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.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.