The Botswana Democratic Party (BDP) dominated parliament has once again rejected a motion calling for the review of the Constitution of the Republic of Botswana. There have been many unsuccessful calls from various quarters calling for the same exercise.
This time the motion was tabled last week by Member of Parliament for Selibe Phikwe West, Dithapelo Keorapetse. In an interview with Weekendpost Keorapetse emphasized that a constitutional review was appropriate considering the evolving democracy that Botswana is faced with. According to Keorapetse, Botswana is one of the few African Countries with an old constitution crafted during colonial rule.
“Most countries in Africa have reviewed their template constitutions given to them by their erstwhile colonial masters. When these African countries matured, they decided to write their own constitutions with no input by outsiders, especially their former colonizers,” he said. The constitution of Botswana was drawn up in 1964 when Bechuanaland readied for independence. Ever since then there hasn’t been a holistic review of the country legal blueprint.
The 1963-1964 constitutional talks, held in Lobatse were between the then colonial masters, chiefs and representatives of few political parties existing at the time. At the time most Batswana were illiterate, let alone politically developed. “The country was very poor. There was no intelligentsia and no professional bodies such as the Law Society of Botswana and other civil society organizations. There wasn’t much consultation and even if there was, very few Batswana could understand what was required of them in terms of their contribution to the constitution.”
All these pre independence attributes, Keorapetse believes resulted in few Batswana meaningfully participating towards the development of Botswana’s constitution. He argues that today contemporary Botswana is far much better, that review for constitution is a timely call considering the existence of civil society organizations, academics, professional institutions, business interest groups, and trade unions, groups representing marginalized groups and or “minorities”, youth, women and many other stakeholders with full understanding of the subject matter.
He says compared to colonial era, today Botswana has more political parties with insightful, vibrant, intelligent politicians who are well grounded on issues of law. The Botswana Congress Party (BCP) spokesperson reiterates that there is a need to mobilize resources for a comprehensive review of the constitution. The youthful legislator told Weekendpost that it was essential to set up a constitutional review commission and call a national constitutional conference where the joint knowledge of the people can be sought regarding the development of the country’s constitution.
Globally Botswana has been showed with praises on international fora as a shining example and true epitome of democracy revered for its sustenance of liberal democratic principles since independence. Botswana has never postponed general elections and it always conducts non violent and supposedly free and fair polls. However, there are debates about the extent to which the country’s constitution enshrines democratic principles and the manner in which its strong soft autocratic state conducts the country’s affairs. Jurists have observed that Botswana’s constitutional development has been made by judges adjudicating cases in the courts. But it has been argued that judges don’t make the law as this is the responsibility of the legislature and that for this reason, “Batswana and parliament should enact a new constitution,” said Keorapetse.
The former University of Botswana Lecture shuns the ruling party‘s view that a piecemeal approach towards developing the constitution is the best method purportedly because it is cheap and that there is no urgent need for overhaul. “The exercise of constitutional review would be expensive; it is difficult to place a price tag on democratic values. We have an opportunity as a country to reclaim our rightful place in the continent and the world as a shining example of true democracy by modernizing our democracy through developing the constitution and accordingly our democratic institutions,” he says.
Critics of Botswana‘s constitution believe that Botswana has weak oversight bodies. The Opposition is of the view that watchdog institution like DCEC, Ombudsman and other are toothless and only play to the tune of government and ruling party music. “There is a need for improvement and establishment of new key democratic institutions including watchdog institutions or institutions supporting democracy such as the Human Rights Commission, Media, Ombudsman, Auditor General,” added Keorapetse. He further said it was important that Botswana constitution be aligned to international democratic standards and that Batswana, united in their diversity, meaningfully participate towards constitutional development.
Legal experts believe that the current constitution of Botswana does not include the the recognized generation of Human Rights. Another focal point and main issues of concern with the country current constitution is the powers of the president. It is believed the President is too powerful for a democratic state, currently the constitution of Botswana provide for the Presidency‘s supervisory role over all oversight institutions and he also appoints the Directors of all the Key bodies, something which critics believe raises conflict of interest and poses threat to democracy.
