Legal mobilisation, legal scepticism and the limits of ‘lawfare’: between law and politics in union activism in Botswana

ABSTRACT

Against legal scepticism which constructs litigations as negative or useless ‘lawfare’, this article argues for the need to recognise that taking government to court is part of a wider strategy of social mobilisation and campaigns for social justice, as others have also claimed. Legal mobilisation during a public sector strike in Botswana in 2011 was, the paper argues, only one strategic part of a more comprehensive campaign to call on government to pay its workers a living wage. The paper calls for anthropology to re-examine some of its assumptions about the role of the law in postcolonial nations. Despite the possibility that judges may be biased or vulnerable to political influence, and despite the courts’ restricted ability to implement their judgements - it is nevertheless the case that ethics, morality and the law, when mobilised alongside concerted political and civic activism, may play a critical role in advancing the cause of citizens’ rights against an apparently all-powerful government.

KEYWORDS:

• Legal fetishism
• lawfare
• Botswana
• public sector unions
• legal scepticism

Introduction: legal activism

In his recent work on legal activism in South Africa, Julian Brown invokes Michael McCann’s classic work – as I do here – on the way that ‘communities and activism can engage with both the state and the broader public through the use of litigation’ (Brown 2015, 136). ‘The implications of these arguments’, Brown says, ‘is that law is not neatly separable from social and political mobilisation or action, but that it inevitably shapes them’ (Brown 2015).

Legal activism is not just the prerogative of salaried or waged workers, as the example given in this paper from my own research on unskilled, low-paid, public sector workers in Botswana, shows. These workers, on rolling five-year renewable contracts, are the lowest paid in Botswana’s public sector, and are regarded by the government as setting the standard for the pay level of even more precarious workers in the private sector. Representing these low-paid workers, the Manual Workers’ Union was at the forefront of the public sector strike and legal mobilisation in Botswana in 2011 and in subsequent years, as litigation continued through the courts. And they paid the heaviest price, as we shall see, in the aftermath of the strike.

Legal mobilisation is deployed by workers in stable employment as well as by workers lacking a safety net – those workers on contracts or as nominally ‘self-employed’, and hence without the legally enshrined rights and protections enjoyed by salaried or waged workers. In Britain these supposedly self-employed workers within the so-called gig economy have recently scored some notable victories in the court against their operators. Legal Activism was spurred by an independent review, sponsored by the UK government’s Department of Business, Energy and Industrial Strategy (BEIS), that warned, in December 2015, that gig economy workers were at risk of exploitation; lack of clarity over workers’ status was allowing “unscrupulous” employers to take advantage of workers. The report recommended “flipping” the burden of proof in labour disputes, so that employment tribunals would consider complainants to be full employees unless a different relationship could be established. “Some of the more unscrupulous employers will also have to start to take notice if a significant proportion of their workforce stand up for what is rightfully theirs as a result,” the report said.

In their article on the mobilisation of sub-contracted cleaners at London University, Moyer-Lee and Chango Lopez (2016) describe how they achieved notable victories for contracted workers represented by their small IWGB trade union branch through protest and legal disputation. The same union has gone on to represent workers in the gig economy.¹ In a string of labour disputes with firms such as Uber, Deliveroo and CitySprint, employees have had their status upgraded.² On the way to final victory, in February 2017, Pimlico Plumbers lost a court battle over the status of its supposedly self-employed workers. As reported in The Guardian, “Tribunals and courts are increasingly willing to look behind the labels businesses use for their staff and will take into account the reality of the working arrangements and relationships.”

The Pimlico ruling was one of the later decisions to be handed down in a series of court challenges launched by outsourced and gig economy workers who feel they should get the same benefits as full-time employees, such as holiday pay and pension. A cycle courier working for the delivery firm CitySprint won the right earlier this year to be paid holidays and minimum pay. Food delivery firm Deliveroo was told last year it must pay its workers the minimum wage unless they are ruled self-employed by a court or HM Revenue & Customs.

The Independent Workers’ Union of Great Britain wrote to Deliveroo on behalf of a group of couriers in Brighton, serving two weeks’ notice to offer better pay and more hours. The group also had a message of support from the GMB union. Ride-hailing app Uber lost the right to designate its drivers as self-employed last year, in a ruling it has since appealed against. Maria Ludkin, the GMB’s legal director, said: “This case, like the Uber case last October, is yet another victory for the bogus self-employed who have been treated appallingly by their employer. “All they want is basic employment rights as are enjoyed by the majority, including the right to be paid a minimum wage and holiday pay.”

Elsewhere living wage movements, housing movements of low-income residents etc. have used the law, mobilising in court against a variety of state authorities and private employers. In situations of precarious living the law can be the only bulwark against total destitution.

