The third edition of the Paris Peace Forum slated for November this year will be devoted to multi-stakeholder response to Corona virus, French Ambassador to Botswana Laurence Beau, has said.

Speaking this week on the occasion of Bastille Day celebration, Ambassador Beau said the response will be both in terms of improving “our immediate response and resilience, and of rebuilding a more sustainable world”. She reiterated that President Emmanuel Macron and France are “very much committed to the African continent, its development and its stability” and expressed hope that there would be a strong attendance at this first international summit.

The summit underlines the fact that collective response to the multidimensional crisis that the world faces must not neglect environmental and social awareness. Ambassador Beau said that investing in the ecological and energy transition must be a way for the world to turn the crisis into an opportunity by respecting the commitments made under the Paris Climate Agreement and the Sustainable Development Goals of the United Nations (UN).

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The French embassy in Botswana celebrated Bastille Day (National Day) on June 14th with an address by the Ambassador H.E Laurence Beau beamed through social media.

The Ambassador began by commending the Botswana authorities for their “exemplary management” of the Corona virus health crisis, noting that safety and hygiene measures were quickly implemented and complied with. She observed that likewise, France had taken similar decisions and postponed many international events that were scheduled for this year, such as Africa-France Summit, the IUCN World Conservation Congress and the Generation Equality Forum.

Ambassador Beau noted that this year’s celebration of the Bastille Day is an opportunity to pay tribute to workers in all essential services who have been and still are on the front line of the fight against COVID-19. “I would particularly like to thank all medical staff whose exceptional mobilisation allowed many lives to be saved: they embody the values of solidarity, fraternity and commitment that both our countries share and promote far beyond national borders”, she said.

She emphasized that the pandemic is still raging and has in the process highlighted the “interdependence of States and economies in a globalised world”. It was for this reason that she warned against temptation or the trap of withdrawing from the international community.

She said France and Botswana stand together in promoting a collective response within the framework of multilateral institutions, hence France has been supporting Botswana in its fight against the outbreak of the virus, on the bilateral level and through European Union channels (“Team Europe”), as well as on the international level in strengthening WHO, GAVI and the Global Fund, to develop innovative and ambitious initiatives.

“In this spirit of cooperation, we are pleased that the ACT-Accelerator initiative has raised 9.8 billion euros to guarantee universal and fair access to a vaccine against Covid-19” Ambassador Beau said. She ended this note with an assurance that Botswana can count on the commitment of France to support its objectives of strengthening its healthcare system as well as stimulating its economic recovery through greater diversification.

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Some residents of Gaborone are disgruntled at being overlooked or excluded from the social food basket rollout. The food basket is meant to assist those in need, particularly those financially affected by the COVID-19 extreme social distancing regulations. 

Government has indicated that the nationwide drive is targeted at the most disadvantaged community members who are without an income and lack basic necessities especially food. A statement from government this week indicated that 3000 households had been identified in Gaborone to receive the food relief baskets. The city has a population of over 200, 000. 

Some members of the public have said that there was no class categorisation in the surveillance. Residents of the so-called prime and suburban areas of Block 5, Block 8, Block 9, Block 10 and Phase 2, among others, took to social media to complain that they had not received any visit from social workers. 

A disgruntled resident of Block 8, Thomo Moepi said the assumption was that people who live in prime areas are not in need. “They probably went to township areas only. What they fail to understand is that living in semi-urban prime areas does not mean that one is well-off. Many of us are struggling, living from hand to mouth as hustlers. I think government does not understand what the life of a hustler entails. On other days I can fend for myself because I can do this and that to make money but not now in lockdown,” he said. 

Moepi runs a car wash and shoe cleaning business. 

Many Batswana make a living through the urban informal sector through selling, skill exchange, trade and ‘piece jobs’, on a service or product or payment method, where they make money on a daily basis. With limited movement, many economic opportunities and prospects are depleted. There is no income for large families and beneficiaries. 

Many breadwinners and guardians are struggling. Electricity tariffs were hiked by 20 percent prior to the lockdown and any discerning consumer could have noticed the price hikes on several items in shops. All this has increased costs for many. 

