Once again the 10 year cyclical debate over "Automatic Succession" has arisen. This time triggered by my friend Tshiamo Rantao.
I think from the onset it should be said that this is not a political debate, it is purely about the interpretation of the Constitution. It is my personal opinion and supported by my views on constitutional interpretation. I have no doubt some will disagree, I trust those that hold a different view will express such views in a civil manner.
The starting point is of course Section 35 of the Constitution and what it means. In seeking to interpret the Constitution one must first look at the ordinary meaning of the words and the extent of the rights or limitations of rights that the provision seeks to achieve (I am unable to go into a full explanation of Constitutional interpretation, so I will just set out the basic principles). Effectively then, what does the provision say and what does it seek to achieve, or as Kirby recently held, "what is the harm" that the provision seeks to prevent?
Section 35 (1) creates what has been commonly called "Automatic Succession". It provides that the Vice President shall automatically assume the Office of the President immediately the sitting President ceases to hold office. What is to be kept in mind is that two people cannot hold the office of the president simultaneously. it follows therefore, in law and in fact that the incumbent must vacate the office before the Vice can assume the office. The office will be vacant, so it needs to be filled. So far there is no difficulty. The succession is automatic.
But section 35 (1) cannot in law be taken on its own. It needs to be read in conjunction, not only with the subsequent subsections under 35 but subsequent sections of the Constitution. It is here that things take on an more interesting angle.
Section 35 (3) provides in mandatory terms, that anyone who assumes the Office of the President under Section 35 (1) or (2) shall have limited authority. Section 35 (2) is irrelevant for the purposes of this debate and does not need to be considered. The reference however, to Section 35 (1) is clear and unambiguous. The ordinary meaning of the section does not allow room for argument. As such Section 35 (3) must be given its stated meaning (not the intended meaning, I will revert to this later). The "harm" that the provision addresses is to prevent a situation where the presidency is left vacant. As such, on assuming Office under Section 35 (1) the new President does so with limited authority due to 35 (3). He cannot revoke an appointment of Vice President or dissolve parliament for example. The appointment of the Vice President is of course done by way of an election in parliament by secret ballot (the "Lehansa" case).
So far therefore we have a President assuming office by automatic succession [35(1)] with limited authority [35(3)]. The Constitution recognizes that this situation cannot be left to prevail, ostensible because it is inherently undemocratic, so it creates a further requirement. Under Section 34 (4) parliament must convene and elect the president within 7 days or less. It is important to note that the section says "If the office of President becomes vacant." Again this must be given its ordinary meaning within the context of the provision. "Vacant" means "vacant" in terms of Section 35 (1) as read with Section 35 (3).
Section 35 (5) now comes into effect. Again it is important to note that this subsection says that there is to be an election of a President under this "section" i.e. 35 as a whole and not a subsection e.g. under 35 (2). Section 35 (5) provides the manner in which the election is to occur. Any member of parliament who is supported by at least 10 members can stand for election. The election is by secret ballot and to secure the Presidency the candidate must obtain "more than one half of the total number of persons entitled to vote."
Where then may the confusion arise as to the need to hold elections? No where, is the simple answer until one starts applying rules of interpretation that are not applicable.
However, even if one is to argue that the language is not clear, a submission I would not agree with for the reasons shown above, and invoke other rules of interpretation would the result be any different?
To my mind this is where the "confusion" is being created. Prior to the 1997 amendment section 35 (1) read as follows (it has been difficult to obtain this):
"35(1) If the office of President is vacant, the Vice President shall, subject to the provisions of this section, perform the functions of the office of President until such time as a new President assumes office in accordance with this section or section 32 of this Constitution."
Section 32 does not apply, as that form of assumption of office follows general elections. It is therefore important to compare the current section with the previous version above:
"35 (1) Whenever the President dies, resigns or ceases to hold office, the Vice-President shall assume office as President with effect from the date of the death, resignation or ceasing to be President."
The language "assume office as president" is in stark contrast to "functions of the office of the president," so too is the dispensation of the limitation "until such time," found in the original text.
In 2008 the Attorney General Dr. Molokomme argued that the two phrases referred to in the previous paragraph meant that there was no need to hold elections for the President under section 35 (4) as read with 35 (5). According the AG, the "intention" was to do away with the Vice President assuming limited authority.
