The unhappy marriage of social class and justice
Many years ago, as first year law student at the University of Botswana, I took to a course, as an option, from the Department of Sociology, called Introduction to Sociology. There was a module on Social Stratification. Social stratification is the classification of society in two (2) main senses.
Max Weber defined class in terms of relative economic position. He posited that there are obviously economic differences between people depending on how much money they have, but there are also many other economic groups – it is possible to distinguish people, for example, according to employment status, or the kind of income they have (such as fees, salaries, and social benefits).
Marxists understand class in terms of the economy. The main distinction in Marxism falls between those who own the means of production and those who sell their labour, but if the basic criterion is accepted there must be other classes: the petit bourgeoisie, who own small shops and firms, or the underclass who are marginal to the labour market.
Within these groups of society there are political clusters creating a hegemonic bureaucracy. These are groups of high ranking members of the political hierarchy. They cluster themselves, knowingly or unknowingly, and occasionally meet in state banquets or such other functions. They are drawn to each other by a number of things and in the course of time, protect and advance the interests of each other. Their inbuilt loyalty for one another creates a hegemonic power.
As except for their power and social status, nothing brings them towards each other. Power can be exercised overtly, but it may also be exercised in ways which are difficult to detect. Leading Sociologists argue that there may be non-decisions, which maintain the status quo through “a decision that results in the suppression or thwarting of a latent or manifest challenge to the values or interests of the decision makers.” Examples are delays, lack of interest in such subjects, failure to respond to problems or in some instance, an inclination to rapidly attend or call onto others to attend to problems.
Many will recall, the Law Society of Botswana’s plea to the Chief Justice to attend to perceptions within the public around cases of high ranking members of our society whose cases were being allocated dates on appeal in relatively short period of time when there were equally deserving cases of people in custody whose appeals were not being processed at similar speedy and their record of proceedings were delaying or delayed. At the time, such a plea was made Magistrates Court had convicted a number of high profile people on corruption charges.
In order to demonstrate the contradictions within society in the context of access to justice, take for example a number of accused persons who in custody pending trial and pending appeal. Frequently, Courts hear these people way after months and sometimes years whilst awaiting records. This is despite the fact the Rules of Court require that the record be availed in no more than 20 days after receipt of the judicial officer statement. Extensions are never sought and rules are disregarded with impunity.
Now take the attitude of the Attorney General of always approaching the Court of Appeal (CoA) in less deserving circumstances as before of stay of execution of reinstatement of dismissed employees and just recently, imprisonment of the Botswana Defence Commander. The urgency with which the CoA was convened speaks to the perception the LSB complained of many years ago. One hopes that by hearing these cases, the CoA is saying that in instances where a lower court delays to hear a bail pending appeal, it is in order to approach it directly. Liberty must rank equal, whether deprived because of disobeying a court order or because one is accused of murder or stock theft. In relation to the latter, the Constitution presumes one innocent until proven guilty. If the CoA is not prepared to extend its hands in those circumstances, I fear it may well be that it’s a contributor to these perceptions.