This treatise acknowledges that any President should be given enough powers to rule and avoid a state of anarchy but no one including the President should be a law onto himself. Law is not merely nor necessarily an instrument of control but a means to achieving Justice.
Those given power and authority to rule should not be concerned with control but primarily be concerned with accountability.
The principle of separation of powers needs to be intact in order to bring checks and balances, more especially in ensuring that the executive does not override or render other branches marginalised, subjugated and virtually non-existent.
The unfortunate reality is that the President of the Republic of Botswana wields extensive executive powers enough for a man to assume the status of God.
However, this contribution precisely confines and evokes the debate to two most fatal risks: 1) The President being not obliged to listen to any advice and 2) The President not being directly elected by the people.
According to Section 47(2) of the Botswana constitution, ‘the President may act in his own deliberate manner and is not obliged to listen to any advice tendered to him by any person or authority.
Furthermore, the President is not directly elected by the people.
By the President being not obliged, I therefore deduce that his decisions may easily be deemed dictatorial but not necessarily unlawful.
Though it does not defy logic to deem the President dictatorial while all his decisions are within the confines of the law as allowed by an abstract or loose constitution, it is equally unfair, hypocritical and self-defeating for us to expect any kind of accountability from the President of the Republic of Botswana in whom we have conferred and entrusted all the powers upon, thus, inevitably rendering the social contract null and void.
He is not even accountable to Botswana’s choreographed, marginalised and theatrical parliament. Therefore, anticipation of public scrutiny in the present state is nothing but a hollow hullabaloo. Such an anticipation falls short of both liberal and popular legitimacy.
The bigger question is, ‘how can the President be subjected to public scrutiny if he is both not obliged and not directly elected by the people? The choice is simple: change the Constitution or forever be subjected to utter dictatorship from an autocrat.
This however should be noted that the issue of the Constitution that warrants no public scrutiny is not a one-man quagmire but rather a people’s quagmire. The Constitution remains a relic of the colonial era which has lost meaning or overtaken by events and processes in the context of globalisation and the post-cold war era.
Many argue that though the country has used the same Constitution since Independence including Section 47(2), Presidents who came before Ian Khama did not abuse such a loophole. Who did? Anyway, that is not the issue for now.
However, the constitutional mess
From the first President to date (Mokgweetsi Masisi), no President has ever complained against such arbitrary power and authority while in power.
Therefore, Botswana has always had a more feared Presidency and all the Presidents have condoned tyranny as the best form of government. By far, President Masisi enjoys such arbitrary powers comfortably without complaining.
The French Utilitarian, Helvetius asserts that, “Good laws are the only means of making men virtuous. The whole art of legislation consists in forcing men,by the sentiment of self-love, to be always just to others. To make such laws it is necessary to know the human heart, and first of all to know that men, though concerned about themselves and indifferent to others, are born neither good nor bad but are capable of being the one or the other according as a common interest unites or divides them…”.
When the head of executive, government and State executive wields not only extensive but arbitrary power, it corrupts him absolutely.
This manifests itself not only in the way he makes decisions but the way those who are supposed to advise appease and decorate him with either praises or calculated silence. How can millions entrust the governance of a country to one man?
This is a sheer or mere misrepresentation of democracy and the rule of law. British jurist Albert Venn Dicey, who popularised the rule of law concept in the 19th century warns of such ‘arbitrariness, government decree and wide discretionary powers/authority’.
Given the President who is not obliged, Parliament in Botswana is consequently marginalised and devoid of policy and legislation.
It is a pity that Parliament is subjugated by the President who is both not directly elected by the people and not obliged to listen to any advice including that of Parliament. Such a practice is foreign to the principles of Justice, democracy and good governance.
In view of the fact that there is no freedom of information law, any effort to scrutinise a highly feared President/Presidency proves futile.
It is simple to conclude that it is a deliberate effort to shut people’s thoughts unless one is prepared to be witch-hunted or held in contempt of a draconian decree.
As things stand, one can rationally or logically argue that the President and the Presidency in Botswana lacks both legitimate political authority and obligation or the duty to account.
Therefore, there is no argument that in such a situation (without obligation and legitimate political authority), public scrutiny equates to fantasy.