BMD must sort out its constitutional mess
Owen Nsala | Wednesday May 24, 2017 16:16
The recent events within the once glorified movement have brought shame and to a larger extent discredit upon the movement.
At the time the BMD was conceived those who sat at its maternity bed had experienced how sweeping powers by a president can be detrimental to a movement.
At the time of its conception Gomolemo Motswaledi had been suspended from the Botswana Democratic Party (BDP) by President Ian Khama and he failed in challenging his suspension in court. The BDP constitution gave sweeping and semi-dictatorial powers to its president.
The founders of the BMD had experienced how dangerous it was to award power to one office to the exclusion of other offices or bodies within an organisation and when they penned their constitution, the drafters sought to frame a liberal constitution to avoid a repeat of the Gomolemo Motswaledi suspension or similar scenario.
That act is coming back to haunt the movement as now everyone seems to wield power.
There exists two parallel forces and factional axis all finding feet on the interpretation of the constitution.
It all began with the party’s youth league elections which we are informed were indefinitely postponed by the National Working Committee (NWC) after representation before the NWC.
A day after, there was a turn around on the decision of the NWC, which culminated in elections being held and a new youth league being voted into office.
Subsequent to that and seemingly empowered by the Constitution the NWC converged and decided to take firm action against those that defied the resolution of the NWCto indefinitely postpone the elections.
Amongst those suspended was the party president and Member of Parliament (MP), Ndaba Gaolathe together with MP, Wynter Mmolotsi. We gather from social media and the print media that those suspended regard their suspensions as mockery and therefore of no force and effect. Those that pulled the suspensions plug deem the suspensions as valid and of force and effect.
The NWC to its best knowledge has not endorsed nor ratified the Ramotswa Youth League elections. Where to from here?
Both camps seem to hold divergent interpretations of the existing constitution. Those that support the president, state that the body that took the decision to call off elections and ultimately suspend the party president and MP Mmolotsi, lack the powers to do so or are not clothed with the constitutional powers to take such drastic actions.
Those that are for the suspensions talk to the constitution as the source and well of their sweeping powers. Therein lies the standstill.
A debate has since ensued to locate the next cause of action and more particularly for those suspended as it appears the Nehemiah Modubule camp has now brought a new team altogether to run the show and affairs of the party to the exclusion of those they deem and colour as party dissidents.
There are those of the school of thought that since the NWC is devoid of any powers to sanction an indefinite postponement of the elections and the subsequent suspensions, then whatever pronouncement was made is as good as screaming in the wind.
The Modubule Mangole axis hold strongly to the constitution as their fountain of power. I have a difficulty in accepting that the suspensions and postponement of the elections is not an act that must be set aside either by an internal administrative appeals body within the party or through a visit to courts.
Any suggestion that the NWC went beyond its powers and therefore must not be given audience is a recipe for disaster and anarchy.
First things first, the NWC took a decision to postpone the elections on the belief that it s so empowered.
Members of the committee appeared before it and deliberations were done culminating in that resolution.
It was after the recall of the elections that the other camp sought legal counsel and on the strength of the legal advise sought and without reverting to the NWC or any appeals board proceeded with the elections.
My take is that whether the committee has the powers to suspend or recall is secondary.
To the extent that the party members appeared before the committee and a resolution was taken presupposes that at the relevant time, both parties were agreeable that to an extent the working committee had the powers to do as it did.
It was wrong in my view to wish away the decision of the working committee simply on the advise sought from their counsel without seeking to invalidate that decision before a competent tribunal.
I am of the view that president Gaolathe must seek audience with the courts to set aside the decisions of the committee for having been erroneously made under the apprehension that the powers so existed.
To leave things as is and proceed on the basis that the decision to call off the elections and the ultimate suspensions are of no force and effect is to create a breeding ground for anarchy and lawlessness.
The nation needs clarity on this issue and we cannot have whispers on divergence. To whom do we listen to?