Tshegofatso Bathai, a hairdresser renting out a shared backhouse, said on most days she can make more than P300 in a day but with social distancing restrictions she could barely scrap a mere P100 and had been forced to dip into her meagre savings to get by and send money home to her ailing parents and unemployed siblings because she is a breadwinner. 

She said she had received one or two customers and was able to buy relish, but it was risky. “They are scared of breaking social distancing rules. Some customers are not doing their hair because they are not going anywhere. “Staying home is also expensive, especially when you have little ones. Children want to eat. When they are hungry, they just want food – they don’t care that it is lockdown.” 

 

 

 

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The Seventh-Day Adventist Church (SDA) has donated the sum of P200, 000.00 to the COVID-19 Relief Fund. The SDA Church in Botswana is administered by Botswana Union Conference and has two regional administrative centres - North Botswana Conference (Francistown) and South Botswana Conference (Mogoditshane). 

 

The Church owns several entities, among them Kanye SDA Hospital, Kanye SDA College of Nursing, Botswana Adventist Medical Services, and Moshupa SDA Clinic. President of the Botswana Union Conference of Seventh-day Adventists Dr. Kenaope Kenaope confirmed to this publication that the church indeed made the donation. In a letter addressed to all church organs and passed to Botswana Guardian, Kenaope announced the donation was made in solidarity with the Government efforts to mitigate against the negative economic effects of the COVID-19 pandemic. 

 

He said that in response to the national call to contribute funds (or in-kind) to the COVID-19 Relief Fund, the Botswana Union Conference (BUC) Executive Committee authorised and contributed the sum of P200, 000.00 (Pula Two Hundred Thousand Only) on behalf of the Seventh-day Adventist Church community, to the fund. 

“The said amount was transferred to the Bank of Botswana COVID-19 Relief Fund account on Thursday April 09, 2020”. 

Kenaope expressed hope that the contribution is "our social responsibility" as a church to partner with all those who are supporting the Government of Botswana to address the effects of the COVID-19 scourge.

 

"We encourage our members who are financially able to voluntarily support this government initiative over and above what the SDA Church as an entity has contributed,” he implored. SDA entered Kanye Village in then Bechuanaland Protectorate in 1921 through its medical missionary work and this was followed by its preaching work in 1922/1923. By December 31, 2019, Kenaope said it had a membership of 47, 354 baptised members. 

 

Kenaope encouraged congregants to adhere to the guidelines provided by MoHW and WHO, such as extreme social distancing and washing hands as often as possible with soap and clean water. “Much more, we pray for the frontline medical teams as they do their best to manage the situation and also encourage all of us to unite our efforts to curb the spread of COVID-19,” he said. 

 

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A legal battle between the Ministry of Health and Wellness and Botswana Land Boards, Local Authorities and Health Workers Union (BLLAHWU) is looming after the ministry rejected demands by the union to have its members - who are COVID19 frontliners - given Personal Protective Equipment (PPEs), food and transport.

 

BLLAHWU wrote a letter through its attorneys this week Tuesday to the Attorney General indicating that as at present and following engagements with DPSM Director, there has been no positive response to the demand that frontline health workers be provided with the necessary PPEs and hand sanitisers.The union mentioned that the deployment of Social Workers into households without any 

PPEs expose both the households that the Social Workers will assess and the Social Workers themselves.

 

"The client represents more than two thirds (2/3) of all Health Workers and Local Government employees, the specific cadres inclusive. To that end, there is a collective labour agreement which has to be honoured by both parties. In addition to this, the Employer has conditions of service for the respective cadres of employment”. There are further World Health Organisation Guidelines which require PPEs for such frontline persons. The WHO Guidelines are part of “our law by reason of them being recognised by the Regulations in Statutory Instrument No. 61 of 2020," said Motswagole and Company law firm in a demand letter dated April 14th 2020.

 

The attorneys added that there is a further risk of transmission between Social Workers and their 

Counselling clients, especially given the private and closed environment in which counselling services are ordinarily provided. "We are under instruction from the client to demand as a matter of urgency that within 3 days of this letter all the relevant Ministries, who have been copied herein, provide all of the deployed staff with PPEs, hand sanitisers, food and transport in their respective shifts. 

