CONTENTS INTRODUCTION TERMS SOCIAL SECURITY AND SOCIAL PROTECTION THEORETICAL AND CONSTITUNAL UNDERPINNINGS OF SOCIAL SECURITY AND

SOCIAL PROTECTION IN BOTSWANA CONCLUSION AND RECOMMENDATIONS

INTRODUCTION One of the mechanisms that enables people to escape destitution is social security. It meets peoples basic needs when their income stream has stopped, been disrupted or has never adequately developed. This paper seeks to briefly describe the approaches which exists in the use of the terms social security and social protection which are geared towards address risk and vulnerability . It will examine the Contitution of Botswana as to its role with regard to social security and the theoretical basis for social protection and security in Botswana. Finally, it will submit the lessons which Botswana may get from the comparative analysis of social security systems pertinent to addressing issues of security.

SOCIAL SECURITY AND SOCIAL PROTECTION

Scholars opine that the distinction between social protection and social security leaves less room for salient distinction of the concepts[1]. It is trite to summon the guiding tool pioneed by ILO[2]which has received universal recognition definiting of social security as the protection which society provides for its members through a series of public measures against economic and socio distress that otherwise will be caused by stoppage or substantial reduction of earnings resulting from the sickness, maternity, employment injury, unemployment, invalidity, old age and death, and the provision of subsidies for families with children .Social protection as a concept has also been defined in various ways. The general view is that social protection is a wider concept than and encompasses social security[3]. It is provided that Social protection is an agenda for reducing the vulnerability and risk of low-income households with regard to basic consumption and services.[4]

THE CONSTITUTIONAL FRAMEWORK IN BOTSWANA

It is an incontestable premise that the countrys constitution denotes supreme law of a country[5], and the recognition of the right to social security in the constitution of a country will usually mean that the right enjoys a greater level of protection than if it were simply incorporated in ordinary legislation. This right can be established by express constitutional provisions relating to social security and in Botswana The constitution of Botswana contains a bill of fundamental rights, containing political and civil rights which are commonly known as first generation rights. Since it was crafted as far back as 1966, it did not have socio-economic rights or second-generation rights, and it is socio economic rights where the right to social security is found.[6] It is argued that

Botswana has an absence of a rights based framework of the right to social security because of the gap in the constitution providing no right of social security[7]. However despite the narrow approach taken when construing the constitution without express terms , a wider approach in ascertaining the right to social security call for a broader interpretation of civil and political rights as a way of enforcing socio econominc rights like the right to social security[8]. Despite challenges[9], following a broad interpretation[10] of fundamental rights which is often invoked by Botswana High Court, such as the right to life, dignity, freedom from inhuman and degrading treatment, as well as the right to non-discrimination, one can imply socioeconomic rights[11]. The right to protection from torture or inhuman or degrading treatment under section 7 of the Constitution has been used to protect socio economic rights like right to water which has a close connection with right to social security and the two rights are both not inshrined in the bill of rights. The Court of Appeal of Botswana in Matsipane Mosetlhanyane & Others v The AttorneyGeneral of Botswana[12], had occation to enforce a socio economic right under section 7. The court when deciding that the government violated section 7 of the constitution against the appelants, held that denying the appellants their right to water amounted to degrading and inhuman treatment of the appellants. The court decision can be usede as authority when seeking to to shelter the right to social security benefits on the primise that their non proviosion amounts to degrading treatment, if they not provided by the state to those who are in vulnerable situation or in serious need, since their livelihood will be in the hands of the legislature which is responsible for ensuring good governance as prescribed under section 86 of the constitution[13]. In Peloewetse v The Permanent Secretary to the President and Others[14] at p 91 Amissah P made the following authoritative statement: 'In a democracy, the government of the people is for the people. Where conduct of the government on the face of it appears questionable, it is the right of the people to question it. Knowledge by a government that its actions are subject to question contributes to the promotion of good governance. Governments wield great power but also carry great responsibilities. And the law, in recognition of the difficulties which they encounter in the administration of a country, confers on them many privileges. Thus, the presumption omnia praesemuntur rite esse acta by which executive action is presumed right until rebutted by solid evidence. Displacement of the presumption is a burden which the challenger to executive action is made to bear. But the very fact that this presumption is made by the law in favour of government gives, by implication, a reciprocal expectation to the people it governs that when government acts, it acts correctly, and it should not take advantage of, or hide, its own mistakes behind a shroud of silence, when its actions are questioned.' It follows that good governance entails as giving priority to the needs of the poor and the rest of the population in ones country of rule[15]. Also human dignity which is at the centre of human rights and connected with the right under section 7[16] will also dictate that, the state protect human dignity so far as it covers human rights enven those not explicit in Botswana constitution since human dignity is about an individials self worth or feeling self regard[17]. In the Malawian case of Gable Masangano v Attorney-General[18], the High Court held that the right to human dignity requires the state to provide food, adequate clothing and medical services to prisoners, and in those terms it can be said that one can well claim his writes not provided for in the bill of rights under the notion of hman dignity which is inherent in right to protection from torture or inhuman or degrading treatment under section 7 of the Constitution. A wide interpretation of the right to life has received judicial notice in botswana where Justice Dow in her dissenting opinion in the Sesana case [19]held that the termination of services within the Reserve endangered life and was tantamount to a violation of the applicants right to life. The famous Tellis V Bombay Municipal Corporation [20] of India Supreme court has also held that, that alone which makes life liveable must be deemed to be an intergral component of the right to life, that if you deprive a person of his right to livelihood and you shall have deprived him of his life. It would appear that if a Motswana in a remote area has a serious case of poverty which could lead to poverty while he has for reasons of the remoteness, not been covered by some social security allowances or benefits dispenced by the state, one could argue that the state will have to assume responsibility to that individual since it is better placed to enhance the individuals life and thus protect it.

