Contrary to Attorney Dick Bayford’s submission, Vice President Khama’s presidency is lawful, for it is in accordance with Section 35(1). There is, however, a dispute on interpretation of the constitution as to whether this is as far as it goes. It is this that I wish to address, mostly in relation to the position put forward by the Attorney General and Rre Sydney Pilane.
Is it the intension of the constitution to have a fully empowered President succeeded by another fully empowered one? I think we are all in agreement that the answer is yes.
How does the constitution achieve this intention? This is where the differences between us come to the fore.
Let’s set out fundamental flaws in the Attorney General’s and Sydney Pilane‘s positions:
Section 24(1) of the Interpretation Act says that no reference to the debates in the Assembly shall be used in an attempt to ascertain the purpose of an enactment. The Attorney General violates this.
The Attorney General and Pilane present passages of the memorandum of Act 16 of 1997. The proper memorandum is that of the constitution.
Both the Attorney General and Pilane make reference to the intention of Act 16 of 1997. The relevant intention is that of the constitution. There is no basis for assuming it is the same as the intention of Act 16 of 1997.
We are a Republic founded on a written law. My understanding of how we deal with written laws is that you first make an amendment to repeal the offending section.
The Attorney General and Pilane give themselves power to legislate. They decide what should have been in an enactment and what should not be there relying on the memorandum and the debates. Even the courts do not have power to do this.
These fundamental flaws are fatal to their position.
Throughout their submissions both Attorney General and Pilane state the right provisions of the Interpretation Act, unfortunately they apply the Interpretation Act to Act 16 of 1997, and not the constitution as it stands. This is fatal to their positions.
Their approach would have been appropriate had Act 16 of 1997 merely repealed Section 35 of the constitution, and provided for a succession process governed by this Act but outside the body of the constitution. This is the mistake in drafting that is also damaging to their case.
My initial submission was to caution our leaders to tread carefully and to submit what I believed was a safer route in the succession process: Assumption of the Presidency under Section 35(4) of our constitution. The only thing we would have lost was the automatic succession option.
Section 29 of the Interpretation Act states that an enactment shall be construed as a whole. The enactment to be construed as a whole is the Constitution as it stands, not Act 16 of 1997.
Below I will deal with constitutional sections that have a bearing on this matter that they ignore to the peril of their position:
In terms of Section 39(5) the Vice President does not shed his position as Vice President when he assumes office of President under Section 35. Section 39(5) suggests that Section 35(1) does not therefore transform the Vice President into the President. They cannot explain this by saying it is a mistake in drafting for the mistakes will pile up.
Section 127(5) of the Constitution states that where a person lawfully exercises the function of an office he may be referred to by the title of that office even when they are in an acting capacity. It excludes those exercising the functions of the office of President and Vice President under Sections 35, 36 and 37 of the constitution.
We must here note that Section 127(5) was not part of Act 16 of 1997. Both the Attorney General and Pilane have not accounted for this section. Not another mistake in drafting.
In terms of Section 39(2) the Vice President shall continue in office until the next election of President under Section 32 or Section 35. The only election under Section 35 is done by parliament in accordance with Section 35(4). I do not see this being addressed by both the Attorney General and Pilane. Perhaps another drafting mistake noted by someone who gives a literal interpretation to the constitution.
Their interpretation of the constitution requires us to disregard Sections 35(3), 39(2), 39(5), 127(5) of the constitution, and to ignore all Sections of the Interpretation Act that suggest any treatment that results in Section 35(4) taking precedence over Section 35(1). This is their version of a broad interpretation of the constitution.
In terms of Section 27 of the Interpretation Act an interpretation that would render an enactment ineffective must be discarded in favour of one that will enable it to have effect. The enactment to be given effect is the constitution and not Act 16 of 1997. Both the Attorney General and Pilane apply Section 27 to Act 16 of 1997 and not to the constitution.
The concept of a mistake in drafting that they advance, allowing sections of the law to be ignored, is dangerous. It introduces uncertainty in our law. How are the people of this country to know that there are no other drafting mistakes in any of our myriad laws together with their amendments? They introduce that which they say should not be introduced.
A look at Section 12 and other sections dealing with individual rights shows that we are a democracy. The test applied to the limitations of our rights is whether such limitation is acceptable in a democratic society. Democracy has underlying currents of election.
Section 57 dealing with the National Assembly also pushes forth the concept of election. Each constituency elects a representative to the Parliament.
Section 32 shows that a fully empowered President comes into office by election.
Section 35(4) shows that its fully empowered President comes forth as a result of election.
Section 39(1) on appointment of the Vice President requires election for endorsement.
Section 58 on appointment of the Speaker shows that he assumes office on the basis of election, so too does the Deputy Speaker.
The Chairman of the Ntlo ya Dikgosi assumes office on election.
This theme of election as a precondition for fully empowered political position is at the heart of our constitution. To therefore dismiss a section that takes away power where there is no election, Section 35(3) as it stands, on the basis that it is a mistake, reflects a failure to appreciate our constitution. In fact even without Section 35(3) the need for election would still obtain. Section 35(1) sticks out like a sore thumb an aberration.
Kgosi Sechele during the battle of Dimawe (Ramsay, Morton, Mgadla 1996) in refusing to deliver Mosielele to the Boers is said to have remarked “If I am to deliver him up, I shall have to rip open my belly” The constitution has swallowed up Section 35(3). To deliver this section to Act 16 of 1997 so that it can be called a mistake, to please proponents of automatic succession, requires us to rip up the belly of our constitution.
Section 35(4) is the provision of our constitution that is in concert with the democratic tenor of our constitution, the theme of election in order to be fully empowered.
I therefore still maintain that a Section 35(1) president cannot be fully empowered for he has not gone through election and needs to go through Section 35(4) to be fully empowered.
As regards the succession of Rre Mogae in 1998, when I said that he was a very lucky man, I meant exactly that, in order to spare those within BDP and the opposition who opposed his rise. In terms of Section 13(1) e of the Interpretation Act the repeal or amendment of an enactment does not affect rights which have already accrued. The 1994 parliament had the right under the old Section 35 of the constitution to elect the president upon the resignation of the incumbent. Because they did not know this Rre Mogae survived and was elected President under Section 32 of the constitution in 1999. So the use of Rre Mogae’s succession does not help Rre Pilane’s case. It was another occasion where we failed as a nation to understand our constitution.
Even if Parliament had wanted to provide for automatic succession such a law would be vulnerable to attack, for as shown above it is not in concert with the general theme of our constitution; that political office with full powers requires election in a democracy. I am now convinced that Act 16 of 1997 is unconstitutional.
We are a young nation and are therefore bound to make mistakes. In Setswana we say “Morogo wa ngwana ga o tlhophwe ditlhokwa”. I am in agreement with Pilane that there is no need for a scapegoat in this mater. We must honestly look at submissions in an objective manner and put things right and move on. Let us forgive our Attorney General. She is not responsible for what happened in 1997 and 1998, which lulled the nation into a false state. She is a very capable woman, but this time she is not in accord with our constitution.
