The Constitutional Review process currently underway albeit under protest from some quarters for various reasons will remain a topical issue during and beyond its completion. This because of its significance and importance to the national discourse in all its manifestations. As the process runs its course, new interesting developments emerge. One such recent development is the statement made in parliament by the Minister of Presidential Affairs, Governance and Public Administration Rre Kabo Morwaeng in which he outlined Constitutional Review steps to be undertaken during the process. These will include inter alia submissions of the Constitutional Review Commission to the President for his sole attention and determination; submission of what would have been determined by the President to the Attorney General to draft the Constitutional Review Bill; such Bill to be published to solicit further comments/inputs from members of the public and to allow Members of Parliament to consult their constituents; the Bill to be tabled before parliament in accordance with Section 86 of the Constitution; Bill to be further referred to Ntlo ya Dikgosi (House of Traditional leaders); ‘If it is necessary to amend entrenched provisions of the Constitution, it will then be necessary to conduct a referendum’. Simply put in my understanding, a referendum will only be conducted if there is an amendment to entrenched provisions. It therefore stands to reason the broader population will only have an input during Kgotla meetings and nothing further thereafter because such input will not be available unless and until there is a referendum.
Before dealing with my argument that the Constitution is more likely to be reviewed and amended by a simple BDP parliamentary majority, I wish to address the issue of entrenched provisions of the Constitution which provisions and should they be amended, could lead to a referendum. Entrenched provisions are defined by www.oxfordreference.com as ‘rights which have a special status, so that they cannot be removed or curtailed by the ordinary process of changing the law’. That is if I interpret this definition correctly, entrenched provisions of the Constitution cannot be changed by MPs debating a Bill and voting either Yes or No if there is no consensus. Unless I may have missed it and my apologies for doing so, I have not heard of any contribution in the ongoing consultations by the Commission where someone has proposed amendments to entrenched provisions. In the event there is a desire to disturb in some way the entrenched provisions, which will those be? Let me assume for argument’s sake that some Batswana propose for the abolition of the death penalty. Will the President allow this issue to see the light of day given he is the only one who will determine and decide what he picks and implements from the recommendations of the Commission without the slightest fear of being asked hard and difficult questions with respect to what he decides to pick or ignore therefrom. To a large extent, his own personal position on the death sentence will likely influence him whether or not to include it in the Bill to parliament. In the event there is no proposition to amend entrenched provisions, there will be no need to hold a referendum whereupon other proposed amendments contained in the Bill will require a simple parliamentary majority which the BDP is currently endowed with.
Let me revert back to why I strongly argue the Constitution is more likely to be reviewed and amended by a simple parliamentary majority. The starting point should be to say, the Constitutional Review process is essentially the President’s ably complemented by his political party BDP. Just like other many amendments to the Constitution I have witnessed which required only the simple parliamentary majority, whatever the contemplated Constitutional Review Bill will contain will be rubber stamped by the President’s majority in parliament. Notable among the many outstanding amendments which attracted a lot of debate from the wider public is the floor crossing Bill which was quickly passed into law and quickly signed by the President. The fact that the President chose the Commission of Inquiry process through which he and he alone calls all the shots is good enough reason to argue and conclude all his wishes will prevail when all is said and done. The BDP majority in parliament has not disappointed the President in the past on his wishes and nothing suggests it will be any different with the Bill to amend the Constitution.
From the point the Bill enters parliament, the Constitutional Review process will become academic because it will be influenced and determined by the BDP majority. What fundamental purpose after the President would have received the Commission’s report will be served by Members of Parliament going to consult their constituents? There will indeed be comments/inputs from the constituents. But of what material significance in the bigger scheme of things to the overall intention of the Bill will they be? Your guess is as good as mine. While it is almost predictable BDP Members of Parliament will be all out to sell the Bill to their constituents in support of the President, it will be interesting what Opposition Members of Parliament will be saying about the Bill and by extension the Constitutional Review process given that they have already announced they will not be taking part in it. In other words, they will boycott it or continue to disparage it particularly with respect to the process of initiating it from the word go. In the event a referendum is undertaken, it will also be interesting to watch how they (Opposition MPs) will ask their constituents to vote or boycott.
There has been a call from some quarters to reduce the powers of the President of the Republic of Botswana as provided for in the Constitution. One such is Section 41 (Protection of President in respect of legal proceedings) wherein any person holding the position of President is immune from any legal proceedings whether civil or criminal against them while in office. I have always felt and still do to this day that in this day and age, Section 41 has long reached its sell by date. In the spirit of having accountable, transparent, morally and ethically upright leadership, the President can no longer be permitted to be above the law. It is an insult to progressive democracy I firmly believe. I have noticed that this issue has been brought forward by some people during the Commission rolling tours. Will BDP MPs allow tempering with Section 41 should it appear in the Constitutional Review Bill? Very unlikely if their conduct and attitude to issues affecting the Office of the President are anything to go by.
In the likely event that no Motswana wishes for the disturbance to the entrenched provisions of the Constitution, it remains a likely event the Constitution will, when all is said and done, be reviewed and amended in parliament by the BDP MPs through a simple majority. Opposition MPs have tried to bring their reservations without success on the route the President has chosen for the process to unfold. Nothing suggests they will vote for the Bill given their reservations hence my belief that it will be an all BDP affair in parliament to pass the Constitutional Review Bill. In view of the nature of the Commission of Inquiry with respect to the Commission on the Review of the Constitution, public participation is merely a smokescreen to give it some legitimacy and credibility. Overall, it is the President’s Review of the Constitution given the route he has chosen while at the same time shutting out voices of critical stakeholders. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe’. Exercise extreme care since Covid-19 pandemic is still very much in our midst.
