Will the real Masisi please stand up?

14 Oct 2018

It will be interesting to see which Mokgweetsi Masisi steps down at the end of his Presidential term: The founding father of a truly democratic Botswana or just another stuffed suit who watched as history overtook him.

So far the president has been making all the right noises. He has made public his views on the need for constitutional reform and the need to amend the constitution to address inadequacies in the model inherited from the British at independence.  Although Masisi has publicly stated his wish for a constitutional reform to allow him greater latitude in selecting cabinet ministers, Vice President Slumber Tsogwane was quoted in the Botswana Gazette saying the Masisi administration does not have a concerted policy on constitutional reform, though it is not averse to the move and will leave it to ministers to make proposals to cabinet and parliament.

Over the last two months however there have been indications suggesting a more nuanced approach by government towards a proactive stance on constitutional reforms. Masisi’s receptiveness to constitutional reform has emboldened civil society to address growing public concerns over the inadequacies of the constitution. These shortcomings were made all the more apparent under the Khama regime and its consolidation of executive authority over democratic watchdog institutions such as parliament the judiciary, the independent electoral commission and the Ombudsman, amongst others.   

The debate on the need for constitutional reform has been ongoing since independence, though it has been limited to the legal profession, academia and opposition politics. For five decades the ruling Botswana Democratic Party led Government has taken a back seat to wholesale constitutional reform, addressing concerns as and when forced to do so by political expediency. The introduction of the Independent Electoral commission, the establishment of limited terms of tenure for the President, the creation of the Directorate of Public Prosecutions and the Ombudsman are some of the key pro-democratic governance amendments. The party however has been widely condemned for entrenching its pollical hegemony by introducing “automatic succession,” failing to address the electoral system and the overarching role the executive plays under the constitution.

The Department of Law at the University of Botswana last week hosted the African Network of Constitutional Lawyers Biennial Conference 2018. The conference attended by internationally acclaimed constitutional lawyers, judges and academics sought to raise awareness into the decline in the rule of law in Africa particularly and the world generally. The conference further aimed to create awareness of the internationally accepted best practises in establishing a truly people driven constitution that is reflective of the will of the people and not the will of an established elite sector of society.

Professor Bugalo Maripe, the co-ordinator of the programme for Botswana, Speaking on Gabz FM on Thursday with Prof Bilchitz highlighted the need to establish greater independence for democracy institutions in the form of parliament, the judiciary and other oversight institutions such as the media, “The media plays a key oversight in democratic governance,” Prof Bilchitz stated, “a vibrant, independent media is vital to democracy and needs to be protected in much the same manner as the Judiciary and other such institutions need to be protected from intrusions by the arms of government.” Both Maripe and Bilchitz emphasised that in order for any constitutional reforms to gain legitimacy among Batswana, such reforms would require direct citizen participation, openness and transparency by government at all stages of the process, from conceptualization, developing its strategy through to the implementation of the constitutional reform itself.

Prof Bilchitz is widely regarded as a world leader in Constitutional Law, the philosophy of constitutional law and development of fundamental rights and democratic governance. He is currently a law professor with the University of Johannesburg and Secretary General of the International Association of Constitutional Lawyers. Prof Maripe is with the Department of Law at the University of Botswana, with a long and distinguished career as a Lawyer and a recognised advocate of fundamental rights.

Parliament in 2009 approved the establishment of the Law Review Committee, but it was not until, the absolutist Khama regime had been removed that the Committee formally commenced proceeding with its first public engagement in mid-September 2018.

Answering Sunday Standard questions Karabo Marumo the principle public relations officer at Attorney Generals Chambers explained that the central theme of the Unit was to reform all laws for the “protection and promotion of human rights.” The Unit was established under the Attorney Generals’ Drafting Division and is not independent of government.

While responses to the Sunday Standard questionnaire were vague, the public relations officer stated that the Unit was working with the United Nations Development Programme (UNDP) and had engaged an external consultant to assist in devising a strategy and implementation programme. He would not disclose the identity of the consultant. Asked if it would look into the constitution and the need to review it, Marumo said constitutional reform was a government policy decision and not for the attorney general to advise on.

The Attorney General is mandated under the Constitution to advise the Government on all aspects of the law as well as the need to reform all laws, inclusive of the Constitution. The law Review Committee was mandated by parliament to consider all laws to promote human rights. The constitution is the founding document that gives rise to all considerations of human rights.

Marumo further revealed that civil society, NGOs and the public had been invited to its September seminar.  Although Ditshwanelo the Botswana Centre for Human Rights attended, BONELA said it was not invited. Little or no public calls were made for the September seminar and despite diligent searches of local media no public announcements could be found calling for public participation at the important plenary session of the Law Review Committee.

The public debate on constitutional reform has gained traction over the last year since BOFEPUSU held a conference on Constitutional Reform in February this year. Central to the BOFEPUSU conference was the theme of decolonising the law and the constitution and making it more reflective of the society in which it operates. The conference reflected on the inadequacies of the Constitution that had become prevalent under the Khama regime and the need to introduce a proper Bill of Rights to reflect the mores and values of Batswana. Speaking at the conference, shortly before he was declared a prohibited immigrant, a decision reversed by President Masisi, Attorney Salbany spoke of the need to infuse the constitution with the ideals of the society it aimed to protect, and establish constitutionally protected oversight bodies “totally devoid of political intrusion” much as in the same manner as the South African constitution. “Our legal system is Roman-Dutch, with a strong English Law influence, these are foreign laws imposed as a result of a colonial legacy. They do not reflect the values of the majority of Batswana, concepts of Botho as a basis to legal principles have not been adopted into our laws which therefore fail to meet democratic muster,” argued Salbany.

Addressing the Commonwealth Judges and Lawyers forum in Australia last September former Botswana High Court Judge Key Dingake spoke on the need to ensure the protection of the rights of minorities and the imperative to introduce wholesale reforms to the Constitution of Botswana if the country seeks to maintain its position as a leader in democratic governance.  Speaking to this publication shortly after the conference, Justice Dingake spoke of the need to have a “genuine peoples constitution, made by the people for the people, and in order to achieve this objective party politics needs to be put aside, such reforms are needed for the wellbeing of the nation. The constitution needs to be a peoples project and not imposed from above, all facets of the process need to be open and transparent, the public needs to be engaged and full debates need to be given to all the aspect of such fundamental reform.” Dingake noted that “without public trust in the process of constitutional reform, it will fail to achieve its objectives; the betterment of our nation.”

Under benevolent leadership the constitution of Botswana has showed Africa and the world what the nation could achieve but the last 10 years of the Khama regime have revealed the failings of the Constitution under an autocratic system that has eroded Botswana’s international standings on civil and political rights.  The Masisi administration has been receptive to constitutional reform, albeit under a narrow parameter. In adopting a position that such changes must be driven from a ministerial level public confidence and trust in the process will not be achieved. By adopting a more purposeful approach and openly stating that under his government the constitution will be revised to be more inclusive of our society, as reflective of a truly democratic dispensation that moves away from its colonial influence Masisi stands to leave a legacy as the father of a truly democratic Botswana.

What is certain however is given the growing public awareness into the need to reform the constitution Botswana is inexorably moving in that direction, with or without the current administrations blessings.