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The implications of s.35 (3) of the Constitution on automatic presidential succession and retention

Ndulamo Anthony Morima
EAGLE WATCH

When the debate around automatic presidential succession started some, including attorneys Dick Bayford and Lediretse Molake, argued that automatic presidential succession as currently practiced in Botswana is unconstitutional.

In my view, this argument cannot be sustained because automatic presidential succession is provided for in terms of section 35(1) of the Constitution which reads: “whenever the President dies, resigns or ceases to hold office, the Vice President shall assume office as President with effect from the date of the death, resignation or ceasing to be President.”

As argued earlier, when a president ceases to hold office in terms of section 35(1) no vacancy exists since the Vice President succeeds him by operation of section 35(1) and such succession is automatic, instant and simultaneous. I, therefore, disagree with Advocate Sidney Pilane’s assertion in Sunday Standard of 6th April 2008 that … “it is clear that the succeeding Vice President assumes office upon subscribing the oath of office, but it is unclear when precisely the retiring President ceases to hold office in terms of section 35(1)”.

The outgoing President ceases to hold office immediately he dies, resigns or ceases to hold office. The section 35(1) President assumes office immediately the outgoing President dies, resigns or ceases to hold office. The subscription to the Oath of Office, in terms of section 37 of the Constitution, does not appoint the President; it allows him to enter upon the duties of that office, him having already, by operation of law, assumed the office.

Automatic presidential succession was ushered in by amending, through the Constitution (Amendment) Act No. 16 of 1997, the predecessor to section 35(1) which provided that: “If the office of President is vacant, the Vice President shall, subject to the provisions of this section, perform the functions of the office of President until such time as a new President assumes office in accordance with this section or section 32 of this Constitution.”

Therefore, when a president dies, resigns or ceases to hold office section 35(4) is not applicable since no vacancy exists. section 35(4) reads: “if the office of President becomes vacant, the National Assembly shall, unless Parliament is dissolved, and notwithstanding that it may be prorogued, meet on the seventh day after the office of President becomes vacant, or on such earlier day as may be appointed by the Speaker, and shall elect a person to the office…”

But, another debate continues, namely that though automatic presidential succession may be constitutional in terms of section 35(1), such presidency is interim because of section 35(3) of the Constitution which limits a section 35(1) President’s powers to that of a de facto Acting President. Section 35(3) provides that “any person performing the functions of the President by virtue of subsection (1) or (2) of this section shall not exercise the power of the President to revoke the appointment of Vice President or dissolve Parliament.”

The argument is that since a section 35(1) President has limited powers he can only be an interim President, especially that the powers he is proscribed from exercising are so cardinal that a President who is not vested with such powers can only be an interim one.
A question has been asked: If a President remains as a section 35(1) President who cannot dissolve Parliament, who will dissolve Parliament when the need arises, for instance at the end of a Parliament’s term in preparation for the general elections?

Another question has been asked: If a President remains as a section 35(1) President who cannot revoke the appointment of the Vice President, who will revoke the appointment of Vice President when the need arises for instance when the Vice President fails to uphold and defend the Constitution?

The argument is that it cannot have been the intention of the drafters of our Constitution to have a permanent President with limited powers, the result being that the country can be plunged into a constitutional crisis as a result of the President’s inability to exercise such powers. The question is: was it necessary to retain section 35(3) as it is after amending section 35(1) which engendered automatic succession of a President with full powers? In my view it was not. The section should have been amended to refer only to a section 35(2) interim President appointed by Cabinet.

The former Attorney General, Dr. Athalia Molokomme, in a statement published in the Botswana Daily News of 1st April 2008, conceded that because section 35(1) puts in place a substantive President, section 35(3) should have been amended by the removal of the reference to subsection (1). She also opined that not amending section 35(3) by the removal of the reference to subsection (1) is a minor drafting oversight which has no material consequence on the validity of the automatic succession constitutional provision. We will return to this point later.


