Press statement by the Attorney General on the constitutional position regarding the assumption of office by a new president
1. I have found it necessary in view of recent misleading press reports, and their potential to create confusion and uncertainty in the minds of the public, to release a statement on the Government’s position regarding the constitutional provisions applicable to succession to the office of President of the Republic of Botswana.
2. Before the coming into effect of the Constitution (Amendment) Act No 16 of 1997, the provisions relating to a vacancy in the office of President were contained in section 35 of the Constitution, which provided in the relevant sections as follows:
“35 (1) If the office of President is vacant, the Vice President shall, subject to the provisions of this section, perform the functions of the office of President until such time as a new President assumes office in accordance with this section or section 32 of this Constitution.’
(2) If the office of President-
a) becomes vacant in circumstances in which there is no Vice-President; or
b) is vacant whilst the Vice-President is absent from Botswana or is, by reason of physical or mental infirmity unable to perform the functions of his or her office, the functions of the office of President shall, until such time as a new President assumes office in accordance with this section or section 32 of this Constitution, be performed by such Minister as the Cabinet shall appoint. For the purposes of this subsection, a certificate of the Chief Justice that the Vice-President is by reason of physical or mental infirmity unable to discharge the functions of his or her office, shall, in respect of any period for which it is in force, be conclusive and shall not be questioned in any court.
(3) Any person performing the functions of the office of President by virtue of subsection (1) or (2) of this section shall not exercise the power of the President to revoke the appointment of Vice-President or to dissolve Parliament.
(4) If the office of President becomes vacant, the National Assembly shall, unless Parliament is dissolved, and notwithstanding that it may be prorogued, meet on the seventh day after the office of President becomes vacant, or on such earlier day as may be appointed by the Speaker, and shall elect a person to the office in such manner as is prescribed by the next following subsection and, subject thereto, by or under an Act of Parliament.”
3. It should be noted that the foregoing effectively put into place provisions and a procedure for appointing the Vice President to ‘perform the functions of the office of President’ for a limited period of seven (7) days after which Parliament would elect a substantive President. During this period, the Vice President, or any person performing the functions of the office of President, did so
As we all know, the Constitution was amended in 1997 to usher in a new dispensation commonly referred to as automatic succession.
The position after the Constitution (Amendment) Act No. 16 of 1997 is as follows.
4. The Constitution (Amendment) Act, which came into effect on 29 August 1997 replaced section 35 (1) with the following new provision:
“35(1) Whenever the President dies, resigns or ceases to hold office, the Vice-President shall assume office as President with effect from the date of the death, resignation or ceasing to be President.”
5. The above provision ushered in what has now come to be popularly referred to as the automatic succession clause by the Vice President to the Presidency. The important difference between the old section 35(1) and the current one is that while the former provided for the Vice President to perform the functions of the office of President, the current one refers to the Vice President assuming office as the President with immediate effect. Under the current 35(1) therefore, the Vice President becomes the substantive President, unlike the earlier provision which simply gave him authority to perform the functions of that office until a new President assumes office.
6. It is clear therefore that when amending the Constitution in 1997, the intention by Parliament was to introduce in the law the following effect:
a) that a President who assumes office under section 35(1) shall be a substantive President with full constitutional powers; and
b) that such a President shall not become a ‘7 day caretaker President’ under 35(4) as was previously the case.
7. In the light of the foregoing, the question may arise why section 35(4) of the Constitution was retained, or what purpose it is meant to serve in the current dispensation. The answer to that question can be found in section 35(2) of the Constitution. This section provides a solution to a situation where there is no person to assume the office of President under the automatic succession section (35(1)). In such a situation, section 35(4) would kick in to ensure that there is no lacuna in the Presidency of the Republic, which could trigger a constitutional crisis.
8. There is no doubt that the true intent and spirit of the Constitution (Amendment) Act No. 16 of 1997 was to usher in automatic succession by the Vice President to the office of President.
Advocate Abraham M. Keetshabe
06th April 2018