“The Duty to Act Fairly”: Ethics, Legal Anthropology, and Labor Justice in the Manual Workers Union of Botswana

Abstract

This paper analyses the significance of the Botswana High Court and Court of Appeal judgments of a case in which the Manual Worker Union, a blue-collar public sector union, challenged the Botswana Government to reinstate dismissed workers with all their past benefits. I examine the role of public ethics and morality in Botswana as reflected in key notions used by High Court judges, such as “the duty to act fairly” and “legitimate expectations,” and argue that legal anthropologists have neglected such ideas, despite their having become a bedrock of contemporary judicial reasoning. While anthropology has shown a renewed interest in ethics, issues of public ethics and morality remain relatively unexplored in contemporary legal anthropological debates. One has to go back to the work of Max Gluckman on reasonableness in judicial decision-making among the Barotse to find foundational anthropological insights into the morality and ethics of law in non-Western societies. In the legally plural context of Botswana, notions of equity and fairness, this paper argues, “permeate” the legal landscape.

“You Have a Lot to Answer For”: Human Rights, Matriliny, and the Mediation of Family Conflicts at the Department of Social Welfare in Ghana

“…To this end, the officials applied the principles of customary law—and even religious persuasion—to ensure that there was a suitable justification for their verdict. There was an element of legal realism in which the law was being used as a tool primarily for the purpose of protecting vulnerable members of society (Werbner 2014, 482). This is in contrast to the formal conception of law that views law as a completely “autonomous, comprehensive, and rigorously structured doctrinal science,” which allows for a mechanical application in accordance with rigidly established facts (Dagan 2013, 16).…”

Marriage in Past, Present and Future Tense

“…Neither confined to the remit of courts and the discretion of judges, nor simply a matter of custom and culture (cf. Comaroff and Roberts 1981), molao on this reading emerges as a sort of 'ordinary ethics' (Lambek 2010) -a matter of everyday practice in ethical reflexivity and judgement, which permeates Botswana's parallel systems of customary and common law (Werbner 2014; see also Gluckman 1955). Molao is specifically oriented towards addressing disputes in ways that prioritise and protect opportunities for relational self-making (Alverson 1978;Reece 2019).…”

“…Perhaps the most striking undertone of these speeches was the suggestion that the kgosi, as the most senior authority in customary law to whom many family or marital conflicts would be taken, could not adequately address those conflicts unless people were married. As we have seen, there is a long-standing precedent of chiefly intervention and innovation in Tswana law (Gulbrandsen 1996;Schapera 1970;Werbner 2014) -particularly around marriage and pregnancy (Comaroff and Roberts 1977;Griffiths 1997), given their historically processual and indeterminate character, and their resultant tendency to generate novel dilemmas in times of significant socio-political change. While marriage and molao have long taken their meaning from each other, then, the suggestion that molao was inflexible, non-negotiable or set in stone sat at odds with the historical exercise of molao in customary courts -and, I suspect, with the experience most of the wedding guests would have had of molao themselves.…”

Introduction: new ethical fields and the implicitness/explicitness of ethics in Africa

“…Such approaches thus run the risk of being blind to the processes through which ethics are made explicit in the first place. A rare example of the latter is Pnina Werbner's (2014) study on labour unions in Botswana. Examining the case of a labour union's political success in performing a strike in 1991, Werbner shows how the discursive recourse to the ethical principles of justice, fairness and giving voice to contenders, which had long been important in the judicial practices of local courts ( kgotla ), became crucial for the strike's public acceptability, despite the fact that strikes are legally forbidden by Botswana's constitution.…”