Reflections of my life journey, constitutional review in Botswana and African leadership challenges Pt 2
Hon Justice OBK Dingake | Monday September 25, 2023 06:00
Secondly, in many legal systems, Constitutions are superior to all other laws, making them critical tools for overturning discriminatory legislation.
For instance, in India, in 2017, the Supreme Court ruled that the traditional practice of “instant divorce” in Islamic marriages, which allowed men to legally divorce their wives by saying the Arabic word for divorce three times, violated the Constitution’s protection for gender equality.
Thirdly, modern Constitutions refer to or acknowledge the binding nature of certain international human rights instruments. This enhances the protection the Constitution offers to people.
Fourthly, Constitutions can protect people from policies that undermine equal rights.
Fifthly, Constitutions are important in shaping public policy and programs.
Finally, Constitutions are an important tool for civil engagement, education, and activism. In India, activists undertook a 115-day march to establish a Constitutional right to education. In Kenya, civil society groups published copies of Constitutions in Braille. In Germany, newly arriving refugees receive copies of a Bill of Rights in Arabic.
With all the above in mind, it is important to say, as I always do, that a Constitution is not a panacea for all societal ills. It is a promissory note. It requires judges who can transform these promises into tangible deliverables when called upon to do so.
A Constitution must guarantee human rights to all, good governance, and accountability. It must make it possible for ordinary people to enjoy the fruits of their labour; to enable them to access opportunities in a fair manner and encourage them to generate wealth for their families and the nation; it should guarantee security for everyone and oblige the government to meet the basic needs of life: food, health, water, shelter, and clothing. It needs to ensure a caring and transparent government that translates into opportunities for all by ensuring that the laws are just and observed by all, including the rulers.
With the above in mind, a constitutional review is a rare opportunity offered to a nation to ensure that everyone contributes to the establishment of ground rules that will ensure that each one of us and future generations have a fair and equal chance in life to succeed and be happy people. Every constitution review process might be approached from the history and circumstances of a given country. There is no one-size-fits-all model of constitutional review. Most of the post-independent African countries entrenched human rights in a half-hearted manner, introduced low-key accountability mechanisms, and concentrated power in the hands of the presidency or central government. The independence of many institutions meant to support democracy, such as human rights commissions, the office of the public protector, anti-corruption bodies, and judiciaries, was suspect.
An Overview of the Botswana Constitutional Review Process The 1966 Botswana Constitution is a colonial relic. It has served us well generally, but it is no longer fit for purpose. It is overdue for far-reaching renewal. It has many weaknesses that can be instantly fixed, such as requiring it to expressly state that it is the supreme law of the land and to expressly recognise separation of powers, key components that, in my mind, constitute the unalterable basic structure of the Constitution. The Constitution is not gender-sensitive, and the electoral system mandated by the Constitution tends to exclude women from national political decision-making. As it is often said, no country can claim to be democratic if half or more of its population is excluded.
The Constitution lacks independent institutions that support democracy, a bill of rights that recognizes all human rights, and concentrates too much power in the Presidency. The Constitutional architecture is such that Parliament ends up being a rubber stamp of Executive decisions. The Constitutional review process raises opportunities for devolving power to local government units, strengthening equality and non-discrimination clauses in the Constitution, and outright outlawing many other discriminatory legal provisions and practices.
A review of the Constitution would also provide opportunities for the Botswana Government to domesticate all international, regional, and sub-regional treaties or protocols it has signed, such as the Maputo Protocol.
Review of the Constitution of Botswana
A committee that was established to consult Batswana on the review of the Constitution is called The Presidential Commission of Inquiry into the Review of the Constitution of Botswana. The above name, in many respects, tells a substantial part of the story about the nature and character of the Commission. The review process that started in December 2021 was one of the quickest in history. It was carried out over a period of about nine months and was not preceded by any stakeholder engagement or civic education. The absence of civic education was apparent from most of the commentary that was offered in many public platforms that the commission addressed. Based on the commentaries that were made, one wished that civic education preceded the process. Having taught Constitutional law at law school, I know for certain that if I were to walk into a law class and without offering the lecture, asked the students to evaluate the strengths and weaknesses of the Botswana Constitution, many may find the question difficult, but the appreciation of the subject matter may improve substantially after the lecture. The same is true with the Constitution review process, in which we want people to assess the strengths and weaknesses of the Constitution.
In December 2021, President Masisi appointed a Constitutional Review Commission headed by former Chief Justice Dibotelo. The Commission was established under the Commission of Inquiries Act, which required the Commission to report directly to the President. This approach, quite self-evidently, gave the impression of a partisan approach. The process could not be said by any standard to have been ‘people-driven’.
