Constitutional amendment Bill out
Keto Segwai | Monday March 18, 2024 06:00
The Bill, published on March 12, 2024 in the Extra-ordinary Government Gazette, is expected to be presented before Parliament by Minister for State President, Kabo Morwaeng.
According to the draft Bill, the object is to amend the Constitution following the approval by government of the recommendations of the Presidential "Commission of Inquiry into the Review of the Constitution of Botswana “as agreed to and varied by Government Paper No. 1 of 2023.” The proposed amendments effectively disqualify former presidents from elective political office.
It states that any person who has served as president for an aggregated period of 10 years, “shall not qualify for election as president.” It further states that a retired president “shall not actively engage in politics.” It also calls for disqualification of retired presidents from being President, Vice President, Cabinet Minister, Member of Parliament or Speaker.
The proposed amendments come at a time when the feud between President Mokgweetsi Masisi and former president Ian Khama has reached fever pitch, with the latter’s recent harmful manoeuvres against government. Khama returned recently from a tour that included joining an anti-trophy hunting ban campaign in the United Kingdom and the alleged machinations to get the Estonian President, Alar Karis, to cancel his planned State visit to Botswana. He was on a four-day state visit to Botswana last week. On the other hand, the Bill proposes to limit “membership of the National Assembly only to citizens, including in the case of dual citizenship persons who have renounced the citizenship of the other country.” The proposed amendments effectively lock out Khama from any elective office in government.
The Bill also makes the office of Speaker out of bounds for retired presidents as well for sitting President, Vice President, Minister, Deputy Minister or a public officer. It is neither open to those with dual citizenship. Obviously, in an effort to deal with the defection of Specially-Elected Members of Parliament (SEMP), the Bill proposes for such MPs to lose their seats when they defect.
The Bill states that the defecting SEMP are therefore, “disqualified from holding a seat if they resign from the political party they were a member of at the time they were elected, and where they were not a member of a political party at the time they were so elected, if they become a member of a political party while holding the seat.” It further states that, “An Elected Member or a Specially Elected Member of the National Assembly may be removed from office for misbehaviour in such a manner as may be prescribed in the rules of procedure of the Assembly.”
The Bill also proposes to replace the title of Assistant Minister with that of Deputy Minister. There is also an amendment proposal for Ntlo Ya Dikgosi, which at this stage is not clear. The Bill proposes that, “There shall continue to be a Ntlo ya Dikgosi for Botswana which shall consist of two persons from each administrative district, which persons for the time being perform the functions of the office of Kgosi in respect of any area within such administrative district; and persons who shall be appointed by the President.” Clarifying further : “The two persons for the administrative districts referred to on section 77 (a) may be selected according to the established norms and practices of those administrative districts; or in accordance with the provisions of any Act of Parliament.” The proposal states that the amendments will “enable the Constitution to provide a vires for Parliament to enact the necessary legislation which will determine the criteria used to select Members of Ntlo ya Dikgosi in a more neutral manner and not along tribal lines.” In a landmark amendment, the Bill seeks to enshrine the right to health, education and work in the Constitution. This seeks to ensure that the State respects, protects and fulfils the right to health, education and work and “further ensures that the enjoyment of such rights is subject to measures reasonably justifiable in a democratic society.”
The Bill proposed to entrench in the Constitution the right to collectively bargain and strike. It also seeks to protect and prohibit discrimination of “intersex” persons and persons with disability. “No person shall be treated in a discriminatory manner, attributable wholly or mainly to the person’s disability, by any person, public office or public authority,” it reads in part. It seeks to respect, protect, promote and fulfill the right, including in particular recognising and promoting the right of persons with disabilities to be treated with dignity and respect; reasonably access educational institutions and facilities; and reasonably access all places, public transport and information. “The expression “discriminatory” means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed, disability or sex (including intersex) whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages.
“The expression “intersex” means a person born with any of several sex characteristics, including chromosome patterns, gonads and genitals that do not fit typical binary notions of male or female bodies.” The Bill also seeks to address some issues that had been of national concern. Regarding the appointment of the Secretary of Independent Electoral Commission (IEC), the Bill proposes that the President submit three names to Parliament for assessment and interview prior to appointing one of them to the position of Secretary. Likewise, in the appointment of Chief Justice and President of the Court of Appeal, the President will submit three nominees to the Judicial Service Commission (JSC). It also proposes to amend the Constitution to reconstitute the JSC to include the Permanent Secretary in the Ministry of Justice, a qualified auditor and a legal practitioner.