According to Advocate Pilane “…there was a mistake when amending the Constitution to introduce automatic succession in that while section 35(1) was amended properly, an omission was made in not excluding the application of section 35(3) to section 35(1) (as amended)”. It is his view that whereas before the amendment of section 35(1) section 35(3) properly applied to both sections 35(1) and 35(2), the amendment necessarily excluded the application of section 35(3) to the amended section 35(1).

In his view, what ought to have been done was that, in addition to amending section 35(1), the number and word “…(1) or…” at section 35(3) should have been deleted. The resulting section 35(3) should have read:
“Any person performing the functions of the office of President by virtue of subsection (2) of this section shall not exercise the powers of the President to revoke the appointment of the Vice President or to dissolve Parliament”.

I agree with Advocate Pilane that the amended section 35(1) could not co-exist with an un-amended Section 35(3), but disagree with him that with such co-existence automatic succession would not have been achieved. I also agree with Advocate Pilane that it cannot have been, nor was it Parliament’s intention to make the amended section 35(1) subject to section 35(3).We now return to the question whether not amending section 35(3) by removing the reference to subsection (1) is a minor drafting oversight which has no material consequence on the validity of the automatic succession constitutional provision.

The question is: does section 35(1), alone, suffice to engender automatic presidential succession? Put differently, can a Vice President automatically succeed the outgoing president on the basis of section 35(1) alone without the invocation of section 35(3)? In my view, section 35(1), alone, suffices to engender automatic presidential succession without the invocation of section 35(3). It is worth noting that whereas the old section 35(1) was expressly made subject to sections 35(3), 35(4), 35(5), and 35(6), the current section 35(1) is not made subject to any of the provisions of section 35, or any other provision.

Therefore, the reference to subsection (1) at section 35(3) has no material consequence on the validity of the automatic succession constitutional provision. That notwithstanding, section 35(3) should be amended to read as Advocate Pilane suggests. But, the question is: to the extent section 35(3) is still part of the Constitution, is a section 35(1) President competent to continue in office despite the fact that he has no power to revoke the appointment of the Vice President or to dissolve Parliament?

With respect to the inability to revoke the appointment of the Vice President a further question is: can one’s position be made interim by the fact that he or she is incapable of performing a prospective, yet non-obligatory function? There is a view that this cannot be a ground for declaring one an interim office bearer because the President is not obliged to revoke the appointment of the Vice President. He can, therefore, serve his entire term without exercising such power without offending the Constitution, it is argued.

But what about a situation where the Vice President becomes so incapable of upholding and defending the Constitution that if the President fails to revoke his appointment he will himself be failing to uphold and defend the Constitution thereby violating his Oath of Office?
Resort can be had to section 39(2) of the Constitution. It provides that “…the Vice President shall continue in office until a person elected at the next election of President under section 32 or 35 of this Constitution assumes office provided that the office of Vice President shall become vacant- (i) if the appointment of the holder of the office is revoked by the President; or (ii) if the holder of the office ceases to be a Member of the National Assembly for any other reason than dissolution of Parliament.

A section 35(1) President can, therefore, if it becomes compelling that the Vice President be removed from office, use section 39(2)(ii) and cause, through political maneuver, the Vice President’s Parliamentary seat to be vacant in terms of section 68(1) (b) and (2) which will make the Vice President’s office vacant. With respect to the inability to dissolve Parliament the question is: can one’s position be made interim by the fact that he or she is incapable of performing a prospective but inevitable and obligatory function?

It is unavoidable that every President has to dissolve Parliament, especially after its term ends and in preparation for the general elections. Therefore, to the extent a section 35(1) President, by virtue of section 35(3) as it currently is, lacks the power to dissolve Parliament the continuation of his presidency can legitimately be questioned. This is especially true because unlike with the revocation of the appointment of the Vice President there is no way Parliament can be dissolved other than by the President. This makes the need for amending section 35(3) as proposed above compelling.