The right to equality in has also been applied to social security benefits. Here the right protects against discrimination in social security systems on prohibited grounds. The constitution of Botswana prohibits discrimination at section 15 sub 3 under race, tribe, place of origin, political opinions orsex. Discrimination may arise from the exclusion of persons aforementioned from eligibility for benefits already existing, or from the conditions that must be complied with in order to qualify for benefits. In the case of Ibrahima Gueye v. France[21], before the Human Rights Committee it was found that French legislation discriminated on the ground of nationality in that it afforded lower pensions to retired Senegalese soldiers of the French army than to French citizens in an otherwise equal position. Where one contributed to social insurance rights it has been held that a right over such insurance could be protected under the right to property, which is found in the constitution of Botswana at section 8. In Gaygusuz v. Austria, the European Court of Human Rights determined that a violation of article 14 of the European Convention (the right to nondiscrimination) had occurred in conjunction with article 1 of the First Protocol (the right to peaceful enjoyment of ones possessions). Mr. Gaygusuz, who was a legal resident in Austria, had received different treatment under the rules of the unemployment insurance fund he had been contributing to on the basis that he was not an Austrian citizen.

THEORITICAL STANDARDS OF SOCIAL SECURITY IN BOTSWANA

The government of Botswana has ever since 1966 independence been engaged in improving the livelyhoods of it citizens. It plays its role by involvement that it actually empowers a vulnerable groups in Botswana by addressing existing plights which may arise undue privilege or institutional advantage. National development plans always seek to address how poverty, risks rampant in the communities are too be contained[22]and such plans are guided by the four recent national principles of Democracy, Development, Self-reliance, Unity. The measures taken by the government intend to improve standard of living for Batswana by significantly improve among other things, enhanced productivity of the lab the labour force, through higher investment in education, training, health and sanitation[23], and in so doing providing a social security net. Government address problems of poverty and destitution by targeting the vulnerable and less fortunate members of the society through provision of cash transfers, food baskets, feeding schemes, shelter, labour based public works programmes as was said by Minister of Finance and Development Planning in the 2013 budget speech.The government has also took a step to increase allowances such as old age pensioners, World War II veterans and destitute persons, indicating a demonstration that Government is at least attempting to ensure that available resources are shared with those who are worse-off in our society. Notwithstanding the efforts voiced by the government one would wonder if they are realy sustainable and wherether they confer mere privileges or rights. This brings the point that they are not legitimated and given a status that confers on them benefits and protections by law[24]. Their very content and meaning is not defined in terms of laws of Botswana by statute but only policies which are non enforceable[25]. To the extent that these institutions distribute significant social goods, they should be monitored by the state without political interests which is common in Botswanas government landscape set by the ruling party which uses its primary duties as a state as campaign tools[26]. CONCLUSION In conclusion government of Botswana is taking measures which are necessary and warranted by the African community in addressing poverty, health issues, eductions under social security. Initiatives are in place to assist the vulnerable. It compelling to make mention that notwithstanding the efforts, because of the current system underdeveloped that it lacks sophistication, more is needed a rights-based framework and statutory support for every social

security package to ensure effectiveness and non abuse by officials and political players . The state should not been seen to be ignoring the law to shapes institutions from their inception to their dissolution, and the ways in which those institutions address inequalities and equity. Lessons should be lernt from neighboring countries like South Africa[27], Swaziland[28] which provide for social security in their Bill of Rights and State obligation to citizens, BIBLIOGRAPHY 1. Solo, K. and Ntseane, D., Social Security and Social Protection in Botswana, Gaborone,Printing and publishing Company Botswana,2007 2. Larmache, L. , Social Security as a human right, South Africa, 2002 3. Budlender, G. , Justiciability of Socio Economic rights: some South African experiences, South Africa, 2004 4. Pieterse, M. , A different shade of red: Socio- economic dimensions of the right to life in South Africa, 1999, 15 South African Law journal on Human Rights

