Dingake:The beneveryman(Part 1)

| Friday October 5, 2012 00:00

 

Lawyers and union leaders often like to say Botswana's justice system is like the Lotto - you either have Key or you do not! And not unlike the Lotto, most times you probably wont, but when you do, lucky you. As one union leader put it: 'At least you are assured a fair hearing'.

Botswana is a country of extreme dichotomies between the powerful and the powerless. The country was recently ranked in the top five in the league of inequality by income distribution by the International Monetary Fund. It has an income inequality Gini Index in excess of 0.5, one of the highest in the world. In such a country where economic power bestows other advantages and vice versa, a gulf exists between those favoured by political and economic power and those against whom this power is wielded. Then progressive judges like Justice Key Dingake of the High Court stand as the best chance the small man has against the big man.

Only a few other judges can boast such a profile. The judiciary is full of judges and dare one say even brilliant legal minds but not many can claim to bring the law down to the service of the average man the way Dingake does. Where most judges would fret, Dingake attempts to stretch an otherwise limited legal framework to its most liberal of interpretations and thus hand out some sort of protection for those powerless against the powerful. 

Of the three arms of government, the judiciary is the least critiqued. Lawyers fear critically analysing judgements for fear of rubbing judges the wrong way. Law scholars prefer silence on this matter. The media often finds legal concepts too complex and even intimidating to handle. So in this world, judges stand as holy sages, their judgements never publicly scrutinised except in high profile cases. But ultimately, judges like chefs come in various shapes, sizes and colours. From the same ingredient, the constitution, average judges can cobble together a meal, that is, a technically and legally acceptable finding.

However, it is the more ambitious and progressive judges who attempt something else, to create findings that push society to a fairer and humane level able to protect the weak from the powerful and even the powerful from themselves.

Most importantly, in recent times Botswana has seen the rise of an even more powerful executive, which having bludgeoned Parliament into submission, finds itself often at odds with judges like Dingake whose belief is that the constitution's major thrust is to bring about a more just, more fair society. But most importantly, their progressive legal philosophy see the constitution as seeking to temper the power of the few with the interests of the powerless majority.

As a 16-year-old secondary student in the late 1970s, Oagile Bethuel Key Dingake wrote a letter to his elder brother, Michael Dingake that still makes the latter laugh today. Tucked in the midst of the customary greetings, enquiries after Mike's health and reassurances that school was still going well, Oagile asked his brother: 'How much do judges get paid?'

At the time, Michael was imprisoned in apartheid South Africa's notorious Robben Island, and his interactions with his youngest sibling were constrained to the periodic reticent letters they exchanged under the vigilant eyes of the apartheid police. Oagile, born in Bobonong in 1963, was only two-years-old when his oldest brother was given a 15-year sentence on Robben Island for recruiting people to the African National Congress (ANC) and for inciting people to leave South Africa to undergo military training. Michael had initially left Botswana for South Africa to study, but had to find a job to finance his tertiary studies. Experiencing the same discrimination as black South Africans at the hands of the state, Michael joined the ANC in 1952.

When Oagile was growing up in Bobonong as the youngest of the 13-sibling family, his father Dingake Dintwe, a stern hardworking disciplinarian who earned a living from alternately farming and working in South African mines - dangled Michael above the other siblings as someone to look up to. Young Oagile learnt about his brother from the stories told by other people and from his father's constant coaxing (of all the siblings) to be more like Michael. In Oagile's mind, Michael must have acquired an almost mythical larger-than-life persona.  The letters that the two brothers exchanged when Oagile became older did not help much as, under the apartheid regime, the brothers could not talk freely. Censorship was rife, and Michael remembers today that he could not ask his brother all the questions he wanted to pose.

'I could only ask him about school and about developments in the village,' Michael remembers. Even through the restraint of the letters, Michael's impression of his brother was of an intelligent and interesting young man. When he was released from prison in 1981, Oagile was the only one of his siblings who met him at the border. Oagile's reverence for his brother did not end when they met. The younger brother's wife, Tshimologo remembers that when they were still dating, it took a long time before he introduced her to his famous political activist brother.

But years before he could write the letter that perplexed his brother, Oagile was just another boy growing up in Chilonda ward in the dusty village of Bobonong, the headquarters of the Bobirwa sub-district. His education then was confined between the village affectionately known as Bob City and Selebi-Phikwe, a town 80km away.

He lived with an older brother who was a pastor in a church in the town. In Bobonong, he attended the village primary school. As a lower-primary student, he was so attached to his older sister, Annie (then in Standard Seven) that when his classes ended, he would sometimes go sit next to her to wait for her classes to end so they could go home together. Even while schooling at Matshekge Junior Secondary School, holidays would be spent at the farming lands and cattlepost.

A cousin named Joel was involved in the Zimbabwean liberation struggle then, and Oagile was exposed to his activism, alongside that of his brother. For his senior secondary education, Oagile went further afield to Lotsane Senior Secondary School in Palapye.  It was while he was in Palapye that his brother came back to Botswana.

When Oagile finished secondary school, Michael had started working at the University of Botswana (UB) in the administration department. Oagile moved in with him and spoke to him often about his eagerness to go to Tirelo Sechaba.

In 1984, Batswana went to the polls for the third time and the Botswana Democratic Party won 67 percent of the vote. That year PW Botha, leader of the South African government and Samora Machel of Mozambique signed the Nkomati Accord, a non-aggression treaty in which the governments agreed not to give support to the other's opposition movements.

Oagile joined scores of other bright-eyed young men and women at the UB to read for a Bachelor of Laws (LLB), much to his father's chagrin. 'The old man wasn't impressed,' Michael remembers. 'He said to me, 'a reng monnao? O bata go ithuta boagente? O bata go ithuta maaka. (What is your younger brother saying? He wants to learn law? He just wants to learn how to become a liar').

One of his classmates at the time is prominent Gaborone lawyer, Dick Bayford who remembers Dingake as studious. 'One thing that cut him from the rest of the students is that he wasn't merely a paper tiger, he coupled his studies with a whole array of social activism,' Bayford says.

It was at UB that Dingake met Innocent Modisaotsile, who is still his best friend, 28 years later. 'We clicked because we have a few things in common. We were both raised in the rural areas. We are both from so-called minority tribes. We both don't drink and we are both interested in broader developmental issues.

Even back then, we engaged each other in developmental models that could benefit people,' says Modisaotsile, who is now a project manager at the HIV/AIDS Unit, Southern African Development Community (SADC) secretariat in Gaborone. Modisaotsile believes that the essence of who Oagile is, and who he has become, is rooted in his 'extraordinary love for human beings'.

'To him, what is important is that you are a human being. He finds value in any human - rich, poor, educated, uneducated,' he says. Further, the character trait that has solidified their friendship to this day is that Oagile is just a simple person.

'He fits anywhere. He has the necessary sophistication to fit anywhere.  If I take him to Bokalaka and leave him with a group of uneducated old men, he will just be as comfortable talking to them as he would with people in Gaborone, or even New York,' Modisaotsile says. Oagile's wife Tshimologo concurs.

'Ene ke Motswana. He is simple and basic, even rural,' she says.  She says that her husband is so conservative that he used to be uncomfortable about her wearing trousers.  She had to 'ease him into it' just as she had to warm him up to eating pasta, instead of his much favoured phaletshe and seswaa. The formative stages of Dingake's philosophical and indeed ideological were spent, like most people, during his university years.