The terms of reference of the Commission included the following: • ascertain from the people of Botswana their views on the operation of the Constitution and in particular, the strengths and weaknesses of the Constitution; • assess the adequacy of the Constitution, in particular by asserting Botswana’s identity, principles, aspirations, and values; • articulate the concerns of the people of Botswana as regards the amendments that may be required for a review of the Constitution; • conduct inquiries and obtain information from sources that the Commission considers relevant in the exercise of its mandate; and • make any recommendations on the review or amendment of the Constitution.
It is difficult to assess the extent to which civil society engaged with the process. What seems clear is that a significant section of civil society and political opposition considered that the process was not inclusive and transparent. The political opposition rejected the process as illegitimate. It is unclear to many people what exactly remains to be done and when exactly should Batswana expect a revised Constitution. The Botswana Constitutional Review process is, in my respectful view, “a dream deferred”.
There are two important features of Constitution making or review: process and content. The two features are equally important. I will discuss them briefly.
Inclusivity
The Constitution-making process must be inclusive. All key stakeholders must be involved in the key elements of that process. There is, of course, no single approach to a constitutional review exercise. But best practice suggests that calling a stakeholders’ conference in which key stakeholders like political parties and civil society can participate is a good idea. At this initial stage, where such a conference is called, stakeholders would deliberate about the Constitution as it is, and the need to review, debate and agree on the best way of going about the exercise, including who the commissioners would be, their terms of reference, criteria for selection, the need for the commission to represent the demographics of the nation, the scope, civic education, how it will be carried out, the need for a referendum, and timeliness for each activity.
It is common and acceptable that these processes are often led and facilitated by the government, which is also expected to set aside adequate resources for the exercise. But facilitation does not mean the imposition of anything.
In South Africa, the process was understandably drawn out. The consultation was thorough. The parties developed 34 Constitutional principles that would guide the process. The Constitutional Court had jurisdiction to determine any complaint relating to non-compliance with the agreed principles, and about 2 million submissions were collated from the people. Legitimacy and educating the people about the Constitution are some of the key advantages of a people-centred Constitutional renew process.
Costs
The costs of an inclusive process are that it is expensive and highly time-consuming, and the temptation to take shortcuts is always very high. The other disadvantages are that power brokers can always hijack the process. Popular participation can also add legitimacy to populist pressures that infringe or violate minority rights.
Process Gaps
One of the outstanding and glaring gaps is manifested by the name of the Commission. This was a Presidential Commission established in terms of the Commission of Inquiries Act. As the name suggests, it is accountable to the President. It was not people-driven. And the fact that it was accountable to the President means it cannot be said to have been non-partisan or independent. The first term of reference requires Batswana to be consulted about the strengths and weaknesses of the Constitution. This term presupposes some functional knowledge of the Constitution. This term may have served its purpose if the process was preceded by civic education.
A Cloud of Illegitimacy
The fact that civil society and political opposition played no meaningful part in the conceptualisation of the process and its operationalization suggests that the process may lack public ownership and raise questions of illegitimacy.
Reflections on Substantive Receptions
Under this section, I propose to deal with only four or so possible areas of reforms that civil society may focus on, for purposes of advocacy and lobbying. These areas are a transformative bill of rights (equality and anti-discrimination clauses), reform of the electoral system, and strengthening the independence of the institutions that support democracy.
Inclusion of Socio-economic Rights
Botswana’s Bill of Rights was fashioned along the European Convention of Human Rights of 1952. It does not recognise socio-economic rights. It is hoped that the new constitution will recognise socio-economic rights.
Equality and Non-Discrimination
The discussion under this head focuses mainly on women and persons with disabilities. Equality and non-discrimination are core international human rights. It is not enough to entrench formal equality provisions in the Constitution that do not consider the historic discrimination and inequality that women have and continue to experience. An effective approach to covering all sorts of discrimination in a Constitution is to offer a broad definition of discrimination that includes (i) both direct and indirect discrimination; (ii) recognition of multiple forms of discrimination; (iii) application of prohibitions to both private and public persons/institutions; and (iv) a clear complaints process with remedies.
Article 14 of the Botswana Constitution embodies the general principles of equality before the law and equal protection of the law. Article 15 (1) and (2) prohibit the state from discriminating against any citizen on any of the listed grounds, which include the following: race, tribe, place of origin, political opinions, colour, creed, or sex. The ground of sex was initially not there. It was added after 1992 following the locus classicus case of Dow v. the Attorney General. Since then, the courts in some cases have ruled that the list is not closed and that any ground that is irrational is not permissible. As a result, the courts have ruled that it is not permissible to discriminate based on health and marital status.
