Automatic Succession: It is a seven-day presidency - Period
Kgosietsile Ngakaagae | Friday April 6, 2018 12:28
My learned friend, Tshiamo Rantao raised the issue of automatic succession on Facebook yesterday.
To be sure, he was echoing the views of others before and many now. Credit to all of them; Counsels Molake and Dick Bayford, amongst others, and thanks to Goemeone Mogomotsi for the reminder. But the issue is as new or as old now as it was then. And there is no running away from it. I reproduce Tshiamo Rantao’s post;
“Once again, I would like to congratulate our new president, His Excellency Mokgweetsi Masisi, on ascension to the highest office in the land.
That said, I have a niggling doubt that his ascendancy was constitutional, regard being had to section 35 of the Constitution which seems to me not to create room for automatic succession.
Section 35(1), read together with sections 35(3) and 35(4), seems to me to envisage a situation where the Vice President (VP) only assumes office temporarily pending the election of President by the National Assembly by a secret ballot under section 35(4) and in line with the procedure under section 35(5).
In other words, my reading of our Constitution is such that automatic succession is not provided for contrary to popular belief. Politically, I think Honourable Masisi would still be elected by the National Assembly due to the obvious ruling party majority, but I doubt that his assumption of office currently is constitutional.
I may be wrong, but if I am right, then those in authority should correct the problem in the interest of the rule of law. Should this be challenged in court, one imagines that there would be good prospects of success, and that could embarrass the nation”.
I have to make a slight correction. HE Mokgweetsi Masisi’s ascendance is constitutional by virtue of Section 35 (1). When the president dies, resigns or otherwise ceases to hold office the VP ascends to the Office of President.
The critical question is as to whether such ascension is fully substantive or whether it, constitutionally, is a stop gap measure pending a more substantive process.
Sub Section 2 of Section 35 of the Constitution deals with instances where there is no VP. As such it is irrelevant to the enquiry. We had a VP when President Khama ceased to hold office.
That’s where Sub Section 3 of Section 35 becomes relevant. It speaks to Sub Section 1 of the same section which speaks to what happens when a President ceases to hold office by reason of death, resignation or other reason including, clearly, end of the 10-year constitutional term. Sub Section 1 is not linked in any way to Sub Section 2 which speaks to what happens in circumstances where there is no VP.
As such, Sub-Section 4 of the same section is applicable.
It mandates that the National Assembly must meet to elect a president within seven days where the office of President becomes vacant. Alternatively, the Speaker may convene the National Assembly earlier for the exercise.
It is imperative, however, that all must happen within seven days. At the expiry of the seventh day, the temporary constitutional presidency will end. In the present case, unless some corrective measure is taken, His Excellency ceases to be President on the night of April, 7. It’s a hard thing, after ascending to the highest office, to have people say that you are a seven-day president. But that is the design of our Constitution.
The Constitution doesn’t lose authority just because it has been mistakenly breached overtime.
Within four days’, parliament must meet to elect a president. Failing that, a state of presidential illegitimacy will subsist. My friend Joao Carlos Salbany argues, by reference to Section 4, that in lieu of an election, Parliament shall stand dissolved. I make no opinion on that.
I just hope we avoid a constitutional crisis. That’s all.
It must be noted that the powers of a seven-day president are limited, constitutionally. A person who ascends under the temporary dispensation has no power to revoke the appointment of the VP, or to dissolve the National Assembly.
A fully substantive president would not be so limited in the exercise of general constitutional presidential powers. The provision was clearly designed to avoid opportunistic usurpation of power pending the parliamentary mandate to elect the president.
Another attorney, Osegô Garebamono posits as follows;
“What automatic succession tried to avoid was a situation such as that. So immediately upon the death, resignation or cessation of holding office of the President, the VP takes over. He has all the powers of the President save the power to revoke the appointment of a VP and the power to dissolve Parliament. Then process of appointing a new President moves to Parliament within 7 days.”
In light of all these provisions, it would be absurd to say that the Constitution envisaged a fully substantive President who has neither the blessing of the citizenry nor that of their representatives.
The Chief Justice and the Attorney General should have picked this, but that’s not my gripe. Let us fix this anomaly before it is too late.