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Forming gov’t in case of hung Parly

KEY DINGAKE
Botswana Parliament
In a journal article published in 2016, entitled: ‘The Politics of Opposition Electoral Coalitions and Alliances in Botswana’ my good friend and wantok, Professor David Sebudubudu, and two of his colleagues, contend, amongst other things, that the alternation of power in Botswana remains somewhat a distant possibility mainly because of the nature of opposition electoral cooperation and/or its fragmentation.

Much has happened since then that may have altered that conclusion.

According to some commentators the coming elections may well produce a Hung Parliament. Siphosami Malunga, the Executive Director of Open Society Initiative for Southern Africa, in a recent article appearing in the African Report entitled: ‘Botswana’s tight electoral contest presents unforeseen risks for Africa’s poster child’ postulates that in its 53 years in power, the governing party has never come this close to losing an election.

The judgement of the people shall be delivered in a few days’ time. It is with this possibility in mind that I wish to undertake a quick arc scan of the nature of our constitutional design and its possible accommodation of coalition politics.

In Botswana anxiety over the question of the formation of a government, pre or post an election, has never seriously bothered constitutional scholars and indeed members of the public and politicians mainly on account of the fact that the results of past elections have been fairly predictable.

Over the years the opposition mainly on account of its fragmentation and resource challenges has not posed any existential threat to the status quo. In all the elections that have been held since independence the governing party been able to garner a sufficient majority to form the government without unduly worrying about possible partnerships.

According to some pundits things may well change this year. There are also views to the contrary. This divergence of views shall be settled by the people in due course.

In Africa coalition governments are a fairly recent phenomenon. In recent years we have seen coalitions at local government level in South Africa and at the national level in Lesotho and Zimbabwe. Lesotho, in particular, may offer more relevant lessons to Botswana than Zimbabwe.

For decades, post-colonial African countries operated with dominant political parties that required no political partners to form government. In many countries a one party state or no party state was the norm, hence no need or basis for a coalition government. 

However, the introduction of multi-party politics and the rise in the popularity of political opposition in many African countries has led to the consideration of coalition governments, and this has taken two main dimensions.

First, a dominant party that has not secured a controlling or effective majority of the legislature and is, thus, unable to secure the confidence of the legislature to form government.

In this scenario, the dominant (but non-majority) seeks a partner from one of the smaller parties to be in effective control of government.

The second main dimension is that a number of smaller parties form a coalition in a bid to form large coalition as to defeat the dominant party.

In Kenya, a coalition government was formed in 2008 to share executive power between the President and the opposition leader who became second in the election.

A post of Prime Minister was created (via constitutional and legislative amendment) to accommodate the latter. The same happened in Zimbabwe where executive power was shared between the President and the Prime Minister.  In Botswana this would happen if the Botswana Democratic Party (BDP) and UDC decide to make the 2008 Kenya arrangement. Unthinkable, but not impossible, in political terms.

In Lesotho, which is a constitutional, democratic, parliamentary monarchy, the political practice for many years (as was the case in other parliamentary systems) was that the dominant party had all the majority votes and coalition politics did not occur. However, in 2012 elections, the outcome produced a ‘hung Parliament’ with no majority party.

The leader of the smaller coalitions (Thabane) was, as a result sworn in as Prime Minister. However, in the 2015 election, the former Prime Minister (Mosisili) put in place even a larger coalition of parties that saw him get back into office.

Mosisili was later removed from office by a vote of no confidence and Thabane is back to office (after the February 2017 election). In Lesotho, the King is obliged to appoint as Prime Minister, the person who has the confidence of Parliament, and the Courts have interpreted this to mean the person who commands the majority of members of the legislative assembly.

First, there is no explicit provision that prohibits the formation of a coalition government in Botswana’s constitutional and legal system.

The absence or lack of a governing coalition in Botswana appears to be a product of its past politics, as opposed to a legal prohibition of such a practice.

In Kenya, there was no law governing political party activities, including formation of coalitions until 2011. In Africa, Nigeria, Tanzania, Uganda and Zimbabwe, have all experienced coalitions of one form of the other.

A cursory review of the political practices is that the phenomenon of explicit political party regulation is a fairly recent phenomenon in Africa.

Currently, there are no legal or constitutional provisions governing the manner in which coalitions can be formed or operate in Botswana. The absence of regulation of this aspect is also traceable to the history of the politics of Botswana.

