DEPARTMENT OF LAW

LAW 442 (social security Law)

CRTICALLY DISCUSS THE CONSTITUTIONAL AND THEORITICAL UNDERPININGS

OF SOCIAL SECURITY AND SOCIAL PROTECTION IN BOTSWANA

STUDENT: TUMISANG DANIEL HULE (200900300)

LECTURER: MR. B. KABUMBA

DATE: 27/ 02/2013

INTRODUCTION
There is no universally accepted definition of social security. While many authors stress the
role of social security in maintaining income during periods of financial need, others broaden
its meaning to include the provision of medical care, housing, and employment by a variety
of social service organisations. In a document published in 1942, ILO defined social security
as, “the security that society furnishes through appropriate organisation against risks to which
its members are exposed.” These measures must be provided by the STATE and must be
made available to those require assistance subject to defined conditions of eligibility. i The
ILO`s social security (minimum standards) convention NO 102 of 1952, which is widely used
as a formal definition of social security divide social security into nine categories: they
include provision of medical care, sickness benefits, unemployment benefit, old age benefit,
employment injury benefit, family benefit, maternity benefit, invalidity benefit and survivors
benefit. Lastly, The SADC CODE defines social security as “public and private, or mixed
public and private measures, designed to protect individuals and families against income
insecurity caused by contingencies such as unemployment, employment injury, maternity,
sickness, invalidity, old age and death”.ii

Government of Botswana provides a wide range of services for families and children. These
services are aimed at reducing poverty as well as providing a social safety net for individuals,
groups and families. These includes: old age pension, orphan care program, World War II
Veterans, Labour Based Drought Relief Program, Supplementary Feeding for Vulnerable
Groups and Program for Destitute persons.iii

The purpose of this paper is to discuss the constitutional and theoritical basis for provision of
social security schemes by the government of Botswana. In order to achieve this task, I will
first begin by briefly assesssing the constitutions of few selected countries, for comparartive
reasons. The Constitution of Botswana will be fully analysed with respect to socio economic
rights especially social security.

CONSTITUTIONS OF OTHER COUNTRIES

As a starting point, the South African Constitution enshrines the right to social security in
Section 27 (1)(c), which stipulates that “everyone has a right to have access to social
security, including, if they are unable to support themselves and their dependants, appropriate
social assistance”. The constitution of Kenya, just like the constitution of South Africa, is
very clear on social security. Section 43(1) provides that: Every person has the right—
(a) to the highest attainable standard of health, which includes the right to health care
services, including reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of sanitation;
(c) to be free from hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security

The constitution of India, unlike the constitution of South Africa and Kenya does not provide
for the right to social security. It does not provide for socio-economic rights at all. However,
the Supreme Court has in several occasions used civil and political rights under the
constitution to imply socio-economic rights. Rights such as the ‘the right to life, dignity as
well as the right to non- discrimination have been used to imply ESCRs. Bonolo Dinokopila iv,
in his articlev discusses several cases in India where the court implied socio-economic rights
from political and civil rights guaranteed under the Constitution. One of them is the case of
Paschim Banga khet Mazdoor Samity v State of Bengalvi. The Indian Supreme Court held
that failure on the government hospitals to provide timely treatment to a person in need of
such treatment was a violation of the right to life. Further, that providing medical facilities for
the people is an essential obligation of the state and that the obligation could not be avoided
by pleading financial constraints. This order came after an agricultural labourer who, when
taken to as many as seven government hospitals in Calcutta as a result of suffering severe
head injuries, was turned away simply because there were no empty beds to admit him. In
Unni Kkrishnan J.P v State of Andrha Pradeshvii, the court held that the right to education is
part of the right to life enshrined under the Indian Constitution and on that basis a child was
entitled to free education up to the age 14 years.

From the three Constitutions discussed above, it is clear that the right to social security is
provided for in the constitutions with respect to Kenya and South Africa. India on the other
hand is peculiar. Even though, the right to social security is not enshrined in the Constitution,
the Indian Court has not shied away from protecting the socio economic rights. The Indian
citizens enjoy socio economic rights which are enforced and protected by the courts, as if
they are provided for in the Constitution. Does the Constitution of Botswana explicitly
provide for the right to Social security just like the Kenya and South African Constitutions? If
no, do the courts protect socio economic rights by employing the expansive approach used by
Indian courts?