Furthermore Keorapetse observed that parliament and Judiciary were not autonomous “Parliament’s powers and independence should be enhanced. The judiciary must be more independent and have integrity,” he said. For many years academics, lawyers, opposition political parties, media and other pro-democratic Batswana have been bewailing the powers of the presidency. Pierre du Toit correctly observed in 1995 that one of the distinctive traits that emerged in the democratic politics in the post-independence Botswana is that at the national level, presidential politics dominated other aspects of parliamentary process.
The executive power of the republic vests in the president (Section 47(1) of the Constitution of Botswana) and he shall act in his own deliberate judgment and he is not obliged to take or follow any advice tendered to him by any person or authority (Section 47(2). Key Dingake argued, in his 1999 book-Key Aspects of the Constitutional Law of Botswana, that this effectively authorizes the president to rule single handedly and/or authorizes dictatorship and that it is difficult to comprehend the wisdom behind this provision considering that in Botswana the president is not directly elected. Dingake further cautions about section 41of the constitution in the same book that the president is effectively above the law as long as he holds office.
Keorapetse argues that the status quo in which parliament has no authority whatsoever to remove the president even on account of serious misconduct, serious crime or misdemeanor or breach of the constitution or any law is serious threat to democracy and justice. “The constitution does not provide for impeachment of the president but provides for motion of no confidence on the government, it must be reviewed in part to provide for impeachment of the president by parliament for felonies, misdemeanors, misconduct and breach of the law,” he said.
The Selibe Phikwe West lawmaker further states that the constitution must provide that the president can be sued for civil or criminal wrongs. “Botswana doesn’t need strongmen to lead it; it needs strong democratic institutions and liberal democratic constitution reflecting the aspirations of the people,” he said. When contributing to the debate in parliament Gaborone Boningnton North legislator and leader of opposition, Duma Boko affirmed necessity for a constitutional review saying it would enshrine all voices of Batswana, hence nourishing the country’s democracy.
Boko observed that oversight bodies which he labels toothless and just a waste of taxpayers’ money as they are captured by the executive and the President. Member of Parliament for Bobonong, Shaw Kgathi quashed the need to have a constitution review, noting that the current constitution has the interest of Batswana at heart and has served the country well since independence. Dithapelo Keorapetse who is unmoved on his call for a constitution review cautions against constitutional reform spearheaded by the executive incase parliament considers his motion in future saying it may further strengthen executive power over the judicature and parliament.
”Calls for constitutional review emanate from excessive constitutional and other discretionary powers of the president vis-à-vis other democratic institutions. Constitutional reform advocates are calling for more powers and independence of parliament and the courts so that these institutions can provide effective checks and balances on the government. If the executive proposes a constitution that would entrench more dictatorship like the current document, Batswana must reject it outright,” said Keorapetse.
Presidential Commission of Inquiry into the Review of the Constitution held a meeting in Serowe this week. The meeting was to accord Bangwato, just like other tribes, a platform to give their opinions, contributions and what they think is the horse power and limitations of the current Constitution of Botswana.
Bangwato Regent, Kgosi Serogola Seretse said, he is of the understanding that the Commission has not come for anything apart from getting their opinions on how things could be made better. His contribution was that he solely knows of only two social positions in the world; Dikgosi and Pastors. He said other positions are just benedictions. He further urged that, Batswana should respect God’s ordained protocols such as Dikgosi and Pastors.
Seretse pointed out the importance of acknowledging and appreciating Dikgosi as nation builders. He cautioned and warned that, the Commission should ensure that their dealing with Dikgosi is harmonious. He called for an amendment to be made on the ‘National Order of Precedence’ noting that Dikgosi are put at number 11, but should at least be taken a little higher to number 7.
One resident, Tshepo Moloi while giving his contribution said there must be provisions of Social Justice that ensure equal distribution of resources to all citizens. He said this provision should entail an obligation that all citizen have equal opportunities to different Government Initiatives. Moloi substantiated that, all ‘Presidential Commissions’ be engraved on the Constitution
Alfred Thogolwane who is as well a resident of the biggest village in the Central District, pointed out the need for preservation of the country and resources thereof, saying “it must dawn onto all that, the calabash that fetches water for the family cannot fixed once its broken.” Another resident, Keikantsemang Sebedi advocated for Polygamous marriage, saying that men should marry as many wives as they please. She said there is no need for any socioeconomic assessment done on men who wish to marry more than one wife.