The final question is: what are the implications for the presidency before and/or without the amendment of section 35(3)? In my view, a court action, as has been threatened, to declare the office of President vacant is unlikely to succeed. This is because in interpreting sections 35(1) and 35(3) and any other relevant clause of the Constitution, our courts, are likely to be persuaded that in amending section 35(1) Parliament not only intended to engender automatic presidential succession, but also did not intend that the section 35(1) President be interim or temporary.

This they will do guided by section 27 of the Interpretation Act which provides that “In the construction of an enactment, an interpretation which would render the enactment ineffective shall be disregarded in favour of an interpretation which will enable it to have effect”. This they will do also guided by Section 26 of the Interpretation Act which provides that
“Every enactment shall be deemed remedial and for the public good, and shall receive such fair and liberal construction as will best attain its objects according to its true intent and spirit”.

Section 35(1)’s true intent and spirit is found in the Memorandum to the Bill (no 24 of 1996) which states, inter alia, that “…Clause 3 proposes to amend section 35 to provide for an automatic assumption of office of President by the Vice President in the event of the death or resignation of the President.” The mischiefs that Parliament sought to cure were the lack of automatic presidential succession and the temporary President espoused in the former section 35(1). This, the court is likely to give effect.

If it is held that the amendment inadvertently failed to so do, the worst that the courts can do, in deference to the doctrine of separation of powers, is to find for the applicants, but suspend the Order and give Parliament a timeframe within which it should amend the irredeemable constitutional provisions, if any.

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Appendicitis: Recognising the Signs

29th March 2022

Many a times I get clients casually walking into my room and requesting to be checked for “appendix”.  Few questions down the line, it is clear they are unaware of where the appendix is or what to expect when one does have it (appendicitis). Jokingly (or maybe not) I would tell them they would possibly not be having appendicitis and laughing as hard as they are doing. On the other hand, I would be impressed that at least they know and acknowledge that appendicitis is a serious thing that they should be worried about.

So, what is Appendicitis?

Appendicitis is an inflammation of the appendix; a thin, finger-like pouch attached to the large intestine on the lower right side of the abdomen. Often the inflammation can be as a result of blockage either by the faecal matter, a foreign body, infection, trauma or a tumour. Appendicitis is generally acute, with symptoms coming on over the course of a day and becoming severe rapidly. Chronic appendicitis can also occur, though rarely. In chronic cases, symptoms are less severe and can last for days, weeks, or even months. 

Acute appendicitis is a medical emergency that almost always ends up in the operating theatre. Though the appendix is locally referred to as “lela la sukiri”, no one knows its exact role and it definitely does not have anything to do with sugar metabolism. Appendicitis can strike at any age, but it is mostly common from the teen years to the 30s.

Signs to look out for

If you have any of the following symptoms, go and see a Doctor immediately! Timely diagnosis and treatment are vital in acute appendicitis;

Sudden pain that starts around the navel and shifts to the lower right abdomen within hours

The pain becomes constant and increases in severity (or comes back despite painkillers)

The pain worsens on coughing, sneezing, laughing, walking or deep breaths

Loss of appetite

Nausea and vomiting

Fever

Constipation or diarrhoea

Abdominal bloating/fullness

Diagnosis

The doctor often asks questions regarding the symptoms and the patient’s medical history. This will be followed up by a physical examination in which the Doctor presses on the abdomen to check for any tenderness, and the location of the pain. With acute appendicitis, pressing on and letting go of the right lower abdomen usually elicits an excruciatingly unbearable pain. Several tests may be ordered to determine especially the severity of the illness and to rule out other causes of abdominal pain. The tests may conditions include: blood tests, a pregnancy test, urinalysis, abdominal  “How do ultrasound scans work?” ultrasound (scan), CT scan or MRI Scan.

