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Molale is not legally compelled to resign

Ndulamo Anthony Morima
EAGLE WATCH

When Specially Elected Member of the National Assembly and Minister for Presidential Affairs and Public Administration, Honorable Eric Molale, indicated that he will be contesting the Goodhope/Mabule constituency bye elections, many thought that he will resign as Specially Elected Member of the National Assembly and as Minister, but he has not.


Meanwhile, Molale is expected to contest the Botswana Democratic Party (BDP) primary elections this weekend. If he wins the primary elections the BDP will submit his name for the nominations of candidates for the Goodhope/Mabule constituency bye elections to be held on 24th July 2015. This will pave the way for him to contest the bye elections scheduled for 15th August 2015.


The question that ought to be asked is whether or not Molale should have resigned his positions immediately he decided and executed the decision to contest the bye elections. In attempting to answer this question, our first resort has to be our grand law, the Constitution. The relevant section seems to be section 62 of the Constitution.  

Section 62(1) of the Constitution provides that no person shall be qualified to be elected as a Member of the National Assembly if he or she (a) has allegiance, obedience or adherence to a foreign power or state; (b) has been declared insolvent or adjudged or otherwise declared bankrupt; (c) has been certified to be insane or otherwise adjudged or declared to be of unsound mind; (d) is a Member of the House of Chiefs; and (e) subject to such exceptions as may be prescribed by Parliament, holds public office, or is acting in any public office by virtue of a contract of service expressed to continue for a period exceeding six months.

Section 62(1) of the Constitution also provides that no person shall be qualified to be elected as a Member of the National Assembly if he or she (f) is under sentence of death imposed by a court in any part of the Commonwealth or under a sentence of imprisonment (by whatever name called) exceeding six months; and (g) holds or acts in any office the function of which involves any responsibility for, or in connection with, the conduct of any elections of the Assembly or the compilation or revision of any electoral register for the purpose of such elections.

Clearly, subsections (a), (b), (c), (d), (f) and (g) do not apply in Molale’s case. Some have argued that subsection (e) applies, arguing that as a cabinet Minister Molale holds public office. But, can a Minister be said to hold public office? In terms of section 49 of the Interpretation Act, CAP 01:04 “public office" or "public officer" and "public service" have the same meanings as in the Constitution.”


In terms of section 127(1) of the Constitution “public office" means, subject to the provisions of subsections (2) and (3) of this section, an office of emolument in the public service”.

According to subsection (2) “in this Constitution, unless the context otherwise requires, references to offices in the public service shall be construed as including references to the offices of judges of the Court of Appeal and judges of the High Court and the offices of members of all subordinate courts (being offices the emoluments attaching to which, or any part of the emoluments attaching to which, are paid directly out of moneys provided by Parliament”.


In terms of subsection (3) “for the purposes of this Constitution a person shall not be considered to be a public officer by reason only that he or she is in receipt of any remuneration or allowance as the President, Vice-President, a Minister or Assistant Minister, Speaker, Deputy Speaker or Member of the Assembly, a Member of the Ntlo ya Dikgosi or a member of any Commission established by this Constitution.”


If section 127(1) of the Constitution raises any doubts as to whether or not a Minister holds public office and is, therefore, a public officer, subsections (2) and (3) have laid the matter to rest. Clearly, a cabinet Minister, like the President, Vice-President, Assistant Minister, Speaker, Deputy Speaker or Member of the Assembly, a Member of the Ntlo ya Dikgosi or a member of any Commission established by this Constitution is not a public officer.


In the result, section 62(1) (e) of the Constitution does not disqualify Molale from contesting the bye election. The Independent Electoral Commission (IEC)’s spokesperson, Osupile Maroba, is, therefore, right in asserting that section 62 of the Constitution bars public officers and not cabinet Ministers.

He is also right that even the Electoral Act, CAP 02:09 does not bar Molale from contesting the bye elections despite not resigning from his positions. In fact, if it or any other law did, it would be invalid to the extent it is contrary to the Constitution.


This, however, is not the end of the matter. The question is: since neither the Constitution nor the Electoral Act bars Molale from contesting what else does? There is no court judgment that I am aware of which does.

The only thing that may be a factor is morals, in particular the boni mores, i.e. the common law principle of the good morals of the community. In this regard, the question would be: is it reasonable for a person who already substantively holds a position to stand for such a position while still holding the same position?


This question raises another legal question. Is the position of Specially Elected Member of the National Assembly the same as that of Elected Member of the National Assembly? It seems clear to me that the fact that the elections for the said offices are in terms of two different provisions of the Constitution makes them different. Not only that.

The fact that in terms of section 39(1) of the Constitution, unlike an Elected Member of the National Assembly, a Specially Elected Member of the National Assembly is not eligible to be nominated for the state Vice Presidency makes the two offices different.


If it is true that the positions of Specially Elected Member of the National Assembly and Elected Member of the National Assembly are different Molale has the legal right to contest the Elected Member of the National Assembly position without resigning as Specially Elected Member of the National Assembly.

It seems absurd does n’t it? Unfortunately, it is the Constitution and our other laws which have left this lacuna and Molale cannot be blamed, at least legally, for exploiting it. We can only blame him morally since such action seems to be devoid of integrity. But, does integrity matter in politics?


The question is: is it unreasonable for Molale, as a politician, to seek to entrench himself as early as now as an Elected Member of the National Assembly in preparation for the next general elections? It seems to me reasonable because if Molale lets this opportunity go by the person who wins this bye election may, to Molale’s detriment, benefit from incumbency in the next general elections?

Is it unreasonable for Molale, as a politician, to want to put himself in a position to be nominated Vice President should the opportunity arise? Would you let such an opportunity go by if you were in Molale’s position? You probably won’t.  


But, what happens if he wins the bye elections since he will then be holding two positions whose differences are minor? The answer is simple. He will have to formally resign as Specially Elected Member of the National Assembly.

But, he cannot reasonably be expected to resign now because if he resigns and loses the bye elections the state President will be in an unenviable position to re-nominate him as Specially Elected Member of the National Assembly. Though the BDP has the Parliamentary majority to ensure Molale’s return, it would be untidy politically. Even the current Opposition cannot take such a political risk when in power.


Though I, at the beginning of this discussion about a month ago, believed that Molale is compelled to resign in terms of the boni mores test, I am today of the view that there is no legal imperative that compels him to resign perhaps because the boni mores of politics are beneath the normal boni mores test.

By contesting the bye elections while still holding his positions Molale is committing no legal wrong. It is the drafters of our Constitution who have failed our people by failing to foresee such an eventuality in order to provide for it. There is, therefore, need for a constitutional amendment to address this obvious lacuna.

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The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

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A Strong Marriage Bond Needs Two

8th December 2020

Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).

This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.

In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.

Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?

Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.

POSITIVITY
Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.

“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)

We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions.
Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”

UNDERSTANDING

Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.

Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be.  You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”

COMMITMENT

Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.

When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.

ACCEPTANCE

Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.

However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.”
“Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)

COMPASSION, MUTUAL LOVE AND RESPECT

Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.

It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.

Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.

Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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