Can such legal activism be construed as a form of ‘lawfare’? The notion of ‘lawfare’ implies an illegitimate use of the law by the powerful to crush weaker opponents. It may also rarely refer to a political battle between relative equals through the courts as occurred in a Tswapong village in Botswana over the name of the village (see Werbner and Werbner In press). Recently popularized by Colonel Charles Dunlap (2001), the notion of ‘lawfare’ is, however, mainly understood in the negative sense to imply the misuse of legal systems and principles against an ‘enemy’, by damaging or delegitimizing them, tying up their time or winning a public relations victory.³ If and when the law is deployed by human rights groups, unions or welfare NGOs to take the powerful to court and challenge their actions as illegitimate, then a construal of these efforts as ‘lawfare’ implies that these legal challenges are a waste of time, a hopeless quest for unachievable justice.

Against this legal scepticism, the present paper argues that attempts by the weak to challenge the powerful through court action must be understood as part of a broader spectrum of activism which I term legal mobilisation. The paper is based on fieldwork on the Manual Workers’ Union in Botswana in 2011, supplemented by further research in 2012 and 2013. Research on the Union began first in 2005. The data presented here is based on participant observation in rallies, which I recorded, and attendance at cases in the Botswana high and appeals courts, supplemented by conversations with unionists at the union offices and at the rallies, by court transcripts and media reports. I conducted no formal interviewing.

The ‘carnival’ of law

The meaning of lawfare is at the heart of an interdisciplinary debate by sociolegal theorists and anthropologists about the usefulness of going to law and the effectiveness of court judgements in the face of brute politics. The events I describe in this paper took place in Botswana, a small country with a long legal tradition. The case it focuses upon highlights the way that legal activism and legal mobilisation raise, I believe, issues of wider significance for legal and political anthropology more generally. Broadly speaking, I argue in the paper that sceptical legal anthropologists such as, most recently, Jean and John Comaroff, have failed to recognise that court trials are part of wider social mobilisations and campaigns for social justice. Going to court, I propose in this paper - against the legal sceptics - is not just a matter of legal fetishism, a kind of magical or irrational faith in the law against the odds. Legal mobilisation during the public sector strike in Botswana in 2011 was in fact only one strategic part of a more comprehensive campaign to call on government to pay its workers a living wage. The paper thus calls for anthropology to re-examine some of its assumptions about the role of the law in postcolonial nations. Despite the possibility that judges may be biased or vulnerable to political influence, and despite the courts’ restricted ability to implement their judgements - it is nevertheless the case that ethics, morality and the law, when mobilised alongside concerted political and civic activism, play a critical role in advancing the cause of citizens’ rights against an apparently all-powerful government.

I start with what I call the ‘carnival’ of law. It is undoubtedly true that court cases, as we see them depicted on television and in films, are popularly perceived to be dramatic events. In reality, however, I found in my study of public sector unions in Botswana that much of the argumentation about labour disputes in court is often dry, technical and arcane, with lengthy affidavits on what happened rather than adversarial interrogation of witnesses or grandiloquent appeals to the jury and gallery. Whatever the confrontations between workers and employers that led them to court, hearings about labour conflicts seem to consist mainly in legal counsels on both sides citing unfamiliar legal precedents, or arguing in abstruse detail about possible inconsistencies between different Acts promulgated by the state, or between those acts and international conventions.

But even in the case of more sensational criminal cases, the drama of legal debates in courts has seldom been framed by scholars in terms of embodied popular cultural experience in mass mobilisation. These disattended aspects of the law are centrally significant, however, I propose, in locating legal contestation within wider struggles for legal reform and social justice. My argument here joins legal scholars who reject a sceptical reading of theories contesting the long-term impact of progressive legislation and litigation. Against that, the new critical scholars advocate restoring ‘critical optimism’ in the legal field (Lobel 2007, 987): the view that legal mobilisation, a term coined by Michael McCann (1997) in his classic study of the struggle in the USA for pay equity, must be evaluated within the context of wider social movements for reform or social justice in which legal battles are invariably embedded.

This issue, of legal mobilisation, was reflected in Botswana’s public sector strike in 2011, a massive strike by local standards which was dubbed by the press ‘the Mother of all Strikes’. It expressed itself in effervescent, carnivalesque-like performances of legal contestation during the strike and its aftermath. Movements back and forth to the Industrial Court set the scene for other forays and invasions from the strike grounds where the workers assembled daily. The court cases were dramatic events lasting late into the night and even, in one case, into the early hours of the next day. They brought workers together bodily as they sang their way to court or sat for hours on end, packed into its exceedingly hot, limited space, listening to complex, technical legal arguments.

