It was that renowned French philosopher Baron de Montesquieu, who, in 1748, coined the concept of separation of Powers. In his The Spirit of Laws, he observed that a concentration of power in the monarchy leads to tyranny and came up with the concept of a three-tier government, comprising the Executive, the Legislature and the Judiciary. This concept was to provide the foundation of the modern State and has been adopted into the constitutions of the majority of States espousing liberal democracy such as Botswana.
“Separation of powers was designed to implement a fundamental insight; concentration of power in the hands of a single branch is a threat to liberty. The accumulation of all power, legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny,” pronounced Justice Kennedy, in 1998, in the celebrated case of Clinton vs City of New York.
In this case, the American Supreme Court impugned as unconstitutional, President Clinton’s powers (dubbed the “Line Item Veto”) conferred on him by a law that empowered him to veto portions of any bill passed by the legislature.
The recent developments surrounding the privatization of Air Botswana bring into sharp focus the notion of separation of powers within the context of Botswana and the extent to which this country’s Executive is prepared to sanctify it.
It is reported that legislator Khumo Maoto has recently successfully tabled a motion halting the Air Botswana privatization. Even before the ink on the motion has dried, the Minister of Works and Transport has, according to Press reports, proclaimed ÔÇô somewhat in a feat of defiance ÔÇô that it is business as usual at the Public Evaluation and Privatization Agency (PEEPA) and that negotiations for the privatization of the national carrier are proceeding unabatedly.
If the said reports are true ÔÇô and God forbid if they are ÔÇô then, the Republic’s democracy is entering a scary phase and we all have cause to be alarmed. It would mean that the Executive wing of Government (comprising cabinet ministers and the President) is prepared to unashamedly spurn and defy Parliament. If this precedent is not arrested as a matter of urgency, we could well, in future, witness instances where the Executive flagrantly defies Judicial pronouncements ÔÇô an emergence of the unitary State and a total relapse into the dark ages.
The Privatization Policy of 2000 recognizes that: “Privatization is a political process as well as a commercial and economic process. Privatization changes the distribution of power within a society, as it diminishes the control of the economy by the State. Therefore, public support is a major consideration in any privatization programme”
In a Parliamentary democracy, Parliament is representative of the public and its members are chosen at the pleasure of the voting public. The rational behind the doctrine of separation of powers hinges, in part on this. If the government is really bent on continuing with the negotiations for Air Botswana privatization, despite Parliament disapproval, not only would it be flouting its Policy, but also the will of the people.
The Privatization Policy further proclaims that “privatization will only be successful when government respects and inform the public”. It would appear, however, that in the case of the Air Botswana Privatization, government has been less than candid with the process it is (or seeks) to engage in. The policy prescribes various forms of privatization: chief amongst them being corporatisation. This process entails the transformation of a public enterprise, created by an Act of Parliament, into a company incorporated under the Companies Act. This approach to privatization has been the government method of choice ÔÇô until now.
In 2003, Parliament convened. Amongst the bills, in its kitty, to be passed into law that year was the Air Botswana (Transition) Act. This law was to “provide for the registration of Air Botswana as a public company under the Companies Act; for its continued existence as if it had been incorporated under that Act.” The law passed without event and on the 27th August that year, the President placed his seal of approval on it ÔÇô a process called “assent”.
The operation of the Air Botswana (Transition) Act was however ÔÇô for reasons only beknown to the President and his cabinet ÔÇô put on halt ÔÇô to date. Suspending the date of operation of a law already passed is a matter for the convenience of the Executive wing of government. What is important is that by passing a law, a clear legislative intent was signified and the process was then sealed by the Presidential assent to the piece of law passed. All these processes have been finalized in the case of Air Botswana (Transition) Act ÔÇô all and sunder. This law has even been made a chapter in the vast suite of the Laws of Botswana.
But the President and his cabinet had other designs ÔÇô not quite in sync with the specific Parliamentary intent of 2003, of converting the national carrier into a public company, with “Air Botswana” as its name.
It was just a question of time before the bomb ÔÇô shell was dropped ÔÇô and as recent as three weeks ago, Gaborone central legislator Dumelang Saleshando had asked Minister Motsumi whether Air Botswana was being “privatized” or “sold”.
The Minister is quoted as having retorted that: “the process seems well suited to meeting government’s strategic objective and compares favourably with other options. Preparations are underway for winding up Air Botswana”.
Surely, this posturing by the Executive flies in the face of a clear legislative spirit that has been manifested through the Air Botswana (Transition) Act. One is tempted to say that had it not been for timely, well taken question by the Member of Parliament, the winding up of the public enterprise would have been kept in the wraps, not only to Parliament but to the public. Parliament, has never, at any stage, directed that the airline be wound up, and this, quite naturally prompted the current stand off between Parliament and the Executive. Unless there is decisive intervention to diffuse this stand off, we must brace ourselves for a constitutional crisis, never witnessed before in this polity.
The Attorney General is the Chief Government legal adviser and the buck would obviously stop with her for any uninformed action on the part of the Executive, resulting in this untidy situation. As I part it might be apt to remind those in the high echelons of power that :-
“political constitutions are incomplete contracts and therefore leave scope for abuse of power. In democracies, elections are the primary mechanism for disciplining public officials, but they are not sufficient. Separation of powers between Executive and Legislative bodies also helps preventing the abuse of power, but only with appropriate checks and balances. Checks and balances work by creating a conflict of interest between the Executive and the Legislature, yet requiring both bodies to agree on public policy. In this way, the two bodies discipline each other at the voters’ advantage.”
