Janice Daniels wrote that “…. Since that declaration of Good Law, the written word has been used by man continuously and consistently to make Bad Law; the only reason this continues to go unabated is that through the years, decades and now centuries, We the People have allowed it to happen ”. Judicial Learning Centre says “Laws are rules that bind all people living in a community. Laws protect our general safety; ensure our rights as citizens against abuses by other people, by organisations and by the government itself….” So when the law doesn’t conform to the definition of the Judicial Learning Centre, it inescapably becomes bad law. Wikipedia defines bad law as “A law that is oppressive, causes injustice”. It also talks about Dumb laws as “those laws which are particularly bizarre”. But somebody will kick start the process of the law he/she wants, good or bad to regulate our existence. This structure is the Executive. If for example the Executive feels that opposition parties are giving them a hard time and should be banned through an Act of Parliament, it will, and I presume inform those who draft legislation to do so with specific instructions of how this Act should look like. When all the due process is over, the law to ban political parties will be oppressive, unjust and ultimately a bad one. People who draft legislation are law scholars who, I presume, are able to tell if the law will be good or bad. That said we still have bad laws nevertheless. The obvious question is: why?
Before answering this question, let me identify a few laws which in my view are or were bad laws. The Citizenship Act of 1984 which was challenged and won by Hon Dr Unity Dow; the Customary Law of Inheritance (Ramantele v Mmusi and others) which was declared unconstitutional and discriminatory by the High Court on women in inheritance matters; Section 45 (3) of the Trade Unions and Employers Organisation Act which was challenged and won by BOFEPUSU through which govt had sought to deregister the federation; The President’s (Gratuity, Pensions and Retirement Benefits) Bill – what is wrong for example, with the current President’s retirement law I have always asked? The list is endless. There are also bad laws which establish state institutions – the Ombudsman, the DCEC and the IEC. These institutions cannot meet their mandates under their current legal framework. It should be recognised and appreciated, however, that good laws were made in the past like the Trade Disputes Act 2004 which established the Industrial Court; the domestication into our Constitution of the ILO Conventions 89 and 98 dealing with the right of every worker to form and join a trade union of their choice; the Matrimonial property law and others. To answer the question posed above, my answer is that scholars may provide advice to the Executive but because the Executive in some instances has its preferred desire and agenda like in the example of banning opposition parties, advice rendered becomes inconsequential. The Legislature in instances where it commands a healthy numerical advantage like here in Botswana will pass bad laws unrestricted because it is more in its interests to do so than in the public good.
It follows therefore that the consequences of bad laws are too ghastly to contemplate. Imagine what happens for example if and when the Legislature passes bad electoral laws. It means that an electoral process together with the outcome is bound to be highly contested with disastrous outcomes – civil disobedience with law and order impossible to enforce. History is replete with living examples of the consequences of bad electoral laws. In my view therefore, bad laws are a source to societal disharmony and conflict which are not good for democracy. There is urgent and compelling need to repeal laws which are oppressive and cause injustice. It may be argued that the judiciary is in place to deal with bad laws. But why are bad laws made in the first place anyway? Bad laws are a recipe to corruption and such like misdeeds. Carrie Nation said “It is not possible to make a bad law. If it is bad, it is not a law”.