Forays to the Industrial Court during the strike reached ultimately across the whole country. A week after the first case, a second court hearing took place to decide whether the interdict on essential workers striking would be made permanent. This court case was attended by crowds of workers who had travelled to the capital from the far ends of the country. Seen as a popular cultural event, workers arrived dressed in white to signal solidarity with hospital staff, some elegantly dressed in beautiful white dresses and hats.⁴

Coaches and large mini-buses came from the north and south, each greeted with loud cheers from the expanding crowd, as their provenance was announced – Masunga, Francistown, Phikwe, Tonota, Serowe, in the north, Mochudi, Tlokweng and others from the South. With the whole country converging on the capital, there were dramatic moments. Workers abandoned their place under the Morula tree to form a solid phalanx in the grounds, at least 50 meters wide and about 10 people deep, dancing and singing towards the new arrivals. They sang their favourite MmaBakwena song of rebellion, mocking the civil servant responsible for negotiating with the strikers. The visitors descended from the coach, all in white, to form their own group, as they danced and sang towards the welcoming party. As they met, the welcoming singers parted, forming two parallel walls with the newcomers dancing through the middle.

The combination of popular culture (the ‘carnevalesque), politics and the law is in no way unique to Southern Africa. The newly formed British IWGB union which represented low-paid and casual workers, among them cleaners and porters in the University of London, had a sizeable Latin American membership. The Union’s strikes included colourful drumming, dancing and guitar playing, along with singing and street food. In November 2019 the Union voted to stage what the Union claimed was the ‘biggest strike of outsourced workers in UK higher education history.’ They were joined by university lecturers and staff.

In Botswana, the public sectors unions had been refused the right to march to the Industrial Court where their case was being held, by the police, so the decision was taken to walk to the court, with instructions not to sing or shout which could be construed as a demonstration, and whenever possible to avoid roads and cut across the ‘bush’. The marchers set off, arriving at the court in record time.

By the time I arrived, masses of workers were gathered in the court plaza, an ocean of white. The judgement was postponed to 4 or 4.30 pm, but by 2.30 Court No. 1 was packed, with floor sitting space only. The Union had brought a top labour advocate from South Africa to represent their case, as they continued to do in all their major appeals in the High Court and Court of Appeal in later years. Legal representations were followed by the ruling that the strike by essential services employees was ‘illegal and unprotected’, and ordered strikers to go back to work. The general feeling among workers I spoke with was that the judgement was biased and unfair; undoubtedly, the judge was in the government’s pocket, workers told me.

We returned back to the strike grounds. I gave a lift to three young women social workers who expressed concern about their clients, deprived of support during the strike. But they were committed to continuing with the strike. The buying power of their never-high salaries has been drastically cut, they told me. The Federation of Public Sector Unions’ President announced the Union had lodged an immediate appeal against the interdict meaning, they told the striking workers, that the judgement was on hold, and the strikers could return to the 30 per cent essential services agreement with government, the employer – this was known as a ‘stay of execution.’⁵ The audience roared its approval. Other speeches followed. The Manual Workers Union boss reminded workers of the union’s 1995 victorious Judgement in which dismissed workers were ultimately reinstated. As dusk fell, the Public Sector Federation’s Secretary General rose to the podium and shouted ‘revolution’.

The third court case, which took place on a Sunday a few days later, continued virtually all night, and was a major triumph for the Union. The terms of the strike agreed with the government before the strike commenced had now been reinstated, albeit temporarily. In fact, in the ensuing period the government continued to ignore the injunction to hand over to the unions the lists of workers it deemed essential within the 30 per cent terms of the agreement.

Court proceedings dragged on. By now it was 3.30 am on Monday morning. There were still a few Union leaders at court. As we began to disperse, workers described Mboki Chilisa, the young Union lawyer, as ‘brilliant’ and indeed, his performance had been very impressive. We streamed out of the court house. The Union choir, led by their choir master, formed a group and danced around the front court plaza and into the car park, singing the Mma Bakwena song, now become the strike anthem. There were still at least 100 workers present. I went to bed at 4.15 am.

The court cases received a good deal of publicity in the private media, with lengthy, well-informed articles and a range of cartoons. The public, as represented in the media, backed the strikers and lambasted the government and the President for refusing to meet and negotiate with the workers.

Throughout the agony and the ecstasy of the court cases – their moments of elation and despair, high expectations and dashed hopes, exhaustion and fun, comradeship and exhilarating collective activism, one feature of workers’ participation was particularly striking for me – their active intellectual engagement with the complexities of legal argumentation and judicial reasoning, much of it procedural. This was true even of the relatively uneducated manual workers in court. Botswana is a litigious society, with highly developed customary as well as modern court traditions, and this was manifest in the workers’ willingness to listen to hour after hour of lengthy, often obscure and highly technical deliberations. I often felt that I was the least informed person present.

What was striking in the post-case deliberations was the widespread suspicion of the possibility, even inevitability, of corruption-linked cronyism, reflecting the widening income and social gap between workers and top civil servants, politicians and private business managers in banking, insurance, large scale retailing, housing or the stock market. In this sense, Botswana had joined the rest of the world in becoming more middle class, while recognising that a small minority had become multi-millionaires.

