Saturday, September 19, 2020

Book Review: Constitutionalism and the Rule of Law in Botswana

Judge of the High Court of Botswana delivers yet again another incisive legal text: Constitutionalism and the Rule of Law in Botswana. This is real time delivery, at a time when the country is reflecting on a review of the constitution and with a number of topical issues on discussion in the public domain and before the courts. The book straddles many topics of constitutional importance, spanning the historical development of the rule of law from the time the dikgosi where in charge, to the usurpation of their powers by the colonial administration away from the tswana custom and tradition to the dictates of the colonialist at the same time preserving customary law for the locals thereby creating a dualistic legal system with customary law subsisting with common law. It gives analysis on the Bill of Rights in the constitution, their interpretation and drawing perspective from case law from other jurisdiction and international legal instrument. A chapter is dedicated to Constitutionalism, the rule of law and the Constitution, the Right to vote and the electoral process, organs of government, public affairs and public office, addressing issues of public finance and lastly constitutionalism and international law.

He reflects that a constitution is a product of its historical circumstances and it is better understood in the backdrop of the country’s legal history. Chapter one is quite informative on the development of the legal system in Botswana. Our constitution was a negotiated document between the political leadership and the colonial administration. A proposal at a London conference, by PG Matente to consult the people of Botswana in developing the constitution was refused by the attendants, which led him walking out of the meeting. Dinkgake opines that the Botswana Constitution was more of a social contract amongst the negotiating parties to cement independence and that it clearly lacked the democratic participation of the people, as is the case with most modern constitution. Notwithstanding how it came into being, the constitution of Botswana remains sacred, providing legal framework to the operations of government, empowering government bodies, defining their powers , the rights of citizens and residence and limiting governmental power. He states that the following principles underlie a good constitution; constitutionalism, the rule of law, democracy and accountability, separation of powers, and checks and balances, principles that are embraced by the constitution of Botswana. Constitutionalism, meaning that the power of the government should be defined and limited by law to protect the interest of society. The rule of law, that no one is above the law including organs of state. He indicates that although the concept of democracy is nowhere mentioned in the constitution, there can be no doubt that the constitution recognizes representative democracy to the extent that it provides for the establishment of government through periodic elections.

On the Bill of Rights he explores briefly the concept of horizontal versus vertical application. The traditional view being that it is vertically applicable as against the abuse of state power and not horizontally, that is private parties. He asks a question, how about powerful private entities, as the state is, should this position of applicability of bill of rights still hold?

Concerning the amendment of the constitution, he writes that it must not be easily amended because it embodies the aspiration of the people and at any rate its interpretation should be in light of the contemporary political and social context, to remain a ‘living document’ and not a ‘museum piece’. He is not opposed to necessary amendments because on a regular basis society undergoes profound social, political, economic, demographic and technological changes. ‘Its important to put in place transparent and dignified process of changing it’. The constitution in Botswana provides three (3) procedures that pertain to ordinary provisions, entrenched provisions and specially entrenched provisions.

‘It is incumbent upon the courts to develop the constitution so that it can be able to meet the just demands and aspirations of an ever developing society which is part of the wider and larger society’, writes the judge.

The book has an interesting chapter on the basic principles of the Botswana Government. Policy makers and politicians would find this quite interesting and educational. Traversing issues such as peaceful and civil co-existence of the ruling and opposition parties, the fruits of self government and that an ignorant society cannot be democratic and that a functioning democracy need a media with integrity and credibility beyond reproach. He asks the question whether its time to include socio-economic rights in the constitution, considering their non-existence at the moment? This includes the right to health, shelter etc.

On the Bill of Rights whilst discussing the right to life he touches on some of the most vexed topics such as death penalty, Euthanasia and abortion. The book provides a spring board for debating some of this issue considering the author tackles some of the arguments from a principle perspective and taking the argument further on incremental basis. This enables the reader to follow the arguments without being lost in jargon that usually characterise some law text. For example on Euthanasia the author probes ÔÇô A person who is terminally ill and suffering badly do they have the right to be assisted to die? That is to terminate one’s life! Does abortion or termination of pregnancy amounts to a violation of the right to life or an interference with the reproductive rights of a woman and violating her bodily integrity? Is the argument that death penalty is inhuman and degrading untenable because the constitution allows it? In dealing with the right to property he interrogates aboriginal title in light of the Sesana and others v AGs were the High Court ruled that CKRG has been the domain of the Basarwa for a number of centuries and consequently they are indigenous to the area. Freedom of movement, should it include the right to be issued with a passport?

Whether stop and search operation by the police is not a violation of the freedom of movement? Do citizens have the ability to go about their business without the need to explain to anyone in authority what they are doing and without fear that they may be subjected to arbitrary challenge or arrest? Can you make fundamental decisions about your intimate relationship without penalization? Do you have the right to be left alone, to occupy a private space free from government instruction and to get on with your life?

The constitution of Botswana states who has the right to vote and section 67(1) (c) seems to give effect that a female adult citizen who is married to a foreigner living abroad acquires her husband’s domicile and loses her own domicile of origin and if she leaves the country to stay with her husband abroad for a continuous period of more than twelve months and does not acquire citizenship of another country she will not be an eligible voter. The same does not apply to a male citizen in similar circumstances; the effect of the law therefore discriminates against female citizens. The author submits that such discrimination would be open to constitutional challenge on the grounds that it is discriminatory contrary to section 15 of the constitution.

He emphasise the importance of a free and fair voting, that a procedure must exist to be able to deal promptly and effectively with complaints, any delay may arise serious doubts of validity of the results and legitimacy of the government.

There is a chapter dealing with organs of government. In dealing with the executive he makes mention of presidential immunity and inevitable the Motswaledi case and provides a commentary on the decision indicating that constitutional interpretation is laden with value judgments and that there is nothing like ‘this is the only correct answer’. He goes through a number of court decisions in assessing the role of the judiciary in the protection of human rights.

Public Affairs and Public Office are governed by the law. He cites the handling of public finance and analysis the different legislation regulating public finance, from the consolidated funds created by the constitution and that withdrawals must be authorised by law and provisions on accountability. This will be very handy as an ease of reference for those in the public service and knowing the delimitation of their responsibility. He deals with a number of significant public offices such as the Directorate of Public Prosecutions, Ombudsman and Attorney General (AGs). He indicates that in other jurisdictions the AGs office is a political office, whereas in Botswana it is tricky ÔÇô the AGS appears to be a public officer, yet he or she has attributes of a politician especially when he or she sits in cabinet.

In a country without readily available books this volume is a milestone in the contribution of knowledge and information. It gives critical information about the working of the governments, and its regulations, the constitution is the centre piece of the analysis and fits well into the contemporary debates.. It is easy to read and deals justice to the various sources of law. It would be quite handy to have to all those concerned with constitutional and human rights and to policy makers to aid their understanding. There is no doubt lawyers will feast on it and when dealing with some of the areas that have not been adjudicated upon by the court, the book will be an important persuasive sources to the bench.

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Sunday Standard September 20 – 26

Digital copy of Sunday Standard issue of September 20 - 26, 2020.