[1] Redson Edward Kapindu; Social protection for Malawian migrants in Johannesburg, (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL [2] The International Labour Organisation [3] LG Mpedi Pertinent social security issues in South Africa (2008) social protection embraces social security and entails policies and programmes designed to reduce poverty and vulnerability by promoting efficient labour markets,diminishing peoples exposure to risks, enhancing their capacity to protect [4] SOCIAL PROTECTION FOR MALAWIAN MIGRANTS IN JOHANNESBURG (n 1 above). [5]Per AMISSAH P in ATTORNEY-GENERAL v. DOW 1992 BLR 119 (CA),, pg 166 The Constitution is the Supreme Law of the land and it is meant to serve not only this generation but also generations yet unborn courts must continue to breathe life into it from time to time as the occasion may arise to ensure the healthy growth and development of the State through it [6] D Ntseane & K Solo Social protection in SADC: Developing an integrated and inclusive framework The case of Botswana in Olivier & Kalula. SEE also FORMBAD [7] Daleen Millard ,Migration and the portability of social security benefits: The positionof noncitizens in the Southern African Development Community (2008) 8 AFRICAN HUMAN RIGHTS LAW JOURNAL [8] Bonolo Ramadi Dinokopila The right to water in Botswana: A review of the Matsipane Mosetlhanyane case (2011) VL 11 AFRICAN HUMAN RIGHTS LAW JOURNAL [9] Sandra Liebenberg, Social Security as a Human Right, Training Module 11, in Section 5 of Circle of Rights, A Training Resource available at

www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module11b.htm. [10] Per AMISSAH P in ATTORNEY-GENERAL v. DOW 1992 BLR 119 (CA),, pg 166 courts must continue to breathe life into it from time to time as the occasion may arise to ensure the healthy growth and development of the State through it See Also recent unreported case of Mmusi and others v Ramantele and others MAHLB-00836-10 per DIngake J constitutional provisions should be interpreted generously.. in a way that would not render it a museum piece [11] R Miamingi Inclusion by exclusion? An assessment of the justiciability of socioeconomic rights under the 2005 nterim Constitution of the Sudan unpublished LLM dissertation, University of Pretoria, 2008 17. [12] Court of Appeal, CALB074-10 (unreported) [13] STATE v MONTSHO 2003 (1) BLR 230 (HC) per NGANUNU CJ held that the legislature has a responsibility for the good governance of the country. [14] [2000] 1 B.L.R. 79, CA [15] Per JAJBHAY J in CITY OF JOHANNESBURG v RAND PROPERTIES (PTY) LTD AND OTHERS 2007 (1) SA 78 (W) SEE ALSO Maundeni Mpabanga , Mfundisi. Sebudubudu, Tshabong CONSOLIDATING DEMOCRATIC GOVERNANCE IN SOUTHERN AFRICA: BOTSWANA, EISA RESEARCH REPORT No 31, published 2007 [16] Matsipane (see no 15) the court accepted the applicants submission that the government decision also constituted their violation of the right to human dignity. [17] Per Dingake J in Lemo v Maintenance Pty Ltd 2004 2 blr 317 IC, see also Good v Attorney General 2 BLR 337 CA per Tebbut J see also Kwadwo Appiagyei-Atua Minority rights, democracy and development: The African experience(2012) 12 AFRICAN HUMAN RIGHTS LAW JOURNAL The ultimate goal of development should be the realisation of human potential and dignity through the ability of the community to meet its needs through its members efforts and contributions. [18] Constitutional Case 15 of 1997 [19] ATTORNEY-GENERAL v. DOW 1992 BLR 119 [20] 1987 (LRC) Const 351 [21] Communication No. 196/1983 (3 April 1989), UN Doc. Supp. No. 40 (A/44/40) at 189 (1989) [22] NDP 9 and 10 with which the 2013 Budget Allocation coincides [23] NDP 9 [24] Martha Albertson Fineman, THE VULNERABLE SUBJECT AND THE RESPONSIVE STATE EMORY LAW JOURNAL [Vol. 60 [25] Solo, K. and Ntseane, D., Social Security and Social Protection in Botswana, Gaborone,Printing and publishing Company Botswana,2007 [26] Ibid [27] Section 26 [28] Article 60(social objectives)