Initially the Union was still optimistic that the ploy of appeal to the Court of Appeal would be sufficient to stay the execution of the essential services interdict. This was expressed by a union leader to strikers in the capital gathered under the Morula tree:

So if you know that God is on your side, and you know that you are doing everything according to the word of the law, then of course, everything should pan out in our favour, no matter what. Whatever the outcome on Friday (in the court case), it will be in our favour. Why? Because if on Friday (6 May), we are lucky enough to lose… did you hear me? I said LUCKY enough to lose… well then we will appeal it [the verdict] at the Court of Appeal. And the rules of the Industrial Court dictate that in so doing, the judgement of the Industrial Court is put in abeyance while we await the verdict from the Court of Appeal. Do you understand what I am saying to you? So, if that happens, then we are going to recall our fellows from the Essential Services, because there’ll be nothing barring them from joining us. On the other hand, if we are unlucky enough to win it…. understand me now… because really, in this instance, to win would ironically not be as lucky for us as to lose. Because should we win at court, then 70 per cent of us would have to remain behind and keep with the strike, while 30 per cent have to report back to work. I mean it’s lucky, but it doesn’t compare. (11 May, 2011)

He went on to encourage compliance with the law: ‘If we … make the economy run on only 30 per cent capacity – well, then the employer will have no choice but to give us what we want.’

The period after the industrial court debacle was followed by other Union court cases. Several Union leaders were arrested (and later acquitted) for allegedly threatening real violence in a public speech reported extensively in the press. Legal costs mounted, with P224,000 spent on legal fees (Morewagae 2011), and with no resolution in sight, the union Federation increasingly tried to explore more ‘political’ forms of mobilisation. These included a whole range of stunts, from handing out petitions to ministers and chiefs to the invasion of ministerial meetings.

In one of the court cases I missed, a union officer was acquitted of incitement to violence. According to a local newspaper, he

…was received like a hero by the multitude of striking workers who were in court to hear the case. When he made his first step out of the court, he was grabbed by the workers who held him aloft as they sang liberation songs. The police were at the receiving end of the songs formulated to ridicule them. (Morewagae 2011)

The officer then appeared before cheering crowds at the GSS grounds. Many workers ‘shed tears’, the paper reports, when he talked about his encounter with the law (Morewagae 2011).

Legal scepticism and the politics of law

These mobilisation events showed repeatedly that workers’ identities in Botswana are deeply embedded in the law, conceived of as a complex of ideas, dramatic performances and institutions. This is hardly surprising. Trade unions are inherently litigious organisations and Batswana are used to ‘living their lives in courts,’ as one scholar has put it, with customary moots and hearings central to village life. The belief in the right to go to court and the rightness of going to court to defend one’s rights is thus a taken-for-granted for most Batswana.

The importance of the law in Botswana is signified by the magnificent edifices built in the capital to house it. The Industrial Court is an imposing ochre structure, its central stairs rising from a large courtyard flanked by two hanging walkways which lead to a two-story high oval glass entrance, framed by four 30-feet columns. The new High Court and adjacent Court of Appeal, inaugurated in December 2012, is a huge, diamond shaped building with high, cathedral-like glass foyers and more than one hundred 60-feet high rectangular columns flanking an external walkway that surrounds the whole building, its roof capped by two silver domes with statues of the goddess Justinia at their apex. A statue of the ‘three chiefs’ who, in Botswana’s foundation myth, travelled to England to negotiate the Protectorate with Queen Victoria, is set apart on a circle, separating the two courts.

When, on my return visit to Botswana in 2012–2013, I tried to suggest, acting devil’s advocate, that perhaps litigation was a waste of time and money, given the advantageous position of the employer, not a single Motswana agreed with me. It was inconceivable to my interlocutors across the board, from MPs to civil servants, academics and trade unionists, that workers would not claim their rights in court. At the Union offices, when I said that scholars suggest court cases are a waste of time and money since the courts are unable to ensure the implementation of their judgements, the response was unanimous: one unionist said that ‘these intellectuals in Botswana don’t know anything, they don’t come to talk to us, and they are afraid of the government.’ Another said that ‘we have won 90 per cent of our cases so far.’ Referring to the public sector federation’s appeals in the High Court in 2012, which the Union had won. For the National General Secretary of the Manual Workers’ Union the matter was simple:

After the strike the workers were tired, they needed time, so we had to go forward with the struggle in another way. The court cases were a way of going forward, continuing with the struggle. They were part of the struggle. The money was not the main thing.

He added that it was also important internationally, with the ILO, to fight and win cases in Botswana. The government was a member of the ILO and wished to retain its good standing as an employer.