 

“Take notice that should the above not happen, the undersigned shall approach the High Court on an urgent basis to compel to provide all the deployed staff with PPEs as per their respective shifts." In response the Attorney General representing the health ministry indicated that the employees are engaged on their day-to-day work and the ministry is not in a position to provide food. It is further stated in the response letter dated April 16th 2020 that there are no records of transport challenges. 

 

According to the ministry BLLAHWU members being social workers perform in-person interviews in a community setting and their subjects are community members who are presumably asymptomatic. The ministry posited that guidelines dictate that interviewers exercise social distancing of one (1) metre from subject therefore PPE is not a requirement. The ministry has however admitted that there has been shortage of PPEs in the central district a challenge it said will be rectified.

 

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In a matter of weeks since extreme social distancing kicked in, an alarming number of children across the country have fallen prey to sexual predators. Acting UNICEF Representative Sarah Ng’inja noted that since the beginning of lockdown, rape cases have risen, and it is displeasing that even minors have become victims. “It is heart-breaking to hear that out of 22 rape cases reported, seven of them are children aged between two and thirteen years old,” said Ng’inja. 

She said during the same week, Botswana Police Service has also registered 23 cases of defilement.  UNICEF, she said, condemn sexual exploitation and abuse of children and therefore urges all stakeholders to ensure the safety and wellbeing of children. She emphasised that the ‘Eseng mo ngwaneng’ campaign which was launched in 2018 was part of efforts to raise awareness of the sexual abuse and sex exploitation of children in Botswana. 

“The message is still clear, Eseng mo ngwaneng,” said Ng’inja. She believes that school closures and movement restrictions are disrupting children’s routines and support systems. “Some parents are struggling to care for their children and the protection risks for children are mounting,” she said. UNICEF therefore urges all stakeholders including; authorities, families, caregivers and communities to take concrete steps to ensure that protection of children is an integral part of COVID-19 prevention and response measures. 

This, she says include training health, education and child services staff on COVID-19 related and child protection risks, including sexual exploitation and abuse as well as how to safely report concerns, training first responders on how to manage disclosure of violence against children and collaborate with healthcare services to support violence survivors and engage children, particularly adolescents in assessing how COVID-19 affects them differently to inform programming and advocacy. 

Botswana Police Service is also looking into this issue and has introduced a toll free number for victims to report at the comfort of their homes. The expectation is to curb the alarming rates of gender based violence. 

The toll free number is 0800 600 144.

 

 

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The Law Society of Botswana has written a hard-hitting letter to the Minister of Defense, Justice and Security complaining on how the Ministry is handling the issuance of COVID-19 permits to their members. 

 

In the letter titled 'LAW SOCIETY OF BOTSWANA’S DISAPPOINTMENT WITH IMPLEMENTATION OF COVID-19 REGULATIONS BY MINISTRY OF DEFENCE, JUSTICE AND SECURITY', addressed to Minister Kagiso Mmusi released yesterday by LSB's secretariat, the Society says after a series of engagements to get clarity in respect of the process for issuing permits to legal practitioners (who in terms of the Emergency Powers (COVID-19) Regulations, 2020 are classified as essentials), the Ministry has through a press release issued on 14 April 2020, directed that the issuing authority in respect of permits for Ministry of Defence, Justice and Security (“the Ministry”) shall be the Registrar of the High Court in respect of litigation matters, and the Ministry as regards other non-litigation urgent matters. 

The release limits the issuance of permits to legal practitioners who are seized with matters that the Registrar deems to be extremely urgent and those dealing with non-litigation matters that the Ministry deems to be urgent.

 

LSB contends that the Ministry’s release shows complete disregard of the Regulations by introducing additional requirements that run contrary to the clearly expressed intention of the lawgiver. It says the clear intention of the lawgiver was that legal practitioners are essential service, and it did not confer discretion on the authorising officer to introduce additional requirements for the issuance of a permit.

 

"These Regulations were passed by the President and approved by Parliament. To now introduce other conditions post facto is to undermine the legislative process that was followed in passing the Regulations".  LSB contends further that the issuance of permits by the authorising officer to legal practitioners should be "purely administrative" with the only questions to be considered being whether the person who seeks the permit is a licensed legal practitioner, and whether the form that has to be completed, has been properly filled-out.