BOTSWANA

Botswana’s Constitution makes provision- under its Chapter II- for the protection of rights.
Section 3 provides that every person is entitled to the rights and freedoms under the
Constitution without any discrimination on the grounds listed under the Constitution. Specific
rights are provided for under sections 4 to 15 of the Constitution. The rights under the
chapter include the right to life, the right to personal liberty, protection from slavery and
forced labour, protection from torture and other cruel, inhuman, or degrading treatment or
punishment, freedom of expression, protection from discrimination, the right to privacy and
protection from deprivation of property, freedom of conscience as well as protection of the
law.

Botswana is party to several international and regional human rights instruments. These
include the International Covenant on Civil and Political Rights (ICCPR), and the African
Charter on Human and Peoples’ Rights (ACHPR). Botswana is neither party nor signatory to
the ICESCR.viii The constitution of Botswana is silent on the status of such international
instruments. However, due to the fact that Botswana is a dualist state, treaty provisions does
not become part of the laws of the Botswana unless specifically incorporated into the laws of
Botswana through an Act of parliament. ix As such treaties creating rights and obligations
ratified by Botswana do not create rights and obligations enforceable by the courts
immediately upon ratification.x

The Constitution of Botswana does not make any reference to socio economic rights or the
right to social security and as such socio-economic rights are not given the same protection as
civil and political rights under the Constitution. In the few cases that have reached the Courts,
our judges have declined to follow the expansive approach employed by the Indian courts. To
illustrate this point I will discuss the two cases involving socio-economic rights in
Botswana Sesana and Matsipane.
.
 Sesana & Others v Attorney Generalxi

The applicants applied for an order declaring that the termination by the government of basic
services to the applicants in the Central Kgalagadi Game Reserve was unlawful and
unconstitutional and that the government was obliged to restore the services and further that
the applicants whom the government had forcibly removed from the Central Kgalagadi Game
Reserve after the termination of services to them, had been unlawfully despoiled of their land
and that such land should be restored to them. The basic and essential services forming the
crux of the request of the said order were the provision of drinking water on weekly basis, the
maintenance of the supply of borehole water, the provision of rations to registered destitute,
the provision of rations for registered orphans, the provision of transport for the Applicants’
children to and from school and the provision of healthcare to the Applicants through mobile
clinics and ambulance services.

The decision of the Court on the termination of services in the CKGR by the government was
to the effect that the termination of such basic and essential services by the Government was
neither unlawful nor unconstitutional. Hence, the government was under no obligation to
restore the provision of such services. The decision of the Court was largely based on the
principles of legitimate expectation under administrative law. On the contrary, Justice Unity
Dow in her minority judgment concluded that services terminated were indeed basic and
essential for the survival of the Applicants. Hence, the termination endangered life and was
an infringement of the constitutionally guaranteed right to life.

Matsipane Mosetlhanyane and Others v The Attorney-General xii

The applicants in the case sought, among others, an order declaring that the refusal by the
government to permit them to recommission, at their own expense, the borehole in the
CKGR, was unlawful and unconstitutional. The applicants relied on section 7 of the
Constitution, which provides that ‘no person shall be subjected to torture or to inhuman or
degrading punishment or other treatment’. The applicants argued that when melons are
scarce, they spend a lot of time looking for roots from which to extract a few drops of water,
and that a lack of water makes them prone to sickness. They suffer from constipation,
headaches or dizzy spells. They lack energy and spend many hours in their huts. The court of
Appeal accepted the applicants argument and came to the conclusion that the refusal by
government to permit them to recommission borehole contravened section 7 of the
Constitution.

The conclusion that can be drawn from these two cases is that the position in Botswana is that
the right to social security is not protected under the Constitution and that the courts may not
purposively interpret the constitution to accommodate them. The next question would then be
why the Government of Botswana provides so many social security schemes when it is not
obliged to do so under the Constitution?