This determined belief in the value of going to court has been questioned, however, by a range of legal scholars on various grounds. The sceptics argue that legal victories in court, and even progressive legislation, such as, in the United States, the New Deal or the Civil Rights Act, depress protest while leading to co-optation and the illusion of social change, legitimising persistent structural inequalities, particularly economic dominance, and disguising employers’ continued capacity to subvert the law. Legal reforms thus mask, the critics argue, social containment, continued discrimination, and persistent deprivation, whether in the workplace or in contested fields such as race or gender.⁶ The same scepticism regarding the futility of the law and legal challenges in court implying that fighting causes through the court merely mystifies continuing injustice, inequality and domination, is expressed by Jean and John Comaroff, albeit somewhat obliquely, in the argument of pervasive ‘legal fetishism’ in postcolonial societies (Comaroff and Comaroff 2007). They call such legal battles ‘lawfare’. In some of these societies, though not Botswana, the futility of the law may be further aggravated by the evident lack of an independent judiciary.

The most far-reaching response to this type of radical critique remains Michael W. McCann’s classic theory of legal mobilisation in his study of the pay equity reform movement in the USA (McCann 1994). Legal mobilisation theory is grounded in the empirical fact that although the struggle for legal reform and social justice cannot be fought exclusively through the courts, legal challenges in court act as crucial catalysts in movement mobilisation - energising, publicising and conscientising a wide range of potential supporters. According to this view, legal activism supports building a movement, leveraging negotiations, forcing implementation, developing policy and compelling policy concessions (McCann 1994, 278 passim, esp. 292). More even than grass-roots activism, strikes and other spectacular events staged by a social movement, court battles are widely publicised in the press and media, reaching diverse audiences, including legislators, politicians and other public actors, as well as ordinary workers. To paraphrase McCann in my own terms, press releases, judges’ statements and media articulations frame discourses, symbols and workers’ moral narratives, give voice to their aspirations and their sense of entitlement, and build new vocabularies of rights. These challenge the transparency and taken-for-granted assumptions of established hegemonic discourses. Drawing on Marc Galanter (1983), McCann argues thus for the need to recognise the catalytic role of legal activism arising from courts’ capacity to ‘radiate’ effects well beyond the narrow audience or issue at stake in any particular trial.

As a theory, legal mobilisation is thus a dialectical approach that - while recognising that legal reform is a highly politicised process chequered with setbacks - rejects theories of the law-as-mystification, of the ‘mystifying “lure of litigation”’ (ibid., 294) or the organisational costs of litigation, arguing instead that legal tactics can generate as well as consume financial resources by attracting support from middle class and corporate contributors (ibid.). In sum, the central insight of legal mobilisation theory is the embeddedness of legal activism within broader social movements. These can and do deploy a whole range of other tactics and long-term strategies in addition to challenging the employer or government in the courts.

Like McCann, Orly Lobel (2007), a socio-legal scholar, rejects the fundamental assumptions of the legal sceptics, and particularly their espousal of extra-legal struggles within civil society as an alternative to litigation in court. In a wide-ranging critique, Lobel demonstrates cogently that grass-roots mobilisations and legal education beyond the court are equally liable to co-optation. The fact that the original ideals of a movement are not always fulfilled, she argues, cannot deny the reach of the law or the interpenetration of state and civil society. Hence, ironically, she says,

The rejected “myth of the law” is replaced by a “myth of activism” or a “myth of exit,” romanticizing a distinct sphere that can better solve social conflict. Yet these myths, like other myths, come complete with their own perpetual perils. The myth of exit exemplifies the myriad concerns of co-optation. (2007, 974)

One possibility, she suggest, echoing McCann perhaps, is to recognise ‘the need to diversify modes of activism’ (Lobel 2007, 982), ‘embrace a multiplicity of forms and practices’ (Lobel 2007, 983), avoid ‘the dangers of absolute reliance on one system,’ and develop ‘multiple courses of action’ (Lobel 2007, 988). Hence, she concludes, despite its weakness,

[l]aw is an optimistic discipline. It operates both in the present and in the future. Order without law is often the privilege of the strong. Marginalized groups have used legal reform precisely because they lacked power. Despite limitations, these groups have often successfully secured their interests through legislative and judicial victories. Rather than experiencing a disabling disenchantment with the legal system, we can learn from both the successes and failures of past models, with the aim of constantly redefining the boundaries of legal reform and making visible law’s broad reach. (Lobel 2007, 988)

Following Lobel, Scott Cummings begins by recognising that ‘Whether reforms are hard or soft, … the product of lawyer-led litigation campaigns or broad-based social movements, they are always vulnerable to strategic reinterpretation, deliberate nonenforcement, and political backlash’. Nevertheless, this does not imply the wholesale refusal of legal activism as a route to reform, but a recognition that ‘social change strategies by definition are ongoing and complex’ (Cummings 2007, 67). Much movement litigation, in other words, comes after progressive legislation has been enacted, and is concerned, as McCann recognises, with enforcing what has been gained, creating legal precedents, and challenging policies that contravene the new legal reform. To consolidate change often requires further litigation to ‘change law on the books’ (Cummings 2007, 68). Hence, while recognising the law’s limits, legal activism ‘seeks to exploit law’s opportunities to advance transformative goals’ (Cummings 2007, 70).