She advised that, the country should benchmark from the Zezuru culture that does it, with no complexities. On the other hand, Sebedi said that, there must be considerations done on the Old Age Pension. She said people who earned P4000 should not receive the old Age Pension upon their fullness of age. Forshia Koloi called for amendments on Section 77 and all the provisions that speaks to the subject of Bogosi and the powers infested in them. He said they should be made more detailed and avoid ambiguity in clauses.
Mr Tlhaodi said there must be Land Audits done in the country. Citing an example of the Tati Land as one that should be thoroughly audited. He further advised that, Election Day be put on the Calendar. He said, if it happens that the day be a Saturday, there should be some special dispensation for the 7th Day Adventist Church members to take part in voting without compromising on their day of worship. Tlhaodi added that there must be People’s Complaint Commission in the country.
Speakers emphasized the need for the country to review the exercise of ‘Political Party Funding’. They articulated that lack of funding political parties’ results in political parties resorting to finding funds for themselves. They reiterated that sometimes going to the extent of getting funds through illegal means. Bangwato agreed in one accord that they want the President be tried whilst in office if suspected of any criminal offences. This was revealed in their contributions. They pointed out that, the law should not to wait until the end of their tenure.
For his part, the Deputy Chairperson of the Commission Johnson Motshwarakgole expressed gratitude to the residents of Serowe. He applauded women for their kindness saying it is only them, who always take responsibility for doing things amicably in the society.
Parliament has revealed that it plans to rollout a Community Score Card (CSC) exercise as part of sweeping reforms to its role and mandate among others.
The planed shakeup, along with the rollout of CSC will see creation of new Parliamentary Portfolio Committees on Health, HIV&AIDS, Education and Skills Development, Trade and Economic Development, Agriculture, Lands and Housing and Local Governance and Social Welfare. Parliament informed government ministries and departments that the CSC is a participatory, community based monitoring and evaluation tool that enables citizens to assess the quality of public services and interact with services providers to express their concerns.
According to Parliament, the CSC will assist to inform community members about available services and their entitlements and to solicit their opinions about the accessibility and quality of certain services related to the portfolio committees mentioned. It said the main objective is for Parliament through identified oversight committees is to conduct a participatory monitoring and evaluating process that puts ownership and responsibility for delivery of services in the hands of both the Government and the service recipients.
“Through scorecards developed around identified sectors and services, communities and implementing departments remain in touch with progress made through the programme delivery cycle and are able to respond timely to bottlenecks,” the National Assembly said. Some of the measurements and expected outcomes for the rolling out of the CSC include among others, improved monitoring and economic evaluation, to determine the impact of spending, so as to be able to direct resources from where they having the least benefit to those projects and programmes where they will have a larger positive impact.
The National Assembly explained further that this could result in a willingness to close down ineffective programmes and institutions and not to implement projects that do not deliver adequate returns, improved productivity in the public services, especially given the substantial pay increases.
The National Assembly believes that the rolling out of CSC is also expected to result in efficiency savings: many public services and programmes could be delivered more effectively at lower costs, by improving management and accountability, and making use of e-services. “This would yield financial savings that could be used for development programmes or reducing the deficit,” the National Assembly said.
The exercise is also expected to result in “Careful scrutiny of subsidy schemes and termination of those that do not address market failure or assist truly needy Batswana.” The National Assembly revealed that proposed Parliamentary Portfolio Committee on Health and Wellness has been established in accordance with the Standing of National Assembly of Botswana. It explained that the mandate of the Committee is mainly to exercise Parliamentary oversight and scrutiny over Government Ministries, Departments and Agencies with portfolio responsibilities in respect of Health and HIV/AIDS.
“There is need to identify reasons for inefficiency and poor outcomes and ensure that health system reform improve productivity and value for money. Key areas of focus for scorecard, availability of drugs, staffing ratios, accessibility of health services, speciality care and services and sexual reproductively health,” the National Assembly said.
Another proposed Committee is on Local Governance and Social Welfare. The mandate of the Committee is mainly to exercise Parliamentary Oversight and Scrutiny over Government Ministries. Departments and Agencies with Portfolio responsibilities in respect of Local Governance and Social Welfare.
