Dingake recently delivered a public lecture as part of Motheo O Mosha’s efforts to raise P500, 000 for initiatives aimed at addressing issues pertaining to the constitutional review process, which they have since said was not properly done.
Commission of Inquiries Act was a wrong tool
In December 2021, President Mokgweetsi Masisi, acting in terms of the empowering provisions of the Commission of Inquiries Act, established a Constitutional Review Commission led by former Chief Justice, Maruping Dibotelo. The Commission was given nine months to undertake its work and submit a report to the President, which it did. According to Dingake, the model of revising the Constitution was to invoke the Commission of Inquiries Act, which was not the best approach having regard to international best practice. This is so because under the said Act, the Commission is appointed by the President alone and the Terms of Reference for the Commission are also the sole prerogative of the President. “The Commission was accountable to the President alone. This approach was adopted by Zambia, in the past, and it caused a lot of unhappiness and frustrations amongst civil society formations, as it did in Botswana. The approach that Botswana chose is at variance with international best practice as it excludes other key stakeholders, such as civil society and all political parties that must be meaningfully involved from beginning to the end. “Botswana had many options on how to review a Constitution ranking from the best to the worst models and it chose to lower the bar and adopt an exclusionary model. In choosing this model, the government betrayed the aspirations of the people who wished to see the most progressive home-grown Constitution to govern their lives. And whilst this is plainly a dream deferred, it is also, by all accounts, a dream deferred. I am, however, certain of one thing: the current generation, led by Motheo O Mosha and other allied progressive formations, shall one day correct this historic injustice on our people. This much is certain to happen, one day,” he said.
Why Constitution?
According to Dingake, there are five broad reasons why constitutions are important and he mentioned them as follows: Firstly, constitutions provide for the foundation of almost every nation’s legal system. A Constitution is a statement of values and is an embodiment of a contract between the governments and the people of any nation. Secondly, in many legal systems, constitutions are superior to all other laws, making them critical tools for overturning discriminatory legislation. For instance, in India, in 2017, the Supreme Court ruled that the traditional practice of “instant divorce” in Islamic marriages, which allowed men to legally divorce their wives by saying the Arabic word for divorce three times, violated the Constitution’s protection for gender equality. Thirdly, modern constitutions refer to or acknowledge the binding nature of certain international human rights instruments. This enhances the protection the Constitution offers to people. Fourthly, constitutions can protect people from policies that undermine equal rights. Fifthly, constitutions are important in shaping public policy and programmes; and Finally, constitutions are an important tool for civil engagement, education, and activism. In India, activists undertook 115 days march to establish a constitutional right to education. In Kenya civil society groups published copies of constitutions in Braille. In Germany, newly arriving refugees receive copies of a Bill of Rights in Arabic. With all the above in mind, Dingake said it is important to say that a Constitution is not a panacea for all societal ills. “It is a promissory note. It requires judges who can transform these promises into tangible deliverables when called upon to do so. That explains why it is important to ensure, when reviewing a Constitution, that the provisions around judicial functions are strengthened and placed beyond the reach of politicians. These provisions must guarantee independence and impartiality, the key attributes of a credible judiciary,” he said.
Transformative Constitution
According to Dingake, under a transformative Constitution, the State cannot be a bystander in shaping a society in which individuals can fully enjoy their rights. A transformative Constitution obliges the courts to interpret the constitution with reference to specific social and economic contexts prevalent in the country as a whole. “In the context of Botswana, a transformative Constitution would have to deal squarely with the distribution of power and break the over concentration of power in one authority. It must also address unequal and insufficient access to necessities of life, housing, food, water, and health. This is so because if these inequalities exist, the quest for substantive equality would always ring hollow. A transformative Constitution aims to reduce, and ultimately eliminate, the disparities in wealth and power. The quest for economic justice for every person must go hand in hand with a legal system that can hold all those who wield power, whether public or private accountable. The legal system must ensure that every exercise of public power is justifiable,” he said. The former Botswana High Court judge said Botswana is overdue for a transformative Constitution that among other things can honour the republican nature of the state that was created in 1966 by, amongst other things, achieving the following: Dismantling the imperial presidency; giving more power to the people, including the power to initiate a constitutional amendment; enhancing democracy; altering power relationships in favour of the people elected representatives and the people directly; broadening the Bill of Rights to include clear enforcement of socio-economic and cultural rights; the broadening of rights should include the right of every person to an environment that is not harmful to their health and well being, the right to access to information held by the State, must recognise specific rights of children; “We must specify the right to dignity and provide that the Bill of Rights applies and binds all persons, natural and juristic and binds all persons. On limitations, we must take a leaf from the Malawi Constitution and provide that: No restriction or limitations may be placed on the exercise of any rights and freedoms provided in the Constitution other than those prescribed by law, which are reasonable, recognised by international human rights standards and necessary in an open and democratic society; demonstrate a heightened commitment to social justice – in particular, decree measures to reduce the gap between the poor and the rich; and the courts must be given expansive powers to control the exercise of public power, and usher in administrative justice; including the imperative to give reasons for every governmental decision and which reasons are subject to judicial scrutiny.” Dingake said the new Constitution must constitutionalise the obligations of the State, breach of which is subject to judicial review.
“The State must respect, protect, promote, and fulfil the Bill of Rights. The obligation to respect requires the State to refrain from interfering with the enjoyment of rights. An obligation to protect requires the State to protect violations of rights. An obligation to promote requires the State to educate and inform people of their rights. An obligation to fulfil requires the State to take appropriate legislative, budgetary, judicial, and other measures toward the full realisation of rights,” he said. In conclusion, Dingake said he thinks it is not late for us as a collective, to heed the voice of those who say we took the wrong path to amend our constitution and that we did it half-heartedly. “We can still go back to the drawing board, give it another two years, involve all stakeholders, pass an enabling legislation to govern the process, conduct civic education, and utilise internal and external experts in creating a constitution of our dreams. This we owe to our people who never had the benefit of a meaningful participation in creating their Constitution. Once we get the process right, we can learn from the best in terms of content and have a Constitution that subjects the exercise of power to the law and people; including creating a pathway in the Constitution that gives the people direct authority to initiate the amendment of the Constitution if they wish,” he said. He emphasised that Botswana needs a new Constitution that can effectively hold the exercise of power whether public or private accountable to the law, a Constitution that can effectively redistribute power and resources in an egalitarian direction. “We need a transformative people-driven Constitution if we are committed to the rule of law and not the rule by men and women,” he asserted.