Both the tendency to go to court and the need to defend achievements were evident in union legal activism in Botswana. At one point the Botswana Federation of Public Sector Unions had five major cases and innumerable minor ones going through the courts. The cost of these cases was huge; each High Court or Court of Appeal case involved not only employing local law firms but bringing over Senior Councils (the equivalent of silks in the British system), possessing detailed labour expertise, from Johannesburg and Cape Town. These advocates, as they are known in Botswana, were paid hundreds of thousands of pula for representing the unions at the High Court and Court of Appeal.

It may seem paradoxical that despite their deep faith in the law, Batswana frequently disregard court decisions or retaliate when they lose. An example of the power of government to punish workers after a court victory was its five-year delay in raising workers’ salaries after the National Amalgamated 1995 victorious judgement. After the 2011 strike, government proceeded to retrench industrial class workers in cleaning, portering, laundry and garbage collecting services. A more blatant disregard for court decisions by one party to a dispute was the response of the rebel faction of the Manual Workers Union to the established union’s victory in the High Court in 2005. Repeated failure in court did not prevent the rebels from refusing to reimburse the Union or ultimately forming a rival union, with government support. It was only in August 2011, seven years after the start of the internal union dispute, that the High Court ruled in favour of the Manual Workers Union against the DPSM, withdrawing recognition from the rebels’ newly founded union on the grounds that it did not represent, as the law required, a third of the industrial class workers employed by government (see Morewagae 2011a; also Toka 2008 on the start of the dispute). This legal achievement had taken over two years of litigation.

Beyond labour law, the government of Botswana has repeatedly been shown to undermine, post-hoc, Court of Appeal San victories regarding their rights in the Central Kalahari Game Reserve (CKGR). After their first victory, the Attorney General announced that only the one hundred named litigants would be allowed back into the reserve, but without water rights and services such as health and schools, or any means of livelihood. After the second victory, government conceded the right for the San in the Reserve to use a water borehole they had blocked, but refused hunting permits or rights to other means of livelihood. Since then San men have been subjected to violent intimidation, searches, harassment and imprisonment, and fined extortionate sums for being caught hunting. The government, in other words, after each defeat in court has shifted the goal posts, with the consistent aim of preventing the San community from claiming its birthright in the CKGR. In its submission in 2013 to the United Nations Human Rights Council, the government appeared to change tack and appealed to the Council for ‘help’ in advising it on how to protect the rights of Basarwa, among other issues (Bosaletswe 2013; on the various court cases see Sapignoli 2018).

The futility of the law seemed most evident during the 2011 strike when the government as employer seemed intent on undermining the reforms to labour law it itself had navigated through the National Assembly to fulfil ILO conventions. This past record of obduracy gives some grounds for legal scepticism. So too do workers’ suspicions regarding the impartiality of judges, whether in the Industrial Court, the High Court or Court of Appeal. As in the West, Judges are labeled ‘liberal’, ‘progressive’ or ‘conservative’, having particular political leanings, but in addition, some are known to have friendships and shared histories with those in power - the ruling party, the opposition, and even the President. Thus, in the Court of Appeal where three landmark public sector essential services cases eventually landed in 2013, the President of the court, Ian Kirby, was known to be a friend and long-time confidante of President Ian Khama. He had advised Khama’s father, Seretse Khama, and in private practice was legal advisor to the ruling Botswana Democratic Party. Kirby was also known to share the current president’s enthusiasm for wildlife conservation and to have had business dealings with him or his relatives in the past (see Motlogelwa 2010). On the other side, Justice Key Dingake of the High Court, regarded as a courageous, progressive judge, was the brother of the former opposition Botswana Congress Party’s President. Indeed, in succeeding years, the union first won its three cases in the High Court, chaired by judge Dingake. Later, however, it lost two of the three cases, on appeal, in the Court of Appeal, with the bench chaired by Justice Ian Kirby. The cases are interesting in themselves from a legal point of view, with Judge Dingake raising issues of natural justice and the constitution of Botswana, but are too complex to be discussed here (for a full discussion of the whole series of cases from a legal perspective see Werbner 2014, 241–251).

Evident in the judgements was the disparity between Justice Dingake’s judgement, which stressed respect for workers’ dignity and the right to be heard, and highlighted the terrible hardships and humiliation dismissal entailed, and the conservative judge’s stress on law and order. Ironically, however, despite the piety of these sentiments, the political reality was that government appears to have used the dismissal as a tactical weapon to frighten workers into calling off the strike before any pay settlement needed to be reached.