 

"Many state-sponsored abuses of freedoms and liberties take place under the cloak of state of emergency; we believe it was partly in recognition of this that the law-giver declared legal practitioners an essential service". During such periods, it becomes critical that those who may fall victim to these abuses have unhindered access to a legal practitioner. 

 

Subjecting the grant of permits to instances which the Registrar or the Ministry, in their wisdom, deem to be urgent therefore "chills the right to legal representation" which freedom is more critical in a state of emergency, says LSB. “As a result of the Ministry’s absurd implementation of the Regulations practitioners are unable to meaningfully consult with their clients until they have been given permits”.

 

However, in many instances, it may be impossible to determine whether a matter satisfies the urgency requirement until there has been an opportunity to consult. The requirement to seek a permit from the Ministry in respect of non-litigation matters that are urgent requires legal practitioners to violate the common law duty of confidentiality that they owe their clients, reads part of the letter. 

 

"We further have grave doubts as to whether the Ministry is competent to express a view as to whether a matter is urgent or not, as it has no internal expertise in the practice of law."  Such requirement, contends LSB, also undermines the independence of the legal profession, which is an important feature in a democratic set-up that recognises the separation of powers between the judiciary, legislature and executive. 

 

A legal practitioner should never have to depend on the subjective assessment of his legal matter by the executive before being given a permit to continue with it, says LSB. “In our view, the natural home for the processing of permits is the Council of the Law Society of Botswana, which maintains a record of all compliant legal practitioners. 

 

"The Council of the Law Society will continue to urge our members to minimise the risk of spreading COVID-19 by only leaving their homes to go to the workplace for matters that deserve their urgent attention". However, it says the call as to whether a matter requires urgent attention should be that of the legal practitioner and not the Government; in as much as a doctor and not the Government makes a determination as to which patients need to be attended to. 

 

"It is an insult to the independence of the legal profession, and overly paternalistic to leave it to persons with no experience in regulating the profession to decide which legal matters warrant permits. We call upon the Ministry to reconsider its position. We hope and trust that the rule of law will eventually prevail, and the Ministry will see the light and revise its position,” reads the letter. It reads further that, "We do not believe that there is any reason the LSB should not be able to regulate its members as regards the permits or indeed to suspect, as the Ministry seems to, that practitioners want to abuse the permits.” 

 

 

 

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Health and Wellness Minister Dr. Lemogang Kwape has allayed fears that some workers at the country’s border posts are not considered frontline services during the COVID-19 pandemic. Eight departments – Port Health; Crops; Veterinary; Immigration; Customs; Police; Botswana Defence Force (BDF); and Support Staff – constitute the border post. 

Each department has a specific role to play in facilitating the movement of goods, services and people into and out of the country. For example, port health deals with health screening while Crops and Veterinary issue permits for imports of plants and animal products. But since the onset of the extreme social distancing (lockdown) announced on March 20th complete with its attendant measures -all intended to fight the raging COVID-19 pandemic  - some workers at border posts have expressed anxiety over their welfare, health protection and security of tenure.

They feel that only the Port Health, Immigration; BDF and Police are considered frontline services and therefore qualify for such benefits as protective clothing (PPEs) and crisis insurance under the COVID-19 Regulations. However Minister Kwape allayed these fears when he told Botswana Guardian Online Monday afternoon that every department at the Border Post is considered essential service. He said the only difference is that they perform “different layers” of service.

For example, Immigration and Customs predominantly handle paperwork, while interaction in other departments may require physical contact. But this notwithstanding, the minister said everyone is considered a frontline service provider and must be provided with all the requisite personal protective equipment. However, there is still an issue with procurement of these resources including test kits from China, as they are scarce on account of the huge demand expressed by the whole world. Botswana hopes to navigate this difficulty through emergency procurement as stipulated by the state of emergency regulations.

When asked to comment on these issues, Defense, Justice and Security Minister Kagiso Mmusi referred this publication to Directorate of Public Service Management (DPSM) whose director, Goitseone Mosalakatane was not readily available at time of going to press. The border posts workers that spoke to this publication also complained that they are not provided with protective clothing, nor are they tested for corona virus even though they are the first port of call between the country and truck drivers that deliver goods and services from South Africa, where the disease burden is high.