The definition in the Constitution of ‘discriminatory’ is narrow, thereby narrowing the scope of the protection. Equality is formal but not substantive. The protection is limited to discriminatory laws and does not equate to a prohibition on discriminatory behaviour or practices in society more broadly.
The Constitution contains several exceptions to the prohibition of discriminatory laws. These exceptions include laws making provisions for "adoption, marriage, divorce, burial, and devolution of property on death or other matters of personal law." These exceptions authorize discriminatory laws in these areas of law and contribute significantly to the inequality between men and women in Botswana.
The Constitution review process is an opportunity to expand the scope of Section 15 of the Constitution to include a definition of discrimination against women, covering all prohibited grounds of discrimination and encompassing both direct and indirect discrimination, in line with Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
The list of grounds upon which it is not permissible to discriminate leaves out other grounds such as membership of a national minority, property, birth, age, or other personal or social circumstance, gender, pregnancy, marital status, and sexual orientation.
It may be good for civil society to prepare papers around the following themes that include the actual wording of the Constitutional provisions: • Review the definition of 'discriminatory' in Section 15(3) of the Constitution to include direct and indirect discrimination. • Expand the list of protected attributes in Section 15(3) of the Constitution to include gender identity, sexual orientation, age, marital status, disability, pregnancy, and parental status. • Expand Section 15 prohibition on discriminatory laws to also apply to policies; eliminate the exceptions in Sections 15(4), (5), and (7).
Stand-alone provisions on Women's rights
It may also be a good idea to have stand-alone provisions on women's rights like the provisions in Malawi and Zimbabwe:
The Constitution of Malawi states: "Any law that discriminates against women on the basis of gender or marital status shall be invalid, and legislation shall be passed to eliminate customs and practices that discriminate against women."
The Zimbabwe Constitution provides that:
"[T]he State must take all measures, including legislative measures, needed to ensure that (i) both genders are equally represented in all institutions and agencies of government at every level; and (ii) women constitute at least half the membership of all Commissions and other elective and appointed governmental bodies established by or under this Constitution or any Act of Parliament."
Discrimination based on disability
Research has established that persons with disabilities are among the most discriminated. In most countries, as indeed is the case in our country, adults and children with disabilities have the lowest access to education and work opportunities. In some countries, children with disabilities are excluded from schools or put in separate schools. Similar patterns play out in the workplace.
Research has also established that both children with and without disabilities learn well in inclusive classrooms. It has been proven repeatedly that inclusive classrooms enable interaction between students with and without disabilities and reduce bias. It is true that equality cannot be proved through segregation.
Our Constitution would be enriched if it domesticates certain core features of the UN Convention on the Rights of People with Disabilities (CRPD), which was adopted in 2006. The CRPD made history as the treaty with the largest number of signatories (82) on its opening day and thereafter became one of the most quickly ratified treaties ever adopted. Botswana is among the countries that have ratified the Convention.
The CRPD acknowledges that how societies are constructed shapes whether a given situation is disabling. It says that: "disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others."
Reforming the electoral system
Botswana operates the first-past-the-post system, in which the winner takes all. Although the system has been said to be good on accountability, it allows a government elected by the minority of the population to govern, to the exclusion of other power blocks with a significant following. Reforming the Botswana electoral system can improve our democracy. Although our electoral system has many strengths such as stability and accountability, it tends to exclude many disadvantaged groups, such as women, youth, and persons with disabilities.
It may be a good idea to debate whether we need the Constitution to prescribe quotas for women and other disadvantaged groups. The first-past-the-post electoral system is heavily skewed against women and other marginalised groups based on resources and historical reasons.
If quotas are considered necessary, say to improve women's representation, they can be applied in any one of the three most common electoral systems: first-past-the-post (FPTP), proportional representation (PR), or mixed-member proportional representation (MMPR).
The most effective combination is candidate quotas in a PR or list system, especially when this is based on a "zebra" style list of one woman and one man. In this case, regardless of what proportion of seats a party wins, women will constitute half of those who win. In several Southern African countries with a PR system, such as South Africa, Namibia, and Mozambique, ruling parties have adopted voluntary quotas that have led to a substantial increase in women's representation.
