A/HRC/31/59/Add.1 adopted and continued to exist thereafter, was covered by the exception to the principle of non-discrimination enshrined in section 15 (9) (a) of the Constitution).16 The Special Rapporteur notes in that respect that such exception to the principle of non-discrimination cannot be considered as valid under international human rights standards, in particular the International Convention on the Elimination of All Forms of Racial Discrimination, to which Botswana is a party.17 30. In 2000, the President of Botswana appointed the Balopi Commission to conduct an inquiry into sections 77, 78 and 79 of the Constitution. The Commission concluded that the sections were indeed discriminatory and should be amended to make them tribally neutral.18 Following vivid debates, the provisions governing the composition of the Ntlo ya Dikgosi were amended in 2007; the number of seats was increased from 15 to 33 or 35, thereby enabling better representation of all the tribes (in particular, 20 or 22 seats are filled through selection by the regional electoral colleges and the President appoints the members to the five remaining seats). Under the previous provisions, eight ex officio members were persons performing the functions of Chief in respect of the eight Tswana tribes. Under the current system, persons holding the office of Kgosi (Chief) in the eight tribal territories are appointed to the Ntlo ya Dikgosi according to the established norms and practices of those territories.19 31. Therefore, the basis for representation in the Ntlo ya Dikgosi changed from tribal affiliation to territorial location, in particular through the regional electoral colleges for some groups. There is concern, however, that the change is cosmetic in several aspects; in particular, it is alleged that the eight Tswana tribes are still ensured representation by their own Chiefs, as they rule over their own tribal territory. In addition, according to section 78 (4) of the Constitution, regional electoral colleges shall be composed of paid dikgosana (sub-chiefs or headmen) from the respective region. However, it is alleged that, in some cases, Wayeyi and San communities have had difficulties obtaining recognition by the Government and payment to some of their village headmen, on the basis that the approval of the Tswana Chief ruling the region was required. Another issue brought to the attention of the Special Rapporteur was that because the dikgosana are employees of the tribal administration, they are under pressure to follow guidelines from the Tswana Chiefs, out of fear of losing their position and salary. Furthermore, it is alleged that about 20 tribal communities, including large ones, do not have any representatives at all in the Ntlo ya Dikgosi. 32. United Nations mechanisms, such as the Committee on the Elimination of Racial Discrimination, the Human Rights Committee and the Special Rapporteur on the rights of indigenous peoples, have expressed concern that the amendments reproduce the discriminatory rules.20 In particular, it has been stressed that the amendments do not provide for each tribe or tribal community to be represented by its own Chief and that members of the Ntlo ya Dikgosi are selected by geographic region and presidential appointment through a complex system that ensures representation by a number of Tswana Chiefs; however, 16 17 18 19 20 8 High Court of Botswana, Kamanakao and Others v. Attorney-General (2001), paras. 40, 54 and 63. The Tribal Territories Act was first enacted as Proclamation 1899 and continually amended and reenacted, the last replacement law being Proclamation 45 of 1933. See CERD/C/BWA/CO/16, para. 8. A/HRC/WG.6/3/BWA/1, para. 53. See also www.parliament.gov.bw/ntlo-ya-dikgosi-introduction. CERD/C/BWA/CO/16, para. 10; CCPR/BWA/CO/1, para. 24; A/HRC/15/37/Add.2, para. 51.