Social security has always been an integral part of Tswana culture. Prior to independence in
1966, Botswana relied on traditional systems of support. This was in order to address issues
of poverty and destitution. The extended family was seen as a social security regime when
members went through life cycle crisis. The family provided a window of support during
difficult time and children were seen as a social safety net when parents became sick disabled
or old. There were also other forms of social security arrangements. One of them is Mafisa.
The mafisa system allowed the destitute poor to look after the rich people’s cattle and in
return to have access to these cattle. While taking good care of these livestock recipients had
access to free milk, meat, and draught power to transport water, firewood and harvest. Others
received some cattle as part payment for their labour.xiii

When we got independent, the Government strategy for social development was founded on
four national principles of Democracy, Self Reliance, Development, and Unity. These
principles are expected to lead to the attainment of planning objectives of Sustained
Development, Rapid Economic Growth, Economic Independence, and Social Justice. xiv
Further, in 1997, Botswana published a document now commonly known as “Vision 2016”:
A long Term Vision for Botswana. With respect to poverty, the document pronounces that
Botswana will be “a compassionate and caring society, offering support and opportunity to
those who are poor, including all people in the benefits of growth”. xv The Vision document
projects that by the year 2016, efforts will have been made to eradicate absolute poverty so
that no part of the country will have people living with incomes below the poverty datum
line. With specific reference to social security, Vision 2016 states:
“All people will have access to productive resources regardless of ethnic origin, gender,
disability, or misfortune. Botswana will have succeeded in helping people to escape from the
poverty trap…. There will be a social safety net for those who find themselves in poverty for
any reason. This will go hand in hand with the provision of good quality social security, in
partnership with the private sector and NGO’s,aimed at vulnerable groups such as the elderly,
disabled, orphans and terminally ill”.xvi
Over and above the fact that from time immemorial Batswana have always had social
security measures, the four national principles and vision 2016, Botswana has an obligation
under the international arena to provide this schemes. Botswana is signatory to many treaties
that obligates her to provide minimum essentials such as food, shelter, education, health care
etc. Yes! The treaties may not have a force of law in Botswana because they are not ratified,
but Botswana still has this obligation under international law which she must fulfil.

CONCLUSION
There is no doubt that the role of the State in providing some form of social security in
Botswana is comparatively better in the SADC region and the whole of Africa. However, the
current state of not having the right to social security and other socio economic rights
guaranteed in the Constitution is not ideal. At the moment, these social security measures are
provided at the “mercy” of the Government and as we have seen in the Sesana case, the
government can willy nilly stop them. Therefore, it is clear that we need Constitutional
reform. For a country that is hailed as the shining example of democracy- which is respected
for its good record in terms of rule of law, respect for human rights, democracy and good
governance, we have been surpassed by new democracies in Africa such as Kenya and South
Africa which provide for the right to social security and other socio economic rights in their
respective constitutions.
i
Midgley, J. (1984) “Social security, inequality and the third world”, Pitman Press Ltd, Bath, Avon @ pg 81
ii
SADC 2004
iii
Botswana Federation of Trade Unions (BFTU), (2007) “Policy position paper on social security and social protection in
Botswana”
iv
Doctoral Candidate, Centre for Human Rights, University of Pretoria, South Africa; Lecturer, Department of Law,
University of Botswana
v
Dinokopila, B.R., {2011), “The enforcement of socio economic rights in Botswana and the case of Basarwa in the
CKGR : A working paper
vi
(1996) 4 SCC 37.
vii
(1993) 1 SCC 645, at 730.
viii
Ibid page 11
ix
Section 24 of the interpretation Act
x
See Good v AG, Dow V AG, BLLAWU V DPSM, Springbok investment V Angola
xi
2002 1 BLR 452 (HC).
xii
CALB–074-10 (unreported).
xiii
Solo, K., “social security in Botswana, from historical evolution to policy and law”, a presentation paper
xiv
NDP 8, 1997-2002: 85
xv
Presidential Task Group, 1997:8
xvi
BFTU, Ibid