Treatment

The gold standard treatment of acute appendicitis is surgical removal of the appendix known as appendectomy. Luckily, a person can live just fine without an appendix! Surgical options include laparoscopy or open surgery and the type will be decided on by the Surgeon after assessing the patient’s condition. Painkillers and antibiotics are also given intravenously usually before, during and after the surgery.

Complications

Appendicitis can cause serious complications such as;

Appendicular mass/abscessIf the appendix is inflamed or bursts, one may develop a pocket of pus around it known as an abscess. In most cases, the abscess will be treated with antibiotics and drained first by placing a tube through one’s abdominal wall into the abscess. The tube may be left in place for a few hours or days while the infection is clearing up but ultimately one would still have surgery to remove the appendix.

Peritonitis – without treatment, the appendix can rupture/burst. The risk of this rises 48–72 hours after symptoms start. A ruptured appendix spreads the infection throughout the abdomen (peritonitis). This is life threatening and requires immediate surgery to remove the appendix and clean the abdominal cavity.

Death – The complications of appendicitis (and appendectomy) can be life threatening, only if the diagnosis has been missed and no proper treatment has been given on time. This is rare though with the evolved medical care.

If you need further advice or treatment please call 4924730, email  HYPERLINK “mailto:info@themedicscentre.co.bw” info@themedicscentre.co.bw or visit www.themedisccentre.co.bw

Antoinette Boima, MBBS, BMedSci, PgDip HIV/AIDS, Cert Aesth Med is the Managing Director of The Medics Centre in Palapye.

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A degree of common sense

7th February 2022

Here’s a news item from last month you may have missed. In December 2021 the University of Staffordshire announced it would be offered a degree course in pantomime! Yes, that’s right, a degree in popular festive entertainment, the Christmas panto.

We used to have one here, put on by the Capitol Players, though it seems to have fallen away in recent times, but the spectacle is still alive and well in the UK, both in local ad-dram (amateur dramatic ) societies and on the London stage and most of the major cities, these latter productions usually featuring at least one big-draw name from the world of show business with ticket prices commensurate with the star’s salary.

In case you’re unfamiliar with the pantomime format, it consists of a raucous mixture of songs and comedy all based around a well-known fairy or folk tale. Aladdin and His Magic Lamp, Cinderella, Jack & The Beanstalk & Dick Whittington are perennial favourites but any well-known tall tale goes. There is no set script, unlike a play, and storyline is just a peg to hang a coat of contemporary, often bawdy, gags on, in what should be a rollicking production of cross dressing – there has to be at least one pantomime dame, played by a man and always a figure of fun, and a Principal Boy, ostensibly the male lead, yet played by an attractive young woman.

As an art form it can trace its roots back to 16th century Italy and the Commedia Del’Arte which used a mélange of music, dance, acrobatics along with a cast of comic stock characters so it has a long and proud theatrical tradition but you have to wonder, does that really qualify it as a suitable subject for a university? Further, what use might any degree be that can be acquired in a single year? And last but not least, how much standing does any degree have which comes from a jumped-up polytechnic, granted university status along with many of its ilk back in 1992, for reasons best known to the government of the time? Even more worrying are the stated aims of the course.

Staffordshire University claims it is a world first and the masters course is aimed at people working inside as well as outside the industry. Students on the course, due to start in September 2022, will get practical training in the art form as well as research the discipline.

“We want to see how far we can take this,” Associate Professor of Acting and Directing Robert Marsden said. The role of pantomime in the 21st Century was also going to be examined, he said, “particularly post Me Too and Black Lives Matter”. Questions including “how do we address the gender issues, how do we tell the story of Aladdin in 2021, how do we get that balance of male/female roles?” will be asked, Prof Marsden added.

Eek! Sounds like Prof. Marsden wants to rob it of both its history and its comedic aspects – well, good luck with that! Of course that isn’t the only bizarre, obscure and frankly time and money-wasting degree course available. Staying with the performing arts there’s Contemporary Circus and Physical Performance at Bath Spa University. Sounds like fun but why on earth would a circus performer need a university degree?