“We also have families, if we get infected at the border post and go to our respective homes at the end of the day there’s a real fear that we could endanger the health of our loved ones,” said one official that did not want to be named. The official suggested that even the envisaged mass testing initially targeting 20, 000 people, should start with the border post staffers. In its bid to protect the country from the ravaging COVID-19 pandemic the government closed some ports of entry on 20th March 2020. Only major commercial ports – Kazungula, Mamuno, Martins Drift, Mohembo, Ngoma, Pioneer, Tlokweng and Ramatlabama - remained open.

 

 

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Monday, 13 April 2020 15:16

SMEs punch holes on COVID-19 Relief Fund

Entrepreneurs have started punching holes on government’s COVID-19 pandemic relief package, which is expected to cushion workers, stabilise businesses and promote opportunities for economic diversification. 

“One would have expected that the relief fund would come as a mitigation factor for a reasonable period of time, to give oxygen to 'non operational' firms. It seems there won’t be such, at least from the current guidelines,” Nnyaladzi Malaki Monyamane, founder of a local travel agency, The Gabs Experience, told Botswana Guardian Online.

Monyamane said the fund has missed the most critical component for most start-ups and entrepreneurs, which is their rental. “Subsidising employees’ salaries is a commendable move, however it is not enough in the long run, as the offices they work from provides them the basis and justification of a 22 day monthly pay,” said Monyamane. 

He said most youth-owned companies struggle with rentals and usually employ one person on a permanent basis, being the business owner. “We can only hope that going forward, the relief fund will capture this important element of business’ running costs, to avoid our malls becoming white elephants after Covid-19,” Monyamane emphasised. 

He raised fears of businesses not being allowed to operate from home, saying that poses a looming risk for businesses to collapse.“Whereas operating from home has been permitted for some sectors, we still have clients who still find it difficult to go into a residential area to make a payment, and they are right, they have been robbed before,” said Monyamane. He said most entrepreneurs are considering closing offices due to the pandemic, owing to rental which is a fixed cost. 

 

 

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Monday, 13 April 2020 13:33

When precedence loses legs

 

 

When, as sometimes happens in law, precedence loses legal legs to stand on, is inappropriate or even insufficient to deal with a matter at hand, does necessity become the mother of invention and justify a judge making the law? These and other pertinent questions are adroitly dealt with in one of three recent books by Justice Professor Oagile Key Dinganke, PhD, entitled: In Pursuit of Justice – Examining the intersection of Philosophy, Politics and Law

 

Notion Press of India published the books which are available through Amazon, Flipkart, Amazon kindle, Kobo and Google play. Every country can perhaps cite a judge who was pre-eminent in the development of the law to fit changed societal circumstances. In the United States of America, the Warren Court was considered activist and critics charged that the Chief Justice was engaged in lawmaking. 

 

In the United Kingdom, Lord Denning was accused of utilising the courts as instruments of lawmaking, especially during his tenure as Master of the Rolls in the Court of Appeal. In Botswana, lawyers still talk of spirited intellectual battles between one Justice Kirby - a reputed conservative legal mind - of the Court of Appeal in that country and Justice Dingake, a reputed liberal mind, who was often regarded by the former as too liberal. 

 

As one senior Botswana lawyer and former cabinet minister once wrote: if you need to confirm the law as it stands, the ideal judge to appear before is Justice Kirby, but if you wanted to test the boundaries of the law, then you are better off appearing before Justice Dingake. It is not possible in a newspaper review to do justice to this entire book. As a result I discuss my impressions of the book in broad terms, choosing themes that define it. This book is essentially about the workings of a judicial mind. 

 

It teases out controversial questions around whether judges make law or simply interpret it. It goes further to interrogate the question whether judges’ backgrounds, experiences and values matter in the adjudication process. To ask the question whether judges make law in a constitutional democracy in the context of separation of powers is to court controversy. This is so because this question often divides the legal fraternity, not least the judges. 

 

Quoting the renowned philosopher Jeremy Bentham, Justice Dingake dismisses the argument that judges do not make law as ‘childish fiction’. Interestingly, he contests the philosophical view of some judges that ‘the law is what judges say it is, and says it is somehow misleading insofar as it may be construed to mean that judges are permitted to be the law unto themselves.