Strengthening the independence of the institutions that support democracy
Comparative Constitutional law suggests that there are many institutions that may be established to support or enhance democratic order. These institutions include the anti-corruption body, the Office of the Public Protector, Media Commission, Gender Commission, police complaints commission, and the Judiciary.
In Botswana, the independence of the anti-corruption body has been questioned. It has been suggested that it should be removed from the office of the president. The independence of the Independent Electoral Commission (IEC) has similarly been questioned. For instance, its inability to determine election dates has been a concern in some circles. The Judiciary is generally considered independent, especially when compared to all other institutions set up to support democracy, but of late, voices have been heard questioning the transparency of the process of appointing judges. As for the office of the public protector, both academic and public commentary suggests that it will best serve its functions if it is constitutionalised, and its powers expanded.
Botswana may also consider establishing in its revised Constitution, the Media Commission, the Human Rights Commission, and the Independent Police Complaints Commission, which it currently doesn't have. This may help enhance democracy and protect the nation better.
African Political Leadership – Reflections
Politics matter to everybody, even those who think it is a dirty game and would rather have nothing to do with it. If you try to disengage from politics, politics will never leave you alone. It is because of this all-pervasive phenomenon called politics that it would be dangerous to leave politics to politicians alone. Politics is too important to be left to politicians alone. This is because politicians exercise public power, for better or for worse. They are the primary holders, controllers, and distributors of power and resources in any given country. They can make or break any country. Africa is a living example of endless wars, conflicts, poverty, bad governance, an epidemic of bad laws, exclusion arising in part because of poor leadership.
For decades, our resources have been plundered by foreigners and our own political leadership. Corruption and greed have drained the continent of any growth potential. If truth be told, there is enough beneath the African soil to ensure that the needs of all our people are met. However, to the contrary, we see famine, disease, and want.
Post-colonial leadership is characteristically neo-patrimonial, afflicted by greed and an over-concentration of power in central government, leaving out local government structures that are closer to the people.
We have witnessed unconstitutional takeovers of governments, election rigging, and the general subversion of democracy without consequences on a disturbing scale. We seem paralyzed to act against the unconstitutional takeover of power, and this paralysis is fuelling coups in our continent. Our continent is experiencing a democratic recession of a fundamental kind. Democratic recession, absence of the rule of law, poor governance, weak and fragmented opposition, constrained civil society and media, and politicized armies remain issues of concern. The new crop of African leaders must be personally committed to the values of democracy, the rule of law, and governance in both words and deeds and must be rooted among the people they lead. They must regard politics as a relay and run their part and give others the opportunity to do the same. We must break down the debilitating cycle where every outgoing president weaponises the criminal justice system to hound the incoming president and learn to respect the voice of the people. Corruption and subverting the will of the people in any way and form must be treated as treasonable offenses.
The African transformative governance architecture, which includes the African Union (AU), the New Partnership for Africa’s Development (NEPAD), and the African Peer Review Mechanism (APRM), although timely and important, continues to be government and elite-driven. Important legal frameworks such as the African Charter on Human and Peoples' Rights, the African Charter on Democracy, Elections, and Governance (ACEDG), the Southern African Development Community (SADC) Treaty (and other regional instruments) that commit the continent to democracy, the rule of law, and good governance are honoured more in breach than in compliance. Sovereignty has become the ready-made antidote to democracy, the rule of law, and good governance.
As a new crop of African political leaders, it is your duty to reverse the current democratic backsliding that we see on the continent; find ways to end conflict, violations of human rights, and hunger, and create independent institutions that can support democracy and effectively address the underlying causes of Africa’s underdevelopment. I support the call that has been made by many before me that the continent must invest in an effective, well-resourced Leadership Academy under the auspices of the AU and continental civil society to ensure that the continent produces leaders fit for the purpose.
Finally, I hope that as our future leaders, you can embrace a new mindset that enables you to appreciate that true leadership is not about control but service, and that any exercise of public power must be justifiable and primarily geared towards empowering people. Your duty as future leaders is to inspire your followers to be better than yourselves in rendering service to the people.
As it is often said, inspiration is what makes people submit to the leader’s vision.
It has been a pleasure and a true honour to share my thoughts with you on varied matters that are important for our continent to reawaken and realize its true potential. The future of our continent is in your hands. All the best. I thank you for your kind attention.
*Hon Justice Professor OBK Dingake is Justice of the Supreme and National Courts of Papua New Guinea and the Residual Special Court of Sierra Leone. His speech was delivered on the September 8, 2023 to participants of an intensive nine month leadership programme organised by an organization called Future Elect. Participants came from five countries. This is the second and final part of his presentation