Our constitution deals with two issues as regards exercise of functions by the President where such are bestowed on him by the constitution or any other law. He or she shall unless it is provided otherwise act in his own deliberate judgment. He shall unless it is provided otherwise not be obliged to follow the advice tendered by any other person or authority.
Where the President acts, the constitution makes Cabinet responsible to the National Assembly for all things he or she does. To be responsible to someone means that you must justify the correctness, reasonableness or otherwise to that person. I cannot see how Cabinet can be asked to be responsible to the National Assembly for the President’s actions when “act in your own deliberate judgment” is deemed to mean “do not listen to anyone”. It is quite clear that the President’s room to act is limited by the Cabinet’s ability to account for his or her actions.
The duty to account imposed on the Cabinet must mean something. As a matter of fact one accounts to one’s superior, who has power to accept what you present, reject the same or seek for more information. The duty to account to the National Assembly suggests that the National Assembly is superior to the President.
In matters of policy of the government, the Cabinet is responsible for advising the President. How is the President supposed to treat the advice he is given by Cabinet on government policy? The constitution states that the President does not have to follow anyone’s advice. There is a big difference between ignore and not follow. An extreme position is that the president can ignore the advice, but this is not what the constitution says.
Within the government policy arena can the President not follow the advice given by Cabinet, and be deemed not to have acted or done something? I do not see how having consulted the Cabinet the decision not to follow the advice given can be deemed not to be an act on the part of the President. The conduct of the President as regards the advice he is given by Cabinet in the government policy arena falls within the area where Cabinet has to account to the National Assembly. The President may therefore not follow but Cabinet has a duty to account to the National Assembly as to the reasonableness of the President’s decision not to follow the advice tendered by Cabinet.
It is difficult to see how a President can expect Cabinet to account to the National Assembly for his actions and decisions without recognizing that such an arrangement places a duty on him to act reasonably. The space within which the President can move is actually limited when proper regard is had to our constitution, and places pressure on the President to have his Cabinet fully behind him on more substantive grounds than the nebulous concept of “collective responsibility” that is sometimes relied upon to the detriment of our progress as a nation.
There have also been suggestions that the President rules alone during the stage of public emergency. This position ignores the essence of our constitutional set up. Our constitution does not provide for suspension of provisions dealing with the President and Cabinet. Therefore Cabinet is at all material times responsible to the National Assembly for anything that the President does in exercise of his powers and functions under the state of emergency.
The question of the Green Book needs some attention. It has been said in the past that the Green Book arose as a consequence of the President exercising his powers under Section 47 of the constitution. The Green Book is therefore not a law. This suggests that it has not been authorized by parliament. Our constitution provides that all revenues raised or received for the purpose of the government of Botswana shall be paid into and form one Consolidated Fund. It goes further to state that no money shall be withdrawn from the fund except in the manner prescribed by parliament.
Save for amendments made to our constitution after independence, our constitution was not prescribed by our parliament. There is therefore no justification for suggesting that any power under Section 47 of our constitution was prescribed by parliament. To therefore suggest that Section 47 somehow entitles a President to withdraw money from the Consolidated Fund to finance privileges and allowances stipulated in the Green Book at his discretion is unsustainable. It introduces a situation where Section 47 contradicts Section 118 of our constitution.
It is quite possible that Section 47 of our constitution may entitle the President to list privileges that he believes he is entitled to. Parliament is however not obliged to finance those privileges. Where parliament has agreed to fund such privileges it has every right to demand that Cabinet account to it.
Can we continue to accept as gospel truth the story that our parliament lacks institutional independence, and is junior to the executive arm? We should draw a distinction between independence of parliament and independence of members of parliament. This distinction must also be made with regards to oversight institutions that are based at the Office of the President. The power to appoint alone cannot be the test of independence. If regard is given to what I set out above about Cabinet responsibility to parliament then the expectation is that parliament is indeed independent.
To my knowledge no Cabinet has ever since independence accounted to the National Assembly for the actions of the President. This is in my view is largely lingering attachment to bogosi. For some reason even though BDP had as one of its founding principles, the objective to reduce the arbitrary powers of dikgosi, it has in its approach to our constitution maintained a perspective of treating the President as a kgosi. This bogosi perspective has also influenced the position taken by our professors of law and constitutional jurists to take the view that a President can act as he pleases in exercise of executive power. I believe a closer look at our constitution will show that the problem is not with our constitution but with our professors, jurists, members of parliament, those who occupy Cabinet, and Presidents.
The past elections have presented us with a unique opportunity. In a situation where Cabinet accounts to the National Assembly it would be ridiculous to have Ministers making any input in the determination of whether the parliament can call upon Cabinet to account as to whether President has acted reasonably or not. We would have the 20 opposition members of parliament facing 17 of the ruling party backbench in determining the reasonableness of the President’s actions.
Popular myth also suggests that Permanent Secretaries control Ministers. If such obtains then there is failure to comply with our constitution. A Minister exercises general control and direction over a ministry and the Permanent Secretary only supervises subject to such control and direction. I am very aware of the view that Permanent Secretaries are accounting officers. I challenge anyone to show me how the notion of accounting officer under any law, displaces the Minister’s power to exercise control and direction over a Permanent Secretary as stated in the constitution.
A Permanent Secretary may appear before the Public Accounts Committee of Parliament, but this with respect can never be deemed to be sufficient compliance with our constitution as regards Cabinet having to account to the National Assembly. It is instructive to note that a President is given power to direct a Minister but a Minister relative to a Permanent Secretary is given more power; the power to direct and control.
The question that needs to be answered is what happens when parliament, the President, Ministers or Permanent Secretaries violate our constitution? The answer starts with fear. Ordinarily the President is commander in chief of the armed forces. If the armed forces follow a President who violates the constitution the threat of death informs our response. Secondly the attitude of our courts comes into play. Will our courts treat violation of the constitution as a private civil or criminal matter where the President has immunity? Our courts will be placed in a difficult situation of their continued existence when constitutional order does not exist anymore.
There are those who say lawyers are liars. These people may not be aware of the legal principle that accepts that life is fraught with danger. To therefore expect the law to be the ultimate protector is to misunderstand the limitations of the law. Review the constitution as much as you want, but if you do not change the quality of leaders you will continue to be subject to what I set out above.
In the final analysis the quality and beauty of a constitution is also determined by the sophistication of those who play the game. We play football in Botswana just like others play it in Britain and Germany. All play to the same rules. It is the quality of the players that make the leagues in Britain and Germany exciting. The opposition cannot continue to hide behind numbers of the BDP when as I demonstrate above, there are instances where the constitution negatives those numbers or makes them irrelevant.
