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Is Botswana a constitutional democracy (Part I)

Ndulamo Anthony Morima

Botswana has been hailed as one of the world’s greatest democracies where the rule of law, independence of the judiciary and separation of powers between the Legislature, Executive and Judiciary reign supreme.

It holds regular elections every five years and has its elections, which are generally regarded as free and fair, conducted by an Independent Electoral Commission (IEC), though its independence is questioned by some. Yet, in my view, while Botswana’s position as a majoritarian democracy is incontrovertibly prime, its status as a constitutional democracy is questionable.

In this series, I, albeit in a cursory manner because of space constraints, consider whether Botswana is a constitutional democracy, or it is a mere majoritarian democracy. It is apposite that before the discussion, a definition of a constitutional democracy versus a majoritarian democracy should be proffered?

A constitutional democracy can be defined as a system of government where powers of the majority are exercised within a frame work of the constitution designed to guarantee the rights of all, not just the majority. In a constitutional democracy the authority of the majority is limited by legal and institutional means so that the rights of individuals and minorities are respected.

In a constitutional democracy, coalition and/or majority rule is balanced by minority and individual rights and interests. Here, deference is not just to the majority, but also and most importantly to the supreme law, the Constitution. On the contrary, in a majoritarian democracy, the emphasis is not the Constitution, but on the will of the majority no matter how such will tramples on the will and interests of the minority.

Therefore, the fact that a country, as many do, has a document called a Constitution, does not necessarily mean it is a constitutional democracy. In fact, few countries are constitutional democracies. Many are majoritarian democracies. Not even the so-called liberal democracies are necessarily constitutional democracies. The question is: is Botswana a constitutional democracy or it is a mere majoritarian democracy? In attempting to answer this question, we compare Botswana’s Constitution with that of South Africa.

Chapter 1 of South Africa’s Constitution defines South Africa  as "one, sovereign, democratic state" based on principles of human rights, constitutional supremacy, the rule of law and universal adult suffrage. This chapter contains a supremacy clause which establishes that all other law and actions are subject to the constitution, and that any law or action not in consonance with the Constitution is invalid.

Chapter 1 of Botswana’s Constitution declares Botswana as a sovereign Republic and provides that the Public Seal of the Republic shall be such device as may be prescribed by or under an Act of Parliament. Compared to South Africa, therefore, Botswana’s foundational provision, Chapter 1, does not hinge the country’s democracy on constitutional supremacy. It rather, like that of its colonial master the United Kingdom, hinges it on sovereignty.

Granted, Botswana is a democratic state based on principles of human rights as enshrined in chapter II of the Constitution, but that does not make it a constitutional democracy. Of course, Botswana, like South Africa and many other countries, observes the rule of law and gives potency to universal adult suffrage, but does not necessarily make it a constitutional democracy either.  

Chapter 9 of South Africa’s Constitution provides for State Institutions Supporting Constitutional Democracy, namely the Public Protector, the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General, the Independent Electoral Commission and the Independent Communications Authority.

Botswana’s Constitution has no provision for state institutions supporting constitutional democracy in the areas of promotion of human rights, cultural, religious and linguistic communities and gender equality. Of all these institutions, Botswana only has an Ombudsman, an equivalent of South Africa’s Public Protector, the  Independent Electoral Commission(IEC) and the Auditor-General which, except for the Auditor-General, are not even constitutional creatures, but are provided for by other law.

The reality is that, in Botswana, there are no state institutions supporting the promotion of the constitutional rights enshrined in Chapter II of the Constitution which provides for the protection of fundamental rights and freedoms of the individual. State institutions supporting constitutional democracy should not be confused with such government departments as the Department of Gender Affairs, for instance, which, because they are part of the Executive, invariably protect the interests of the State, often at the expense of citizens’ constitutional rights.  

In South Africa, the state institutions supporting constitutional democracy stand guard over the rights provided for in Chapter II of the Constitution, the Bill of Rights. Consequently, the rights of all sections of the society, no matter how minor they are, are agitated for.

In Botswana, citizens, especially minorities, rely on such pressure groups as Ditshwanelo Centre for Human Rights, Emang Basadi (EB), Lesbians, Gays & Bisexuals of Botswana (LEGABIBO), Kamanakao Cultural Organization (KCO), Special Promotion of Ikalanga Language (SPIL) and First People of the Kalahari (FPK) to agitate for their rights.

Unfortunately, because of lack of resources and lack of recognition by government, these pressure groups have very limited impact in the promotion and protection of citizens’ constitutional rights. They need the support of such constitutionally recognized and well-resourced state institutions supporting constitutional democracy as the Public Protector in South Africa which has, because of its gravitas, protected the rights of millions of South Africans.

As I argued in last week’s column, Botswana needs a Human Rights & Good Governance Commission as one of the state institutions supporting constitutional democracy. Of course, Botswana prides itself with an independent judiciary, but many Batswana, especially the minority whose constitutional rights are violated, are not able to have legal recourse because of the prohibitive costs of retaining an attorney.

Chapter 12 of South Africa’s Constitution recognises the status and authority of traditional leaders and  customary law, subject to the Constitution. This provision, which is non-existent in Botswana’s Constitution, protects the citizenry from arbitrary exercise of power at the expense of citizen’s rights and liberties which is often dispensed under the guise of tradition and custom.

In view of the aforegoing, I am of the view that though Botswana thrives to respect its Constitution, it is not a constitutional democracy, but rather a majoritarian democracy. This does not, however, mean that Botswana is a dictatorship. It simply means that constitutional supremacy does not have the primacy of place in Botswana’s democratic dispensation.

Absurd as this might sound, in my view, the Constitution is not the foundational pillar of the being of Botswana’s nation state. It is the people’s will that is, and sometimes that peoples' will takes precedence over the constitutional imperatives. Botswana’s democracy is, in any event, defined as ‘government of the people for the people and by the people’. The emphasis is the people, not the constitution isn’t it? And by the people, it can only be meant the majority isn’t it?

Now that we have concluded that Botswana is not a constitutional democracy, in the second part of this series we discuss the several examples which demonstrate our conclusion. In the final part of this series we suggest the constitutional amendments which are required to make Botswana a constitutional democracy if that is indeed its aspiration.

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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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