Connect with us
Advertisement

Is Botswana a constitutional democracy (Part I)

Ndulamo Anthony Morima
EAGLE WATCH

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.

Continue Reading

Columns

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.

Continue Reading

Columns

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.

Continue Reading

Columns

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.

This content is locked

Login To Unlock The Content!

Continue Reading
Do NOT follow this link or you will be banned from the site!