This "error" argument, is without merit however. The fact remains that subsection 3 retains reference to subsection 1. That cannot change, nor does its inclusion render the section meaningless.
Whether the intention was there to remove reference to subsection 1 under subsection 3 is inconsequential. As the reference remains, it must be applied as it is couched in mandatory terms. To remove reference of subsection 1 (under subsection 3), would require invoking Section 89 of the Constitution now. Section 89 provides that any amendment to certain constitutional provisions (including section 35) must go for referendum. Since this has not been done the reference to subsection 1 stands and cannot be ignored.
There are other fundamental discrepancies in Molokomme's argument. For example, section 127 (5) provides that any person who holds "an office" temporarily or otherwise, shall do so with the full authority of that office, except for the president (inter alia) under section 35. Section 127 recognizes the limitations of a President that has assumed office under section 35 (1).
Under rules of constitutional interpretation the later provision prevails over the earlier provision. Consequently the recognition by Section 127 (5) of the limitations on the authority of the President appointed under section 35 must prevail to give the section effective meaning.
The current Attorney General, Abraham Keetshabe in an interview with the Botswana Guardian this week, gave an entirely different explanation to that of his predecessor. According to Keetshabe, there is never a vacancy as the Vice President stepped in automatically when President Khama ceased to hold office at midnight of 31st March. With due respect to the current AG this argument is without any validity.
The current AG, undoubtedly appreciates the difficulty admitted to by his predecessor, that due to the reference of subsection 1 under subsection 3 of section 35 the question of vacancy arises. The current AG seeks to argue that since there is no "vacancy" then the subsections can not be invoked. The fallacy of this argument lies in section 32 which imposed a 10 year limitation on the presidential term. The office of the President becomes immediately "vacant" on completion of the term. It is only because of the "vacancy" that section 35 (1) is invoked and the Vice President can assume the Office of the President.
This raises another grave error in Rre Keetshabe's argument. According to the Botswana Guardian, the AG is quoted as saying that there is no "gap in the constitution" arising from the time of assuming the office and taking the Oath of Office (being sworn in) because "The oath is just showing you have accepted to take over and will serve the nation accordingly for and on behalf" (I will give the AG some latitude as i accept he was seeking to make his point easily understood for the general public). This argument is as flawed, in my view, as his previous one. Clearly the AG is seeking to circumvent the difficulty of "vacancy". Section 37 of the Constitution (once again a later section than section 35) is emphatic and clearly illustrates the "vacancy" in the Office. It provides that "37. Oath of President- A person assuming the office of President shall, before entering upon the duties of that office, take and subscribe such oaths as may be prescribed by Parliament." The Vice President assumes the office but does not commence the duties of the office until he has taken the prescribed Oath. This must be so because of the vacancy that exists, there is a void that can be physically filled but requires the Oath to give it effect and life.
The requirement of taking the Oath and the limitations it imposes on assuming the office equally address the difference in language between the existing 35 (1) and the old provision. Section 37 prohibits a person automatically taking on the functions and duties of the President as implied by both Mma Molokomme and Rre Keetshabe but allows for the Vice President to "take office" (albeit with limited capacity).
Botswana has a long history of democratic governance. Elections, in whatever form they may take, be they in parliament or on a national scale, are an integral part of that ethos. It would be difficult to imagine a situation where an interpretation of the Constitution would whittle away a democratic process when a more democratic interpretation is available.
In my view, there is automatic succession but it is limited in scope. To address this Parliament needs to convene and hold elections before midnight tonight. The mandatory Oath that was already taken merely allowed President Masisi fulfill the limited functions he has under the Constitution. For him to enjoy full Executive functions there ought to be an election in parliament in accordance with section 35 (5). Failing which parliament will automatically stand dissolved and national elections will need to be held.
These, as I said at the start, are my views. I am sure better legal minds have more to add and may differ. I wish I had the platform to develop the arguments to their full extent but Facebook is not such a forum. I have tried to keep this as devoid as possible of legalese (my apologies if I failed).
*JOAO SALBANY obtained his LLB from the University of Botswana in 1998. He practiced in Botswana for 17 years. He is currently a masters candidate in constitutional philosophy and human rights.