Specifically, given the stable manner in which the BDP operated through the decades (right from 1965), there was no political occurrence (as may be the case now) that would have contemplated the development of a constitutional or legal framework to govern a coalition arrangement.

However, the shift of politics (which, as can be seen from the analysis above, is not unique to Botswana) and the formation of coalitions is a possible political answer, should one party fail to achieve an out- right majority.

Secondly, and partly as a result of the situation above, the Constitution and relevant legislation in Botswana does not place a central emphasis on political parties, but aspiring and or individual Members of Parliament (MPs) in the process of election of a President. There are three grounds that come to mind to support this:

The absence of any provision regarding the role of political parties in formation of government can be construed as favouring the individual role of MPs as opposed to political parties

The First Past the Post (FPTP) system of electing constituency representatives, appears, by all means, to favour a candidate (as opposed to party) centred political system. Indeed, in many FPTP systems, the role of the individual MP is more pronounced than that of the party label. 

Lastly, the Botswana political system is inherited from the British tradition (with modification of course, that import presidential features) and a lot of the political practices and traditions of the British system (including coalition government) may be relied upon should it become necessary to constitute a coalition government.

The constitutional threshold to be met (when one scrutinises Articles 32 and 35 of the Constitution) is whether a presidential candidate garners more than half of the support of successful parliamentary candidates and or new MP – the latter only if it becomes necessary to elect a President from the floor of Parliament.

The Constitution, it seems (on the face of it) is least concerned about how the number of votes of a presidential candidate are arranged. It seems plain that the constitutional and legal provisions are wide enough to allow any model of cooperation among the political parties.

While there is no explicit provision regarding the formation of a political coalition, the spirit behind Article 32 (specifically the requirement for a parliamentary candidate to declare support for a presidential candidate) leans towards pre-election pacts between political parties.

The Constitution envisages that a contender must have an idea of a presidential candidate (and the party label) before the actual election. This may support the formation of a pre-election coalition or coalitions.

However, there is no provision in the law or the presidential election law that prohibits any arrangements that can result in more than half of the votes for a particular candidate.

Accordingly, any political arrangements made (at any stage) to secure voting for more than half of the votes should, in my view, pass the constitutional and legal muster in Botswana.

The process of government formation in Botswana, as in other countries, is not only a political process, but is also a legal/constitutional question, that largely unfolds on the basis of fundamental constitutional principles and logic.

If any legal issues arise at any stage, following the verdict of the people, impacting on the formation of government, the

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nature and character of our constitution, its parliamentary and presidential aspects, the traditions and conventions of its parentage, its stipulations and logic, would have to be methodically interrogated and applied.

Significantly, the premise of departure, in terms of the design aspect of the constitution is the constitutional imperative that we are a republic in which the constitution is the supreme law. Some aspects of the conventions and traditions of our parentage as a nation may have to be unearthed should that become necessary.

The constitutional and legal scheme of our republic holds sacrosanct the right to vote and stand for election and gives every citizen of Botswana the right to take part in the conduct of public affairs, directly or through freely chosen representatives.

Essentially, the constitutional scheme established a representative constitutional democracy in terms of which the MP represents a majority of the electors, in the context of the first past the post electoral system.

In terms of our constitutional scheme the government is responsible to a Parliament, and the judiciary is the guardian of the constitution.

It would be preferable if the matter of formation of government is settled by the legislature rather than the courts. The courts are often ill-suited to settle questions with political consequences.

Every constitutionalist knows the debate that followed the Al Gore v Bush decision by the US Supreme Court over a decade ago and the scathing dissent in that judgment. Some scholars are adamant that the decision to pronounce Bush duly elected was at variance with the wishes of the people.

Ultimately the legitimacy of the government of the day rests on the broader will of the electorate expressed through the doctrine of representation in parliament. 

So, in a nutshell, no government can legally form if it offends the fundamentals of the constitutional scheme that I have sought to paint in broad strokes above.

In our constitutional scheme, in order to form a government, the constitutional stipulations and logic and the actions of Parliament, the heartbeat of our representative system, are critical.

Legally, the actions of the Members of Parliament are exercised freely, since ours is a free mandate system, without the shackles of the party apparatus.

It is often contended by constitutional scholars that at the heart of the free mandate system is the freedom of elected representatives to take decisions contrary to the will of the party to which they belong.