At the height of the strike, the government had fired over ten thousand workers including doctors and nurses. After the strike was over, however, it re-instated the majority, apart from the lowest skilled workers – cleaners, gardeners, rubbish collectors and night watchmen – in the public sector. These workers lost their jobs permanently as they were outsourced to private companies, often leading to chaos in hospitals and other public institutions. The costs to the government purse in meeting the Union’s demand would have been minimal since the higher paid workers had offered to redistribute the demanded hike in pay to enable low-paid workers to be paid a bigger share, but the government insisted on a simple across-the-board cost of living pay rise only, irrespective of income. One can only speculate that the government feared that a rise in the wages of the lowest paid would trigger a demand for higher wages in the private sector, where poverty pay was even more pronounced.

Seen on a broader canvass, in saving the government the costs of reinstating 500 low-paid workers, and by absolving government from the duty even to consult the unions before mass dismissal, Judge Kirby had in effect performed a great disservice to labour law in Botswana. During the strike, it was evident that the government believed (mistakenly, according to Judge Dingake) that they could dismiss workers with impunity without a hearing, while the unions on their part believed (mistakenly, according to Judge Kirby) the very opposite, basing their view on the 1995 National Amalgamated judgement and other case law: that workers could not be dismissed without a hearing. This led to mutual incomprehension, an impasse, a stand-off, a series of ultimatums and, as it turned out, a tactical dismissal of doctors and nurses.

On Judge Kirby’s judgement the renowned South African council employed by the union, Wim Trengove is quoted as saying:

Our view is that the judgment is littered with too many political statements that were not germane to the resolution of the dispute between the parties, and which are not supported by evidence that was led by the parties, e.g. the executive’s budgeting process; the economic rescission; the suggestion that strikes in the public service should be a rare occurrence. There is no legal basis for the assertion that strikes in the public service should be a rare occurrence; it may be what the executive wants, but it is not supported by any legislative interventions because both the Trade Disputes Act and the Public Service Act permit public servants to resort to industrial action in furtherance of any dispute of interest," he argued. (Mosikare 2013)

Whether or not Kirby’s judgement was fair, the specific question concerning us in this paper is: was it worth going to court, given the huge expenses the unions incurred? As in the USA Supreme Court, in Botswana too, it seems, a conservatively inclined judge can have a devastating impact on liberal law, not by fiat but by explicitly setting forth his or her reasoning in detail, on grounds that seem rational, logical and humane. But there is another side to this coin, one which favours the unions: at the political level, the extension of the strike, though possibly illegal, enabled the unions to agree among themselves, with widespread public support, on their proposal for a ‘pyramid pay structure’ based on notions of equity and redistribution. Although rejected by government, this demand for equitable pay for low-paid workers experiencing financial hardship at a time of rampant inflation was achieved when the bargaining council subsequently in 2013 allowed for a ‘recession-related payment’ to low-paid workers.

Victory at last

The final case, unlike the other two, was a victory for the unions but it was, nonetheless, a cliffhanger. As unionists assembled in court listened to the 85-page judgement, they felt increasingly certain that government had won yet again, with dire consequences for the freedom to strike for most public sector workers. Only on p. 71(!), did Justice Kirby announce his verdict: classifying a service as essential was an important policy matter ‘to be debated in Parliament’ and ‘subjected to public scrutiny’ (71-72), especially ‘because the right to strike’ was only recently ‘conferred by an Act of Parliament, after full debate. To allow it thereafter to be arbitrarily cancelled by a member of the Executive would not’, the judge concluded, ‘pass constitutional muster’ (72-73).

It is remarkable that bitter experience and current suspicions did not diminish unionists’ faith in the law as an abtract ideal. After all, as one union leader pointed out to me, the Union had won ‘90 per cent’ of its cases. Politics simply made legal battles more complex and risky, even when unionists felt certain that the law was on their side. Backtracking by government meant that much of the litigation was not aimed at legal reform per se but at establishing precedents through court action to confirm progressive legislation and inscribe it unambiguously in ‘the law on the books.’

In 2018 Dr. Mogweetsi Masisi replaced Ian Khama as the president of Botswana. Although as vice President in 2011 he had supported the government’s draconian moves to fire strikers, in 2019 he announced government plans to re-employ public officers fired in 2011 for participating in the biggest civil service strike in the history of this country (Sejabosigo 2019). Indeed he ‘pleaded’ with those affected to bury their differences with government:

“We have all learned our bitter lessons from it, and those who are eligible, we will bring them back. We are going to have this decision confirmed at a special cabinet so that we reduce it to a directive,” said Dr Masisi. (Sejabosigo 2019)

Earlier that year Dr. Masisi had also promised to revive the Public Service Bargaining Council which President Khama had effectively abolished. Both these events point to the fact that the achievements of legal mobilisation have to be understood in the long durée. The memory of injustices in 2011 were still vivid for workers, even in 2019, as were workers’ spectacular protests.

