In terms of section 34(1) of the Constitution of Botswana “the President shall, subject to the provision of this section, hold office for an aggregate period not exceeding ten years beginning from the date of his first assumption of Office of President after the commencement of this Act.”
In terms of 34(1), President Lieutenant General Seretse Khama Ian Khama, who though he succeeded Festus Mogae on 1st April 2008, started his full term of office after the October 2009 general elections, will have his ten year tenure elapse in 2019. He will, therefore, be compelled to leave office.
Recently, there have been media reports that unlike his predecessor, Festus Mogae, who followed the constitution and left office when his ten year tenure lapsed, President Khama intends to orchestrate a constitutional amendment in terms of section 89 of the Constitution so that he serves a third term. Considering Botswana’s respect for the rule of law, these are serious allegations that deserve comment.
Admittedly, when in August 2008 the then Assistant Minister in the Ministry of Presidential Affairs and Public Administration, Oliphant Mfa, made calls for President Khama to seek a third term I suspected that he was stating the intentions that President Khama actually harbored. I thought President Khama was using Mfa as a proxy to test the waters. To me, it was not possible that a Minister in President Khama’s office can make such serious remarks without first consulting the President.
Today, my view has changed and I am inclined to believe that President Khama is unlikely to seek a third term. This change of view is motivated by several developments which include his respect for the rule of law and the official response that Office of the President has made regarding the third term allegations.
Recently, several high profile cases have served before the courts which tested President Khama’s respect for the rule of law. These include the Francis town West bye election case; the Essential Services case and the Parliamentary Standing Orders case, all of which government lost, but abided by the decision of the courts.
The Francis town West bye election case, for example, was so significant that as a result of the court’s ruling against the Botswana Democratic Party (BDP) and its candidate, Ignatius Moswaane, the BDP did not contest the elections because the courts held that the BDP failed to make a proper nomination of its candidate to the Independent Electoral Commission (IEC) and that the IEC acted lawfully in refusing to accept his nomination.
The Parliamentary Standing Orders case was even more significant because it had the potential to put President Khama’s succession plan into disarray because of the possibility that some BDP Members of Parliament (MPs), would, under the cover of voting by secret ballot, vote against President Khama’s nominations for His Honour the Vice President and the Speaker of the National Assembly.
Yet, President Khama demonstrated his respect for the rule of law and constitutional democracy by abiding by the courts’ decisions. Since he and the government have the right to refer matters to the courts, the issue is not that he took the matters to the courts, but that he abided by the decision of the courts.
Those who believe President Khama may seek a third term say their fears are based on past incidents which indicate that President Khama does not respect the rule of law. They cite the incident where, following their conviction and sentence to imprisonment by the courts, President Khama pardoned the Botswana Defence Force (BDF) soldiers who killed John Kalafatis.
While the pardon justifiably raised eye brows considering the gruesome and unjustified murder of Kalafatis, a presidential pardon is permissible in terms of our law. Section 53 (a) of the Constitution provides that “the President may grant to any person convicted of any offence a pardon, either for free or on lawful conditions. In terms of section 53 (d) of the Constitution the President may also “remit the whole or part of any punishment imposed on any person for any offence or penalty or forfeiture otherwise due to the Government on account of any offence”.
Therefore, Kalafatis’ case cannot be used to prove that President Khama does not respect the rule of law and constitutional democracy. Disdainful as Kalafatis’ murderers’ pardon was, President Khama used his presidential prerogative in terms of the Constitution and to the extent the pardon has not been set aside by the courts it remains lawful and constitutional.
Others argue that the way President Khama has been trying to control the judiciary by rejecting some recommendations for judicial appointment by the Judicial Service Commission (JSC) and his recent appointment of a tribunal in terms of section 97(3) of the Constitution to investigate some judges for possible removal, shows that he wants to bring the judiciary to his side so that when he seeks a third term efforts to challenge it at the courts would fail.