 

Often regarded as a judicial activist around Africa, Justice Dingake unapologetically comes to the defense of judicial activists. 

 

He says that judicial activists acknowledge that novel situations may require innovative judicial thinking and the courage to depart from precedent that no longer serves contemporary challenges. He contends that judicial activists acknowledge that reliance on precedent is not always possible, or even desirable. Changes in social or political conditions sometimes require new law, and old principles may simply be entirely inappropriate for circumstances not previously contemplated.

 

It is Justice Dingake’s considered view as expressed in this book that in a world where the courts are increasingly mandated to police the exercise of public power and keep it within the limits of rationality, reasonableness, fairness and proportionality, a case can and must be made for judicial activism. 

 

In pedestrian debates and sometimes in legal tussles within the hallowed halls of the judiciary – judicial activism generally has a negative connotation. It is usually understood to mean judges who may have a political agenda, are too liberal and too quick to impose their political views on society. 

 

On the contrary Justice Dingake argues that the judges who are regarded as judicial activists today are generally progressive judges who have the courage and intellectual gravitas to appreciate constitutional values and the imperative that judges must breathe life into the constitution. He goes to great lengths to point out that judicial activism does not mean judicial adventurism, which is a consequence of plodding through the law without putting forth intellectually persuasive reasoning as a basis for a decision in a particular manner. 

 

He quotes the eminent US jurist and Judge, Cardozo, and maintains that a judge is not a knight errant, ‘roaming at will in pursuit of his own ideal of beauty or of goodness’. He is to draw his inspiration from consecrated principles. While acknowledging that judges often make determinations with serious political consequences such as in election disputes, Justice Dingake refutes the idea in some legal literature that judges ‘are politicians in robes’. 

 

He gives as an example of such decisions, electoral disputes in which the courts can make determinations that alter or contradict the choice of the people. In this context he discusses the famous Al Gore v Bush decision of the Supreme Court of the USA and the avalanche of criticism to the effect that President Bush was an imposition of the Supreme Court.

 

One of the most fascinating aspects of this book relates to a discussion on the intersection of law, politics and philosophy. Justice Dingake argues that the transformation of political questions into legal ones is an inevitable feature of contemporary times. 

 

This refers to a phenomenon in which the courts are increasingly asked to determine political questions which traditionally had been thought to be the preserve of either the executive or parliament. He calls this phenomenon the ‘judicialization of politics’. He gives an interesting example of a case decided in 2004 in South Korea when the Constitutional Court in that country dismissed the impeachment of the President by the National Assembly. 

 

He says the case is perhaps the first in the history of modern constitutionalism whereby a president who was impeached by the Legislature was reinstated by the courts.  He also cites the case of Fiji v Prasad in which the Court of Appeal in Fiji restored the 1997 constitution of Fiji when people believed it had fallen into disuse.

 

Justice Dingake rigorously discusses a number of similar cases in which the courts appeared to ignore traditional boundaries, including being called upon to approve or disapprove the extension of presidential terms of office as it happened with the term of office of Colombia’s now former President Alvaro Uribe, Uganda’s Yoweri Museveni and Russia’s now former President Boris Yeltsin.

 

He ends his book by observing that the phenomenon of judicialization of politics and the politicization of law are contemporary realities that are bound to cause tension between the courts and the executive, but cautions that the executive must know that the duty to pronounce on the meaning of the law and or the constitution is the business of the courts.

 

I highly recommend this book to parliamentarians, members of the executive and the judiciary. This is because the book shows how philosophy, law and politics may collide and collude to yield a particular judicial determination, especially in value-laden disputes such as those dealing with electoral disputes, same sex marriage and the rights of the vulnerable and marginalized groups including key populations. Students of philosophy and politics would likely also find the book very interesting. The book, like Judges by the same author which I have had the pleasure and honour to read and review, is written in simple language. 

 

-*Winner of the SADC Media Award (2008) and 10 other journalistic awards, Moses Magadza is a PhD student with research interests in framing, agenda-setting, priming and critical discourse analysis.

 

 

 

 

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