So too in the UK, in June 2018 the Supreme Court delivered its ruling in the landmark Pimlico Plumbers case, upholding previous decisions that an ostensibly ‘self-employed’ plumber was in fact properly classified as a ‘worker’ with valuable employment right’s under UK law (Powis 2018). Hence ‘lawfare’ finally ended with a triumph of the weak against the powerful. But if so, can the series of legal battles leading to the final victory still be labelled ‘lawfare’?

Conclusion

If legal activism is embedded in wider social struggles for justice, it is equally true, as this paper has shown, that workers’ identities are embedded in the law and in courts, as vital to their sense of subjectivity and dignity as the air they breathe. In the light of this, I believe that anthropology needs to re-examine some of its assumptions about the role of the law in postcolonial nations. It is remarkable that even in lesser trials, locally trained Tswana attorneys representing the Union in court cite the need to consider public welfare and morality, and invoke the constitution alongside a myriad of statutory acts and common law precedents. Such broader issues are raised in order to challenge employers’ unilateral, unexplained and apparently irrational inclination to break agreements with workers. And as in nationally significant trials, so too in lesser ones workers pack the gallery and listen with deep concentration to abstruse legal arguments and often inaudible, impenetrable exchanges with the bench.

In a 2013 High Court case, I asked some of the workers present in the audience, several of whom had been dismissed without an exit package, if they were able to follow the arguments in court, surely so different from a customary kgotla court hearing where they easily understood everything? They confessed to not following everything. Why, then, had they come? They responded that the case was about ‘us’. ‘Although we don’t quite understand it all,’ they admitted, ‘we are learning.’ One woman added that this was her ‘first time’ but she intended ‘to come again from now on.’ As they saw it, their very sense of themselves as agents justified their bodily presence in court. One worker, who had studied engineering in Leicester and completed a Masters degree in Bradford, added that, like the others, several of whom were manual workers, he too had come to court to ‘learn’. ‘When you learn you come out another person,’ he told me. This points to the way that workers’ identity and subjectivites are embedded in legal activism.

In the case of the 2011 strike, the government of Botswana defended its decisions as responding to the health crisis in hospitals. Its primary aim was to save lives. Even so, it sometimes disregarded its own laws and court decisions. It had many weapons in its armoury, including amending the law in Parliament if it loses cases in the Court of Appeal. It is equally true, however, that unions – particularly public sectors unions – along with the private media and a few select NGOs, are uniquely placed in Botswana’s civil society to stand up to what they perceive as government autocracy, defend the morality of public law, and demand the independence of the judiciary and legislature in the face of unbridled executive power. Unions are relatively wealthy, independent organisations, not beholden to government, able to go to court to represent the common man in her or his collective struggle for worker rights and a living wage.

Acknowledgements

This paper was presented in November 2014 in a AAA session on ‘Labour, Law, and Cultures of Mobilization: (Co)producing Anthropological Narratives of Struggle and Inequality,’ co-convened with Sian Lazar, and at the Conference on ‘Labour Politics in an Age of Precarity,’ Cambridge University 2017. I would like to thank the participants for their helpful comments. The research on which the paper is based was funded by the Wenner-Gren Foundation for Anthropological Research. I wish to thank the foundation for its generous support. Earlier research on the Manual Workers’ Union was funded by the ESRC UK. I am grateful to the Council for its generous support. The paper draws on my book, The Making of an African Working Class (2014, Pluto Press).

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No potential conflict of interest was reported by the authors.

Additional information

Funding

The authors acknowledge the Department of Science and Technology for the PURSE grant [SR/PURSE/Phase2/11(C) 2015], New Delhi, India, to the Jawaharlal Nehru University (JNU), New Delhi, India.

Notes

1 Presentation by the authors at the workshop on Labour Politics, Cambridge, 22 April 2017.

2 See also the Guardian newspaper (10 February 2017), https://www.theguardian.com/business/2017/feb/10/pimlico-loses-appeal-against-plumbers-worker-status-in-gig-economy-case (accessed 18 April 2017)

3 Comaroff and Comaroff express their legal scepticism about the increased use of ‘lawfare’ in postcolonial nations, which they argue serves as a mere smokescreen for the pervasive rise in violence and corruption, though they also admit that law can be a “weapon of the weak” (2007: 144, 145).

4 In San Salvador, Sandy Smith-Nonini reports that in protests against the Ministry of Health in 2000 and 2002 took the form of huge “White Coat” marches. I’m not certain whether the Botswana unions were aware of this (Smith-Nonini 2010).

5 I was told that The Union was relying on a case between the Botswana Power Corporation Union and the Botswana Power Corporation.

6 A summary of these arguments can be found in Lobel (2007) and McCann (1994, Chapter Eight).