Or how about a Surf Science and Technology degree at Cornwall College (part of the University of Plymouth). Where the one thing you don’t learn is….how to surf!

Then there is a  degree in Floral Design at University Centre Myerscough. No, I hadn’t heard of it either – turns out it’s a college of further education in Preston, a town that in my experience fits the old joke of ‘I went there once…..It was closed’ to a ‘T’!

Another handy (pun intended) art is that of Hand Embroidery BA (Hons), offered at the University for the Creative Arts. Or you could waste away sorry, while away, your time on a course in Animal Behaviour and Psychology. This degree at the University of Chester teaches you about the way animals think and feel. Cockroaches have personalities according to the subject specs– you couldn’t make it up.

Happily all these educational institutes may have to look to their laurels and try to justify their very existence in the near future. In plans announced this week, universities could face fines of up to £500,000 (P750m), be stripped of their right to take student loans or effectively shut down if they cannot get 60 per cent of students into a professional job under a crackdown on ‘Mickey Mouse’ courses. Further, at least 80 per cent of students should not drop out after the first year, and 75 per cent should graduate.

The rules, published by the Office for Students (OfS), aim to eliminate ‘low-quality’ courses by setting new standards & requiring courses to improve their rating in the TEF, the official universities ratings system. Universities not meeting the new standards will not be able to charge full annual fees of £9,250. Unconventional courses that could fall victim to the new rules could include the University of Sunderland’s BA in Fashion Journalism, where students learn essential’ skills such as catwalk reporting and the history of Chanel.  They have only a 40 per cent chance of entering highly skilled work 15 months after leaving.

At University College Birmingham, BSC Bakery and Patisserie Technology students – who learn how to ‘make artisan bread’ – have a 15 per cent chance of a professional job within 15 months. Universities minister Michelle Donelan welcomed the move, saying ‘When students go to university, they do so in the pursuit of a life-changing education, one which helps pave their path towards a highly skilled career. Any university that fails to match this ambition must be held to account.’

OfS found that at 25 universities, fewer than half of students find professional work within 15 months.  Business and management courses at the University of Bedfordshire (14.8 per cent) were among the least likely to lead to graduate-level jobs.  Asked to comment, the University of Sunderland said it always looked ‘to find ways to improve outcomes’; University College Birmingham said data on graduates and definition of ‘professional work’ was limited. I’ll bet it is! As the saying goes, ’what the eye doesn’t see, the heart doesn’t grieve over’. What a pantomime!

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Why regular health checks are important!

7th February 2022

With the world still reeling from the negative impact of the Coronavirus disease-19 (COVID-19), and the latest Omicron variant (which is responsible for the ongoing global forth wave) on everyone’s lips, we should not forget and neglect other aspects of our health.

While anyone can get infected with corona virus and become seriously ill or die at any age, studies continue to show that people aged 60 years and above, and those with underlying medical conditions like hypertension, heart and lung problems, diabetes, obesity, cancers, or mental illness are at a higher risk of developing serious illness or dying from covid-19.

It is a good habit to visit a doctor regularly, even if you feel healthy. Regular health checks can help identify any early signs of health issues or assess your risk of future illness hence prompting one to take charge and maintain a healthy lifestyle. Heart disease, diabetes, some cancers and other non-communicable diseases (even communicable) can often be picked up in their early stages, when chances for effective treatment are high.

During a health check, your doctor will take a thorough history from you regarding your medical history, your family’s history of disease, your social life and habits, including your diet, physical activity, alcohol use, smoking and drug intake. S/he will examine you including measuring your weight, blood pressure, feeling your body organs and listening to your heart and lungs amongst the rest. Depending on the assessment, your doctor will notify you how often you need to have a health check. If you have a high risk of a particular health condition, your doctor may recommend more frequent health checks from an early age.

