Constitutional review is overdue
Dithapelo Keorapetse | Friday March 24, 2017 15:39
When these African countries matured, they decided to write their own constitutions with no input by outsiders, especially their former colonisers. Botswana is one of those countries with old donated Constitutions.
The 1963-1964 Constitutional talks, held in Lobatse were between the then colonial masters, chiefs and representatives of few political parties existing at the time. At the time most Batswana were illiterate, let alone politically developed. The country was very poor.
There was no intelligentsia and no professional bodies such as the Law Society of Botswana and other civil society organisations. There wasn’t much consultation and even if there was, very few Batswana could understand what was required of them in terms of their contribution to the constitution. Consequently, few Batswana meaningfully participated towards the development of Botswana’s Constitution.
Contemporary Botswana is far much better. It is relatively developed. There are many civil society organisations, academics (with UB Professors of law), professional institutions, business interest groups, and trade unions, groups representing marginalised groups and or “minorities”, youth, women and many other stakeholders with full understanding of the subject matter. Politically, there are more political parties with insightful, vibrant, intelligent politicians who are well grounded on issues.
Therefore, there is a need to mobilise resources for a comprehensive review of the constitution and it is essential to call together as a matter of necessity a constitutional review commission and a national constitutional conference where the joint knowledge of the people can be sought regarding the development of the country’s constitution.
Botswana is a supposed democracy; in fact, it is revered for its sustenance of liberal democratic principles since independence; it has never postponed elections. However, there are debates about the extent to which the country’s constitution enshrine democratic principles and the manner in which its strong soft autocratic state conducts the country’s affairs. Jurists have observed that Botswana’s constitutional development has been made by judges adjudicating cases in the courts. But it has been argued that judges don’t make the law as this is the responsibility of the legislature and that for this reason, Batswana and Parliament should enact a new constitution.
The ruling party has been arguing for many years on calls to review the Constitution that a piecemeal approach towards developing the Constitution is the best method purportedly because it is cheap and that there is no urgent need for overhaul.
However, on that the exercise of Constitutional review would be expensive, it is difficult to place a price tag on democratic values.
We have an opportunity as a country to reclaim our rightful place in the continent and the world as a shining example of true democracy by modernising our democracy through developing the constitution and accordingly our democratic institutions.
There is a need for improvement and or establishment of new key democratic institutions including watchdog institutions or institutions supporting democracy such as the Human Rights Commission, Media, Ombudsman, Auditor General, etc.
It is important that Botswana constitution is aligned to international democratic standards and that Batswana, united in their diversity, meaningfully participate towards constitutional development. All generations of human rights must be protected by the constitution which is currently not the case. The powers of the President vis-à-vis other institutions have to be examined. Parliament’s powers and independence should be enhanced. The judiciary must be more independent and have integrity.
For many years academics, lawyers, opposition political parties, media and other pro-democratic Batswana have been bewailing the powers of the presidency. Pierre du Toit correctly observed in 1995 that one of the distinctive traits that emerged in the democratic politics in the post-independence Botswana is that at the national level, presidential politics dominated other aspects of parliamentary process.
The executive power of the republic vests in the president (Section 47(1) of the Constitution of Botswana) and he shall act in his own deliberate judgment and he is not obliged to take or follow any advice tendered to him by any person or authority (Section 47(2).
Key Dingake argued, in his 1999 book-Key Aspects of the Constitutional Law of Botswana, that this effectively authorises the President to rule single handedly and/or authorises dictatorship and that it is difficult to comprehend the wisdom behind this provision considering that in Botswana the President is not directly elected.
Dingake further cautions about section 41of the Constitution in the same book that the president is effectively above the law as long as he holds office. This perhaps why he was restricted from presiding over Motswaledi’s case notwithstanding the case management system which had picked him.
Botswana Congress Party, decrying the powers of the President, promised in page 16 of its January 1999 Democratic and Development Programme that it will “transform the state by reducing the powers of the presidency and devolving those powers to other democratic structures such as Parliament and local authorities”.
Kenneth Good has described Botswana as an authoritarian liberalism and substantiated his arguments by pointing to sweeping constitutional powers enjoyed by the President. He argued, back in the days, that these powers undermine and negate the principles of popular participation and transparency.
After the Gomolemo Motswaledi’s case against President Ian Khama, many Batswana realised with shock that the President’s powers are accompanied by important immunities, and he is protected constitutionally against any civil or criminal proceedings regarding either his official or his private capacities while he holds office.
It must also be noted that Parliament has no authority whatsoever to remove the President even on account of serious misconduct, serious crime or misdemeanor or breach of the constitution or any law. The Constitution does not provide for impeachment of the President but provides for motion of no confidence on the Government.
The Constitution must be reviewed in part to provide for impeachment of the President by Parliament for felonies, misdemeanors, misconduct and breach of the law. The Constitution must provide that the President can be sued for civil or criminal wrongs.
Botswana doesn’t need strongmen to lead it; it needs strong democratic institutions and liberal democratic constitution reflecting the aspirations of the people. Batswana have spoken unequivocally in an Afro barometer study that they detest military style of leadership, dictatorship or one man’s rule. They should affirm this principled conviction in a constitutional review exercise.
President Ian Khama is due to leave office in March 31, 2018. There are rumors that he or some in the ruling party may propose a Constitutional review to allow for direct election of the President in which he may be a candidate thereby prolonging his stay in office, albeit under a new dispensation.
This is definitely not what progressive elements have in mind about Constitutional reform. It may be correct that the President may not be opposed to the idea of Constitutional reform but would not favour a reform that would satisfy societal expectations.
It is possible that if Constitutional reform is spearheaded by the Executive, it may further strengthen executive power over the judicature and Parliament. Calls for Constitutional review emanate from excessive constitutional and other discretionary powers of the President vis-à-vis other democratic institutions.
Constitutional reform advocates are calling for more powers and independence of Parliament and the courts so that these institutions can provide effective checks and balances on the government. If the Executive proposes a Constitution that would entrench more dictatorship like the current document, Batswana must reject it outright.