The justification that has been given for automatic succession is that it ensures stability. Effectively what proponents of automatic succession are suggesting is that our constitution provides for distinct and horizontal tests to be applied to our leadership election laws.

On the one hand we have the test of a democratic society and on the other that of a stable society. In my view there is no basis in our founding document for such an approach. Even if the latter test is obtained, it would not be on par with the test of a democratic society. Acceptance of automatic succession under the test of stability cannot supersede its failure under the democratic society test. Even the sponsors of automatic succession have never attempted to set forth a democratic justification for its existence.

I have above focused on basic principles but will now proceed to deal with the purely legal significance of the Masire disclosures in so far as they relate to automatic succession. In terms of our constitution a sitting president, who gets into a composition with his creditors immediately ceases being president. A composition is a situation where a debtor agrees with his creditors that they will accept less than what they are owed. The drafters of our constitution cannot be held to have meant that a debtor who cannot get any further loans from his bankers due to his inability to repay can be in a better position than one who enters into a composition with his creditors and has not yet paid.  It has been disclosed ( Sunday Standard of 17 January 20010) and not denied by Rre Masire that in 1987 his alter ego, GM5 proposed to his creditor De Beers that they accept an amount less than what he owed. There is nothing to suggest that they did not accept the proposal. That by any measure is a composition. It is further said that the loan was to help Masire by relieving him of debt. He has not denied that the loan was really for his benefit. There is therefore no doubt as to who actually owed De Beers and who entered into a composition with De Beers.  

We are told that at the end of his tenure again Masire was in trouble with his creditors, hence the bail out from De Beers. This again suggests that prior to the end of his tenure Masire was unlawfully president of this country. It therefore follows that any laws that Masire assented to at this time were not properly made laws of this country, for they were assented to by a person who was not lawfully president of the Republic of Botswana. As we all know Masire assented to the constitutional amendment that supposedly ushered in automatic succession. This suggests that because the amendment was assented to by a person who was not legally qualified to do so it is not part of our law. 

There is a human rights perspective to the disclosures. If I am correct about what I set out above, and I believe that I am, those who were hanged on the basis of warrants signed by Masire were killed unlawfully and their families can successfully initiate and prosecute wrongful death suits against the state and Masire. The same applies to the period between April 1998 and October 1999 and the period between April 2008 and October 2009.

This is because both Mogae and Khama exercised the powers of president on a law that was assented to by a person who was not lawfully qualified to do so. Except for Rre Khama who enjoys protection under our constitution the other gentlemen are ripe for the taking.

The sad thing about what is taking place is that I actually warned Khama to go to parliament to get the people’s nod. In my view it does not make sense for a royal born, to rise to the throne through the back door. Seretse had set out an imperfect process, but it had pretensions of being democratic.

At least a successor was to be chosen by the elected representatives. The unlawful amendment on the other hand moved us far away from any pretensions at democratic succession.

I am reminded here of the song by the maestro,Ratise Sethako, who sang, “ Seretse ke mutwa wa noko, o a thaba, gaa tshwarwe ka diata”. All three successors are getting their fingers burnt because they dared put their fingers in the democracy jar left for us by Seretse. They should ask themselves, why even with the best legal brains around at their disposal they still ended up in this mess. The troubles for the three presidents are self inflicted. They never really appreciated and respected what Seretse had done. In fact they have never ever respected us.

The 1962 constitution of the BDP sets out one of its aims as the establishment of democratically elected councils.Why should a party with such a founding ideology hang onto a process that is at odds with this ideology? Chieftainship ensured stability but we still abandoned it in favour of democracy.

Why should a clearly undemocratic process survive on the basis of stability? Sometimes our leaders just fail to appreciate simple things. In the process they generate unnecessary conflicts. For a little while they are able to resist all efforts to make them see sense. But eventually they will succumb, for it is unnatural for wrong to persist forever. 

In interpretation of statutes every word must be given a meaning. What meaning is given to the words “ a person who exercises the functions of president by virtue of Section 35(1) or 35(2) does not have power to dissolve parliament” if Rre Khama as a Section 35(1) president was still be able to dissolve parliament? No amount of legal sophistry can justify how we went to elections in October 2009. We went to elections in direct violation of our constitution. Not only did we have an illegitimate succession in 2008 we have followed that with an illegitimate election founded on an unconstitutional dissolution of parliament. We may fool ourselves into thinking these actions have no consequences, but they do. No nation can ever be held together by disregard for its own founding law.

Any sitting president must ask himself a simple question: In the absence of a declaration of assets law, how will my people know that I am not falling foul of the constitution? The current situation where there is no declaration of assets law reminds me of a movie I once saw. A punter was asked to guess a number that a stall proprietor was thinking.

It does not take a genius to know that the punter never won. By refusing to declare his assets and liability a president places us in the same situation as the unfortunate punter. I do not believe that a president who respects us can find this situation acceptable.

A sitting president is obliged to disclose his assets and liabilities position, so that the nation can know that he is constitutionally entitled to occupy the office.  Rre Khama must therefore declare his assets and liabilities. Declarations by ministers to the president are with respect a lesser concern.

The BDP flirts too much with contradiction, sooner or later the strain will be too much and it will fall apart. It is not difficult to see why they were given legal advice that goes contrary to their founding ideology. The trouble is the BDP leaders are getting bad legal advice. How can party lawyers represent a person who sues the party president?

Good old-fashioned common sense suggests that this does not make sense. Our leaders seem to think they can touch the soul of this country and do with it as they please. Nothing could be farther from the truth. We may not have fought any independence war but we definitely know how to fight a post independence war. Our people are not fooled by the interpretation being given to our constitution to justify an undemocratic process. Sooner or later the house of cards will collapse. It is better to let go now than to be seen to being forced to let go. As sure as night follows day our leaders will let go.

I believe I have set out enough material for the President of the Republic of Botswana and the BDP to abandon automatic succession without losing face. I do not think Masire will object to being the sacrificial lamb. Automatic succession is his baby. From past media accounts he does not seem to be too keen to protect the baby.