Thursday, December 5, 2019

Who protects our constitution?

There have been calls for some time in this country for a review of our constitution with very little discussion about protection of constitutional order. I will below demonstrate that there are instances in the past that show that there are real threats to constitutional order in this country that have manifested themselves without any of us taking notice.

There have been press reports that the Director General of DIS has made pronouncements that there are two centers of power in this country. Ordinarily if such pronouncement was made by some intellectual or political scientist I would not be concerned. However we must remember that Botswana is a constitutional republic whereat the constitution establishes the three different centers of power, being parliament, the executive and the judiciary.

One would assume that protection of the constitutional order is a primary national security imperative. A pronouncement that there is a center of power that cannot be given reason to be under the constitution suggests that there has been a failure on the part of the security establishment to protect constitutional order.

The making of such a pronouncement on the one hand, and the claim of stability on another presents a contradiction to any serious investor for it suggests that there is a threat to constitutional order in this country and thereby any investment that they may intend to make in this country. There is a need for the security establishment to be very careful with its pronouncements. In fact a security official who is conscious of the legal effect of such pronouncements would not lightly make them. I argue that a security official charged with national security cannot make such a statement without tendering his resignation. This statement suggests that he has allowed a threat to national security to emerge and mature without thwarting such threat.

In the case of Quarries of Botswana v Gamalete Development Trust a full bench of the Court of Appeal in dealing with the question of whether the amendment to the Tribal Land Act that included the land held by the Balete Chief under a deed of transfer, freehold, into Gamalete territory was contrary to Section 8 (6) of the constitution the court properly set out the terms of Section 8(6) of the constitution then in dealing with whether the section had been complied with did a very strange thing.

The section talks about the property being taken possession of and being compulsorily acquired in the public interest. It would be very strange if taking possession and compulsory acquisition were held to mean the same thing. In the case of compulsory acquisition the requirements for none payment of compensation are that the law for so doing must be an act of parliament and the property being taken must be held by a body corporate established by law for public purposes in which only money provided by parliament have been invested.

The court in its judgment changed the wording of the constitution from  “held by a body corporate” to “to be held by a body corporate” thereby justifying its position that the acquisition of the land held by the Balete chief was properly incorporated into Gamalete territory without compensation.  It is instructive to note that the compulsory acquisition was not from the Malete land board but from the Balete chief, and by any measure the Balete chief is not a body corporate established by an act of parliament.

A few months ago I read in one of the local papers the Attorney General purportedly in exercise of his power as the Law Revision Commissioner published a notice in the government gazette whereby he removed the reference to subsection 1 at Section 35(3) of our constitution which provided that an automatic succession president did not have power to dissolve parliament.

There have been arguments in the past that parliament in enacting for automatic succession omitted to amend Section 35(3) to ensure that an automatic succession president has full powers. Some have called this a drafting mistake. The difficulty with this argument is that it flies in the face of the Interpretation Act which provides that each copy of the original copy of an Act shall be conclusive evidence of the terms of the Act. To therefore talk of a drafting mistake as justifying a change to the terms of the constitution is with respect unsustainable.

Some have argued that because parliament has to be dissolved for us to go for elections the automatic succession president must have power to dissolve parliament. This argument is also flawed for it flies in the face of the constitution itself.  Section 91(3) of the constitution states that parliament shall continue for five years from its first sitting and thereafter stand dissolved. This means that by operation of the law parliament need not be dissolved by the president at all times for us to go for elections.

The constitution provides for the process of its own amendment at Section 89(1). The acts of the Law Revision Commissioner suggests that there is another process of amending the constitution where one person other than parliament can amend the constitution. Now Section 89(1) of the constitution sets out that the manner of how parliament can amend Section 35(3). It will be strange to hold that having set out the manner of amending the constitution by parliament there can be another extra parliamentary process for amending the constitution.

Such an extra parliamentary process for amending the constitution presents risks to our constitutional order for one person my wake up one day and remove provisions of the constitution supposedly in exercise of a power granted by a law that itself is subject to the constitution. This will be a very strange constitutional setup.

When I voted in 2014 I did not just vote based on what political parties said in their manifestos. I was exercising a right created by the very constitution that I am now being told can be amended by one man sitting outside parliament. I voted fully aware of our constitutional setup. To now have one man change the constitution and not parliament is with respect a reduction of the value of my vote and I find that unacceptable.

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