“Strategies under NDP 11 to improve outcomes of social uplifment include; diversiﬁcation of rural economies, development and support of small businesses, provision of social safety nets, eradication of absolute poverty, provision of quality and equitable education and harmonisation of social protection programmes,” said the National Assembly. It said social nets need to be improved so as to target these most in need (at present some social safety nets benefit many people who are not the most needy, but also miss out some of those who are needy).
“Some social development policies more broadly should also aim to reduce household vulnerability to shocks such as those arising from fluctuations in agriculture, climate change, incomes and employment and improve their ability to handle shocks, thereby building household resilience,” the National Assembly said.
Another Committee established is on Agriculture, Lands and Housing. The mandate of the Committee is mainly to exercise Parliamentary oversight and scrutiny over Government Institutions, Departments and Agencies with portfolio responsibilities in respect of Agriculture, Lands and Housing.
The National Assembly said the average growth rate of the agricultural sector since the beginning of National Development Plan 11 (NDP11) (i.e. during the 2017/2018 and 2018/19 financial years) was 2.5 percent, making it the slowest growing sector of the economy, in line with its historical performance.
“Over the same period, its share of GDP has been stagnant at around 2 percent. The sector also contributes job opportunities for about 80 000 adults. Food security has become paramount since the onset of the corona virus pandemic,” the National Assembly said. The National Assembly said the Government realises the need to increase food production for products in which Botswana has a cooperative advantage such as beef, grains and other horticulture products.
The Committee on Finance, Trade and Economic Development has also been established. One of the mandates of Committee would be to exercise Parliamentary oversight and scrutiny over government ministries, departments and agencies with portfolio responsibilities in respect of Finance, Development, Trade and Industry.
“The sector is at the core of industrialisation aspirations and strategies for economic development in Botswana. Manufacturing in particular can be the driver of economic growth through technological improvements and innovation,” the National Assembly said. Hence, it said, the development of the sector could also foster export diversification and export led-growth in Botswana while benefitting from the African Continental Free Trade Area (AFCFTA).
Two senior members of Directorate on Corruption and Economic Crime (DCEC) have threatened legal action against Directorate of Intelligence and Security (DIS), it has transpired. The threat is contained in an answering affidavit of Director General of DCEC, Tymon Katlholo in which he is seeking an interdiction from High Court to stop the DIS from accessing investigation files at his office.
After the DIS detained DCEC officials Joao Salbany and Tsholofelo Bareetsi on December 16, 2021, they filed an official complaint against DIS and some officials. They complained about abuse of office by DIS and five officers. Salbany and Bareetsi also complained about unlawful detention by DIS and unlawful dissemination of classified information contrary to Section 44 of Corruption and Economic Crime Act. “The DIS interviews were premised on information divulged during the course of official DCEC work product, that is the Monday media brief meeting,” they wrote.
They further requested leave to institute a civil suit against the DIS and its officers, and invariably the State for inhuman and degrading treatment they suffered and unlawful detention. They also pondered a declaratory seeking a sanction against the DIS and Botswana Police Service (BPS) and clarification of the role of BPS officers seconded to DIS.
“The envisaged suit against BPS and DIS officers and the DIS will inevitably centre on investigations done by the DCEC and the scope of the protection availed to DCEC officers for conduct done in the course and scope of DCEC official duties.” The duo said it was self-evident from the conduct of the DIS officers that there was nothing urgent about the information required by the DIS, justifying their detention at its Sebele facility from 08:30 hours on December 16, 2021 until 02:00 hours on December 17, 2021.
They reasoned that the information required by the DIS could have been obtained by a simple request to DCEC Director General. “What the DIS did was to seek to intimidate officers of the DCEC whom they knew were carrying out investigations against some of the DIS officers who were part of their investigation team. This turn of events has a chilling effect not only on the functioning of the DCEC but also on the official conduct of officers of the DCEC as to how they conduct their official duties.”
They concluded by stating that in the event the request is granted, they would further request to be advised as to the provision of legal representation as the unalwful detention and the degrading and inhuman treatment by the DIS was in relation to matters conducted by and on behalf of the DCEC.