, it means by its primary mandate, while it is to invoke and sustain order, its goal is to be a healer of conflict. However, the invocation of order is in the accommodation of societal values which regulate human life. Therefore, to some extent, the courts in reflecting on the moral conscious of the people, might have to find themselves dematerialising their legal systems to stimulate representation of the moral and spiritual obligation established as the necessary end derived from the necessary act of allowing the burial.

Conclusion

It is with this declaration, that Advocate Boko sets in motion a historic act of restitution, one that challenges not court judgements but the very foundation and thought of how justice is perceived in Botswana. The relation of morality to law is unquestionable and therefore all laws, especially those that invoke conversations such as those of moral obligations must be subjected to moral scrutiny. Justice is in its nature a moral concept which is meaningless outside the area of morality.