The issue of whether or not the President can lawfully decline the recommendation of the JSC is presently before the courts following the President’s declination to appoint attorney Omphemetse Motumise. Therefore, until the courts pronounce on it, no one can say for certain that President Khama’s view, supported by the JSC, that he has the discretion to decline the JSC’s recommendation is wrong or right.
Similarly, no one can say for certain that Motumise and the Law Society of Botswana’s view that President Khama is compelled to endorse the JSC’s recommendation is wrong or right. Also, to the extent that the issue of the section 97(3) tribunal is still before the courts and is yet to be adjudicated upon, it is inapposite to draw any conclusions.
With respect to the two cases aforesaid, what matters is how President Khama will react to the courts’ findings. If he abides by the courts’ decision, as he has done in the past, his record for respect for the rule of law and constitutionalism will be further enhanced. This will further prove that he is unlikely to amend the Constitution so that it allows him to serve a third term.
Based on respect for the rule of law alone, it can be safely concluded that President Khama, who has throughout his tenure demonstrated his respect for the Constitution, is unlikely to, at the end of his tenure, show disregard for the Constitution and seek a third term. Granted, there are some in the BDP who, for their own political survival, want President Khama to seek a third term, but I am not convinced that he will relent to such and abdicate his value for the constitution.
Recently, there have been media reports that the process of building the retirement home for the President Khama has commenced. If indeed President Khama has intentions to seek a third term, why would his retirement home be built now since even during the third term he would be entitled to stay at the State House?
Following the rumours that before he leaves office President Khama will appoint his brother, Honorable Tshekedi Khama, as Vice President so that he and not His Honour the Vice President Mokgweetsi Masisi succeeds him as President, President Khama has dismissed the rumours confirming that Masisi will succeed him. Can someone who intends to extend his term of office make such confirmation?
But, perhaps more assuring is the fact that recently Office of the President(OP) issued a press release confirming that President Khama has no intention to seek a third term. According to Botswana government’s official newspaper, Botswana Daily News, of 21st September 2015, the press release states that “this office (OP) wishes to state for the record that President Khama has on numerous occasions indicated that he is on his last term of office.”
The press release also states that “…the President had expressed his views about such fundamentals of democracy, especially in light of developments in this regard in the continent and elsewhere, the last such announcement being during the 35th Ordinary Session of the SADC Heads of State meetings press briefing”. Can someone who intends to extend his term of office issue such a press release?
Intelligence and Security Service Act, which is a law that establishes the Directorate of Intelligence and Security Service (DIS), provides for establishment of a Parliamentary Committee. Recently, the President announced nine names of Members of Parliament he had appointed to the Committee.
This announcement was preceded by a meeting the President held with the Speaker and the Leader of Opposition. Following the announcement of Committee MPs by the President, the opposition, through its leader, made it clear that it will not participate in the Committee unless certain conditions that would ensure effective oversight are met. The opposition acted on the non-participation threat through resignation of its three MPs from the Committee.
The Act at Section 38 provides for the establishment of the Committee to examine the expenditure, administration and policy of the Directorate. The law provides that the Parliamentary Committee shall have the same powers and privileges set out under the National Assembly (Powers and Privileges) Act.
On composition, the Committee shall consist of nine members who shall not be members of Cabinet and its quorum shall be five members. The MPs in the Committee elect a chairperson from among their number at their first meeting.
The Members of the Committee are appointed by the President after consultation with the Speaker of the National Assembly and Leader of the Opposition in the National Assembly. It is the provision of the law that the Committee, relative to its size, reflect the numerical strengths of the political parties represented in the National Assembly.
The Act provides that that a member of the Committee holds office for the duration of the Parliament in which he or she is appointed. The Committee is mandated to make an annual report on the discharge of their functions to the President and may at any time report to him or her on any matter relating to the discharge of those functions.