Diet – a healthy diet improves one’s general health and wellbeing. It is recommended that we have at least two serves of fruit and five serves of vegetables daily. Physical activity – regular physical activity has significant health benefits on one’s body, mind & soul. It contributes to preventing and managing non-communicable diseases such as cardiovascular diseases, cancers and diabetes, reduce symptoms of depression and anxiety, enhances thinking, learning, and judgment skills and improves overall well-being. According to the world health organisation (WHO), people who are insufficiently active have a 20% to 30% increased risk of death compared to people who are sufficiently active. Aim for 30 minutes to an hour of moderate physical activity at least four days in a week. Examples of moderate physical activity include brisk walking, gentle swimming and social tennis.

Weight – maintaining a healthy weight range helps in preventing long-term complications like cardiovascular disease, diabetes and arthritis. It is also vital for one’s mental wellbeing and keeping up with normal activities of daily living. Ask your doctor to check your body mass index (BMI) and waist circumference annually. If you are at a higher risk, you should have your weight checked more frequently and a stern management plan in place.

Alcohol – as per WHO reports, alcohol consumption contributes to 3 million deaths each year globally as well as to the disabilities and poor health of millions of people. Healthy drinking entails taking no more than two standard drinks per drinking day with at least two alcohol-free days in a week.

Smoking –Nicotine contained in tobacco is highly addictive and tobacco use is a major risk factor for cardiovascular and respiratory diseases, many different types of cancer, and many other debilitating health conditions. Every year, at least a whopping 8 million people succumb from tobacco use worldwide. Tobacco can also be deadly for non-smokers through second-hand smoke exposure. It is not ‘fashionable’ if it is going to cost you and your loved ones lives! If you are currently smoking, talk to your doctor and get help in quitting as soon as possible to reduce the harm.

Blood pressure: Hypertension is a serious medical condition and can increase the risk of heart, brain, kidney and other diseases. It is a major cause of premature death worldwide, with upwards of 1 in 4 men and 1 in 5 women – over a billion people – having the condition. Have your blood pressure checked annually if it is normal, you are aged under 40 and there is no family history of hypertension. You might need to have it checked more frequently if you are over 40, your blood pressure is on the high side, or you have a personal or family history of high blood pressure, stroke or heart attack. Your doctor will be there to guide you.

Dental care – eating a low-sugar diet and cleaning and flossing the teeth regularly can reduce one’s risk of tooth decay, gum disease and tooth loss. Visit a dentist every six months for a dental examination and professional cleaning, or more frequently as per your dentist’s advice.
Blood tests – annual to five-yearly blood tests may be done to further assess or confirm risk of disease. These may include blood sugar levels, cholesterol levels, kidney function, liver function, tumour markers, among other things. They may be done frequently if there is already an existing medical condition.

Cancer screening – various screening techniques can be done to detect different cancers in their early or pre-cancer stages. These include; skin inspections for any suspicious moles/spots, two-yearly mammograms for those at risk of developing breast cancer, Pap smear or the new Cervical Screening Test (CST) every five years, stool tests and colonoscopy (every five years) for those at most risk of bowel cancer, prostate cancer screening for those at risk (over 45 years of age, family history of cancers etc.). Discuss appropriate tests with your doctor.

Vaccinations – You should discuss with your doctor about the necessary routine immunisation, in particular; the Covid-19 vaccines, an annual flu shot, a five-yearly pneumococcal vaccine if you have never had one or you are immunocompromised and any other boosters that you might need.

If you need further advice or treatment please call 4924730, email HYPERLINK “mailto:info@themedicscentre.co.bw” info@themedicscentre.co.bw or visit www.themedisccentre.co.bw

Antoinette Boima, MBBS, BMedSci, PgDip HIV/AIDS, Cert Aesth Med is the Managing Director of The Medics Centre in Palapye.

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