I have followed reports in some local papers and radio stations regarding submissions being made to the Presidential Commission on the Review of the Constitution. I find them very interesting and informative. I will here confine myself to some of the terms of reference such as assessing the strengths and weaknesses of the constitution in promoting and protecting peoples’ rights, promoting equality, national unity and democracy.
The Interpretation Act says when a statute confers a power, or imposes a duty to do anything, all such powers as are necessary to exercise the power or execute the duty are deemed to also be given. Note the absence of “peoples’ rights” It is really a public power statute not a peoples’ rights statute. Its silence on “rights” may explain why we have no recognition of the idea that by bestowing rights, the constitution grants them such powers as are necessary to enjoy those rights.
I am well aware of the notion that our courts interpret statutes that impact on personal rights narrowly. That is a curative mechanism, but that is not enough. It is not a constitutional mechanism. We need the Interpretation Act to treat individual rights the same way it treats grants constitutionally and statutorily conferred powers and imposed duties. It seems to me that it is this absence of reference to “rights” in the Interpretation Act that creates the situation where we supposedly have freedom of association but no group rights, such as tribal rights.
The idea that subtraction from rights can be limited by what is allowed in a “democratic state” is problematic, for neither the constitution nor the interpretation Act define what a democratic state
I find it interesting that there is no specific term of reference dealing with our opinions on the strengths and weaknesses of our constitution in promoting the public interest. It is my humble submission that if we address this as a fundamental aspect of promotion and protection all the listed attributes then we can get a better perspective of the exercise and maybe formulate better submissions.
Is it in the public good for a particular lineage to exercise public power based purely on birth. I have not heard any submission justify this directly. Rather there have been calls by some for dikgosi to be given more powers. Some have even suggested that dikgosi should have their own ministry. Others have said dikgosi are custodians of culture. I repeat, I have not heard anyone justify how the public good is served by preservation of a culture that allows exercise of public power by virtue of birth.
It is when you look at matters from a public good perspective that you realize that the underlying argument about trimming the president’s power should obtain when we deal with the question of dikgosi. The BDP founding constitution did not use the words “exercise of public power by dikgosi” but instead talked to reducing, I paraphrase, “the arbitrary powers of dikgosi”. Underlying this reduction of power is acknowledgement that there is no justification for exercise of public power based on birth.
What mechanism do we have in place to limit the exercise of public power by dikgosi, or to ensure accountability? We have some statutes which places them under the control of a minister, but I do not think that is enough. We need more. In the old days there were contests within the royal families for who should become kgosi upon the demise of the incumbent. Nowadays only in some villages where there are elections do we see contests. We need to allow contests like in the old days to continue. Of course one of the methods used, murder, should not be allowed.
In the old days sections of the tribe could pull away from a kgosi that they did not approve off. This should be easier to do these days given that no kgosi owns any land, since all tribal land belongs to the land boards. I am of course aware of some submissions where there are calls for return of old tribal boundaries. In my view that can be done but we should not be denied the old right to breakaway from a kgosi we do not approve of. The tribal boundary will after all be just a geographic descriptor.
A look at our constitution will show that from an exercise of public power perspective it does not fare any better than exercise of public power based on birth. The only difference is that it allows for the voting age members of the public to, once every five years, legitimize being alienated from having any control over exercise of public power. I am not aware of any provision of the constitution that ensures participation of the voting public in the exercise of public power in between elections.
The representative democracy process is basically a process for alienating the people from exercise of public power. The original justification for representation was that the voting public could not converge in one place like in the old days when people lived in city states where people could converge at one place and make themselves heard. One wonders why with modern technology that allows people in disparate locations to have a meeting, why our constitution cannot provide for annual online meetings for the people to be heard, as a way to enable them to have a say in the exercise of public power.
I think proponents of accountability miss the essence of public power and interest. Accountability is historical in the sense that it occurs after the event. A more progressive arrangement is one which allows consensus to be real time. Those better informed than me on the concept of blockchain or distributed ledgers are best placed to propose how to use these technologies to ensure participatory democracy, and consensus assurance systems that will allow greater participation in the exercise of public power and promote transparency.
There are also practitioners in the field of risk management. Why can we not incorporate their knowledge at a constitutional level to ensure that the very questions that we are being asked to give opinions on are taken care of from a risk perspective? Surely there are inherent risks in giving any person discretionary power over exercise of public power. Their tools of the trade can form part of our constitutional processes and mechanisms to ensure promotion of the issues raised in the commission of enquiry. Why should assessment of performance be determined by a vote at the polls only? Our children undergo continuous assessment during the academic year. Professional assessors, and those qualified in monitoring and assessment can give advice.
We may also look at the use of probability tools at a constitutional level to determine how best to protect and promote peoples’ rights. For example in a situation such as what obtains where huge fines are imposed for smuggling vegetables into the country, there is a probability that corruption will increase because the enforcer will be given power to sell to the smuggler. This suggests that we cannot have general statements like “parliament shall have power to make laws for the peace, order and good government of Botswana” We have to define what peace, order and good government are.
I have had the good luck to see two online presentations showing how wide democracy contributed Norway being an economic powerhouse, where citizens pay high taxes and do not worry about hospital bills Apparently wide participatory democracy was entrenched in that country long before the discovery of the oil, and the establishment formulation of a sovereign wealth fund, and its management, drew a lot from the lessons learnt in the practice of democracy as inclusively as possible.
We claim to have democratic roots that precede our republican status. We claim that the kgotla system is democratic and in the same breath state that the kgosi makes decisions after consulting the royal uncles, not the tribe. This negative attribute obtains in our current republican setup. We elect members of parliament who then make decisions without our input. The only difference is that under hereditary bogosi we have no say in the rise to power of the kgosi. Both systems exclude wide participation of the people in the exercise of public power.
If dikgosi want a ministry of bogosi, I propose a ministry of commoners. Interestingly being born is the common denominator of all human beings, suggesting any difference is a social construct. We can always de-construct. Maybe we should have a rotating bogosi, five years for a hereditary kgosi, five years for a commoner kgosi.
We should not list tribes in the constitution. Such listing detracts from nation building, and also robs us of the right to create new tribes. We should just treat them as groups. We cannot say we are promoting people’s rights when we deny them a right that they have had since the dawn of mankind. The right to form groups. Some may of course wish to retain their labels and customs. They can label themselves tribes if they want, but they should not keep others captive.
