Wednesday, September 23, 2020

Cabinet scores own goals during state of emergency

When the Member of Parliament for Mahalapye East, Yandani Boko, proposed a motion dealing with Gender Based Violence, I do not believe he foresaw the significance of the outcome that the Cabinet of the Republic of Botswana will give him as a present. In fact he is said to have withdrawn the motion, and a lot of commentators have reacted with disappointment at the proposal that was finally agreed by parliament; that an inter-ministerial task team be assembled to look into the issue.

The main bone of contention was that a Commission of Enquiry would be headed by a judge or former judge, and will have terms of reference that would ensure that the greatest number of stakeholders will be allowed to have an input. I will below argue that from a constitutional point of view cabinet has presented parliament with a rare gift, that of allowing parliament to have control over those ministers who will form the inter- ministerial task team.

A lot of commentators have in dealing with the executive power of the president of Botswana focused attention on Sections 47(1) and 47(2) of the constitution. Very little attention has been given to Section 47(3) of the constitution, which empowers parliament to confer functions on any person or authority other than the president. In my view the resolution of parliament to establish a ministerial committee to look into the issue of gender based violence falls squarely within the ambit of this provision of our constitution.

Now because the inter-ministerial team will not be acting within the ambit of Sections 47(1) and 47(2) the president of Botswana will not have any power to direct these ministers since they will not be acting in terms of Section 50, which gives the president power to direct ministers for discharge of the business of government. In fact should the president purport to direct any minister as to what to do in discharge of the mandate given by parliament then the president will be in breach of our constitution.

 We effectively have a situation where parliament has control over a section of the cabinet to the exclusion of the president. He may of course try to counter this by becoming a member of the ministerial committee, with the hope that he may exert influence over this committee, but this will effectively place him under the control of parliament as regards the issue of gender based violence, since as the appointing authority of this inter-ministerial committee parliament retains the right to direct the committee. In fact it may prove to be risky for the president to become a member of the ministerial committee, for a situation may arise where parliament decides to dismiss him from the committee. 

Based on the above I believe the young man has managed to make cabinet score an own goal, for parliament now has some control over cabinet on an issue that is of national importance. Cabinet in its haste to seek to control the narrative has placed itself in a difficult position where it now serves two masters. Had the ruling party agreed to the establishment of a presidential commission of enquiry then the executive would have been in control of the narrative, now it finds itself pitting its president against parliament in so far as the issue of gender based violence is concerned. Also interesting is that the life span of the committee is to my knowledge not established, meaning parliament can keep it alive for so long as it wants whilst a commission would have had a fixed lifespan. I am not aware of any process for stopping discharge of a function under Section 47(3) that will not embarrass the executive should the executive find the situation unbearable. After all parliament as appointing authority may asking for updates as to progress, and give instructions as to who to consult, and what areas to look at.

The beauty about exercise of power under Section 47(3) is that it does not require laws to be made. This has the effect of denying the president power to veto parliament’s appointment of cabinet or any other person. Section 47(3) is an equalizer, a brilliant provision which in the hands of a knowledgeable parliament can ensure competition within the public space for better service of our people. If a department does not perform and the president for whatever reason does not act, then Section 47(3) allows parliament to give that function to any other person.

In the old days of factions that bedeviled the BDP during the Rre Mogae, Rre Kedikilwe and Rre Kwelagobe era I raised this power of parliament, in a small piece published in one of the local papers, suggesting that Section 47(3) allowed parliament to establish a parallel executive. I believe it was in reaction to this that Rre Mogae increased the size of the cabinet with a view to making it difficult for the Barata Phati faction to use this power of parliament.

I believe that had the current government tapped into the institutional memory of the old guard like Rre Mogae, Rre Kedikilwe and Rre Kwelagobe cabinet would not have placed itself in this difficult situation. By the way I am not a great fan of all these gentlemen, I believe they cost us a valuable opportunity in so far as citizen economic empowerment is concerned. We engaged with them and they were just not interested or seemed not to understand what we were talking about. They cost us a minimum of twenty years with their intransigence, and failure to grasp what nationhood was about.

The floor crossing bill is also very interesting in some respects. I believe that there are at least 9 constituencies in the south of the country that the BDP will not lightly want to have bye election for parliament any time soon. I just do not see BDP looking for election in all Gaborone constituencies, Mogoditshane, Tlokweng, Lobatse, Kgatleng West and Kanye South. I use the number 9 because that is what the opposition needs to get a majority in parliament.

Under these circumstances the floor crossing bill only strengthens the hands of the BDP members of parliament against the party and Rre Masisi in particular. I am left wondering as to why cabinet proposed this bill at this point in time when cabinet has to my knowledge three qualified lawyers in Rre Kgafela, Rre Mthimkhuilu, Mme Dow and the Attorney General. I believe the BDP itself has access to very capable legal brains.

The floor crossing bill is also in my view a motion of no confidence in Rre Masisi, sponsored by cabinet itself. After all the import of the bill is to say to a BDP member of parliament “trust Rre Masisi not to make life unbearable for you within the BDP, but if things get really bad you have the option of keeping quiet or resigning from the party and losing your seat” I believe these days members of parliament have access to independent legal advice, and they will have been advised that this floor crossing law may greatly disadvantage them.

They will also have been made aware of possibilities to cash in on this law. Imagine the situation of a member of parliament from a swing constituency that is likely to be won by the opposition in 2024. If approached by the opposition that they pay him the P3 million that he will make in three years now I think a business minded member of parliament will agree to cash in the lump sum, by crossing the floor, precipitating a bye election that the opposition will likely win.

The issue of party caucus also needs to be looked at in relation to our constitution. Parliament is an institution that is a creature of the constitution, with a defined mandate. I do not believe that parliament can waive its constitutional power through the idea that members of parliament belong to a particular party. When parliament makes law there is no legal expectation that members of parliament may be forced by their parties to vote in a particular way. This is because if this is allowed then the power to make law would belong to political parties and not parliament. Section 86 of the constitution makes parliament’s power to make law subject to the constitution itself. I challenge anyone to construct a provision that allows political parties to add to this section.

There is a principle of law that says that one may waive a provision of the law that is intended for their own benefit. The power to make law is intended to serve a particular purpose that no political party can claim. It may be possible for a political party to discipline a member of parliament where such member votes against the party wishes where such vote involves motions, but in my view no political party can lawfully take disciplinary action against a member of parliament where such member votes against the party when parliament is making law. Any political party that purports to have power to discipline a member of parliament who votes against the position of the party when parliament makes law would be violating our constitution. I will even say such a party is guilty of treason.

Political parties are mere societies, and even though societies make rules for themselves in enjoyment of freedom of association, such capacity does not include power to add limitations over and above those stated in the constitution. If political parties want to add to the limitations in the constitution they should amend the constitution. Otherwise they should let members of parliament vote as they deem fit in the law making process.

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The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.