The Minister responsible for intelligence and security is obliged to lay before the National Assembly a copy of each annual report made by the Committee together with a statement as to whether any matter has been excluded from that copy in pursuance of the provision of the Act.
If it appears to the Minister, after consultation with the Parliamentary Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Directorate, the Minister may exclude that matter from the copy of the report as laid before the National Assembly.
So, what are the specific demands of the Opposition and why are they not participating in the Committee? What should happen as a way forward? The Opposition demanded that there be a forensic audit of the Directorate. The DIS has never been audited since it was set up in 2008, more than a decade ago.
The institution has been a law unto itself for a longtime, feared by all oversight bodies. The Auditor General, who had no security of tenure, could not audit the DIS. The Directorate’s personnel, especially at a high level, have been implicated in corruption. Some of its operatives are in courts of law defending corruption charges preferred against them. Some of the corruption cases which appeared in the media have not made it to the courts.
The DIS has been accused of non-accountability and unethical practices as well as of being a burden on the fiscus. So, the Opposition demanded, from the President, a forensic audit for the purpose of cleaning up the DIS. They demand a start from a clean slate.
The second demand by the Opposition is that the law be reviewed to ensure greater accountability of the DIS to Parliament. What are some of the issues that the opposition think should be reviewed? The contention is that the executive cannot appoint a Committee of Parliament to scrutinize an executive institution.
Already, it is argued, Parliament is less independent and it is dominated by the executive. It is contended that the Committee should be established by the Standing Orders and be appointed by a Select Committee of Parliament. There is also an argument that the Committee should report to Parliament and not to the President and that the Minister should not have any role in the Committee.
Democratic and Parliamentary oversight of the intelligence is relatively a new phenomenon across the World. Even developed democracies are still grappling with some of these issues. However, there are acceptable standards or what might be called international best practices which have evolved over the past two or so decades.
In the UK for instance, MPs of the Intelligence and Security Committee are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition. This is a good balancing exercise of involvement of both the executive and the legislature. Consultation is taken for granted in Botswana context in the sense that it has been reduced to just informing the Leader of Opposition without much regard to his or her ideas; they are never taken seriously.
Furthermore, the current Committee in the UK has four Members of the ruling party and five MPs from the opposition. It is a fairly balanced Committee in terms of Parliamentary representation. However, as said above, the President of Botswana appointed six ruling party MPs and three from the opposition.
The imbalance is preposterous and more pronounced with clear intentions of getting the executive way through the ruling party representatives in the Committee. The intention to avoid scrutiny is clear from the numbers of the ruling party MPs in the Committee.
There is also an international standard of removing sensitive parts which may harm national security from the report before it is tabled in the legislature. The previous and current reluctance of the executive arms to open up on Defence and Security matters emanate from this very reason of preserving and protecting national security.
But national security should be balanced with public interest and other democratic principles. The decision to expunge certain information which may be prejudicial to national security should not be an arbitrary and exclusive decision of the executive but a collective decision of a well fairly balanced Committee in consultation with the Speaker and the minister responsible.
There is no doubt that the DIS has been a rogue institution. The reluctance by the President to commit to democratic-parliamentary oversight reforms presupposes a lack of commitment to democratization. The President has no interest in seeing a reformed DIS with effective oversight of the agency.
He is insincere. This is because the President loathes the idea losing an iota of power and sharing it with any other democratic institution. He sees the agency as his power lever to sustain his stay in the high office. He thought he could sanitize himself with an ineffective DIS Committee that would dance to his tune.
The non-participation of the opposition MPs renders the Committee dysfunctional; it cannot function as this would be unlawful. Participation of the opposition is a legal requirement. Even if it can meet, it would lack legitimacy; it cannot be taken seriously. The President should therefore act on the oversight demands and reform the DIS if he is to be taken seriously.
For years I have trained people about paradigm shifts – those light-bulb-switch-on moments – where there is a seismic change from the usual way of thinking about something to a newer, better way.