It appears that Botswana places the right to elect the President in the hands of the aspiring MPs, as a first option. There is no direct election of the President by the voters.

Where, for whatever reason, the first option fails to produce a President, Parliament has to step in to produce a president. Section 32 (1) of the constitution states that whenever Parliament is dissolved an election shall be held to the Office of President. Section 32(3) (a) states that a Parliamentary candidate may at the time of nomination declare which of the candidates in the election of President he or she supports. (Nomination of MP remains valid even if he/she does not nominate president).

Section 32(3)(b) provides that such nomination shall not be made in relation to any Presidential candidate UNLESS that candidate has signified, in such manner as may be prescribed by or under an Act of Parliament, his or her CONSENT to the making of a declaration in his or her favour by THAT Parliamentary candidate. 

This means the President must consent to be nominated by THAT Parliamentary candidate. It may or may not be significant, if upon close scrutiny it is found that the Presidential candidate did not consent to being nominated.

The constitution provides that if no presidential candidate reaches a magical figure of 29 endorsements from successful parliamentary candidates, in terms of the first option, the returning officer shall declare that: ‘no candidate has been elected’. I have not been able to establish who precisely qualifies to stand as a presidential candidate in the event the election of President moves to the National Assembly as section 35 (5) seems to suggest that it is, ‘a person’.

This may or may not be vague but it is capable, depending how it is interpreted, to produce unexpected results. I had always thought the candidate for President must come from members of the National Assembly, but looking for this particular section became a rather elusive exercise, as it always happens in legal matters. It may be there but cannot vouch for it!

Once a person is elected President that person he/she has the power under section 42(3) of the constitution to appoint ministers and assistant ministers. The only constitutional limitation is that the President must appoint “from among Members of the National Assembly”.

The constitution permits the President to appoint specially elected members of parliament from amongst persons who are not Members of the Assembly but are qualified for election as such.

Clearly, the constitution does not require Ministers or Assistant Ministers to belong to the same political party as the President.

The centerpiece of Botswana’s system of government, which is part of the Westminster heritage, is that the government of the day must enjoy the confidence of the National Assembly. 

In Botswana, MPs are elected at the general election for a maximum term of five years. Commonly, one party has a majority of seats in the National Assembly, and such party forms a government.

In terms of Botswana’s legal/constitutional scheme, in terms of the Presidential Elections Act, a candidate who has received the majority of endorsements of elected Members of Parliament is entitled to be elected president.

If any party fails to produce a President, by virtue of not being able to garner a majority of MPs who may have legitimately endorsed the Presidential candidate through the Presidential Elections route, enabling the Returning officer to pronounce a presidential candidate as duly elected before the first sitting of Parliament, the country would clearly be in the throes of a hung Parliament requiring a President to be elected at the first sitting of Parliament or thereafter.

However, if the elections set for October 23 produce a result in which no party has a majority of members in the National Assembly, then the country would be thrown into politically and legally unchartered waters.

This is known as a ‘hung Parliament’. Botswana has no established experience and precedent with hung Parliament largely because of the dominance of the governing party over the years and the constituency based electoral system that tends to invariably produce a single party majority in Parliament.

The constitution provides that if the returning officer declares that no candidate has been elected President in terms of the first option, the new National Assembly shall meet within 14 days after the ascertainment of the election results to elect a President.

Such an election shall take place before the election of Specially Nominated Members of Parliament. A person elected to the office of President shall assume office on the day upon which he is declared elected after being duly sworn.

It would seem that the fundamental principle that the government must at all material times enjoy the confidence of the National Assembly is applicable in Botswana to both clear majority situations and situations of hung Parliament.  In summation a cursory and preliminary scan of the legal/constitutional landscape to possible formation of government suggests that:

Political parties/ presidential contenders can enter into a coalition government  There is no constitutional/ legal provision that explicitly bars such arrangements As a general rule that which is not prohibited may be done  The silence in the laws means that there is implied latitude on how parties/ presidential contenders can arrange for votes in their support 

There is a possibility that all types/ nature of coalition (including that of minority parties) can be formed 

Until there is a law governing the form and structure of coalition governments, the constitutional and legal space allows all forms of such coalition building 

It would even be more interesting if it turns out that ‘a person’ may be a candidate for the Presidency if the election of President moves to the floor of the National Assembly.

*Dingake is a former justice of the High Court. He is currently Judge of the Supreme and National Courts of Papua New Guinea.



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