I like to refer to them as ‘aha’ moments because of the sudden understanding of something which was previously incomprehensible. However, the topic of today’s article is the complete antithesis of ‘aha’. Though I’d love to tell you I’d had a ‘eureka ‘, ‘problem solved’ moment, I am faced with the complete opposite – an ‘oh-no’ moment or Lost Leader Syndrome.
No matter how well prepared or capable a leader is. they often find themselves facing perplexing events, confounding information, or puzzling situations. Confused by developments of which they can’t make sense and by challenges that they don’t know how to solve they become confused, sometimes lost and completely clueless about what to do.
I am told by Jentz and Murphy (JM) in ‘What leaders do when they don’t know what to do’ that this is normal, and that rapid change is making confusion a defining feature of management in the 21st century. Now doesn’t that sound like the story of 2020 summed up in a single sentence?
The basic premise of their writing is that “confusion is not a weakness to be ashamed of but a regular and inevitable condition of leadership. By learning to embrace their confusion, managers are able to set in motion a constructive process for addressing baffling issues.
In fact, confusion turns out to be a fruitful environment in which the best managers thrive by using the instability around them to open up better lines of communication, test their old assumptions and values against changing realities, and develop more creative approaches to problem solving.”
The problem with this ideology however is that it doesn’t help my overwhelming feelings of fear and panic which is exacerbated by a tape playing on a loop in my head saying ‘you’re supposed to know what to do, do something’. My angst is compounded by annoying motivational phrases also unhelpfully playing in my head like.
Nothing happens until something moves
The secret of getting ahead is getting started
Act or be acted upon
All these platitudes are urging me to pull something out of the bag, but I know that this is a trap. This need to forge ahead is nothing but a coping mechanism and disguise. Instead of owning the fact that I haven’t got a foggy about what to do, part of me worries that I’ll lose authority if I acknowledge that I can’t provide direction – I’m supposed to know the answers, I’m the MD! This feeling of not being in control is common for managers in ‘oh no’ situations and as a result they often start reflexively and unilaterally attempting to impose quick fixes to restore equilibrium because, lets be honest, sometimes we find it hard to resist hiding our confusion.
To admit that I am lost in an “Oh, No!” moment opens the door not only to the fear of losing authority but also to a plethora of other troubling emotions and thoughts: *Shame and loss of face: “You’ll look like a fool!” * Panic and loss of control: “You’ve let this get out of hand!” * Incompetence and incapacitation: “You don’t know what you’re doing!”
As if by saying “I’m at a loss here” is tantamount to declaring “I am not fit to lead.” Of course the real problem for me and any other leader is if they don’t admit when they are disoriented, it sends a signal to others in the organisation stating it’s not cool to be lost and that, by its very nature encourages them to hide. What’s the saying about ‘a real man never asks for direction. ..so they end up driving around in circles’.
As managers we need to embrace the confusion, show vulnerability (remember that’s not a bad word) and accept that leadership is not about pretending to have all the answers but about having the courage to search with others to discover a solution.
JM point out that “being confused, however, does not mean being incapacitated. Indeed, one of the most liberating truths of leadership is that confusion is not quicksand from which to escape but rather the potter’s clay of leadership – the very stuff with which managers can work.”
2020 has certainly been a year to remember and all indications are that the confusion which has characterised this year will still follow us into the New Year, thereby making confusion a defining characteristic of the new normal and how managers need to manage. Our competence as leaders will then surely be measured not only by ‘what I know’ but increasingly by ‘how I behave when I accept, I don’t know, lose my sense of direction and become confused.
.I guess the message for all organizational cultures going forward is that sticking with the belief that we need all-knowing, omni-competent executives will cost them dearly and send a message to managers that it is better to hide their confusion than to address it openly and constructively.
Take comfort in these wise words ‘Confusion is a word we have invented for an order not yet understood’!