Wednesday, May 12, 2021

Constitutional chaos: Botswana without a president for a day

Botswana did not have a president between March 31st and April 1st because of confusion over clauses of the Constitution governing the presidential succession.

Apparently, the understanding at the government enclave was that former President Festus Mogae ceased being president on March 31st and was not accorded Presidential status on the morning of April 1st before Lt Gen Ian Khama was sworn in as president.
In a cautious statement to the Sunday Standard, former President Festus Mogae’s Special Advisor, Sidney Pilane, said the Attorney General “might wish to advert her mind” to the confusion “in order to inform the future.”

States Pilane: “I noticed on the 1st of April this year that there seemed to be an assumption that President Mogae had ceased to hold office as President at midnight on 31st March 2008. He did not come as, was not received as, nor was he addressed as the President on the morning of 1st April.”

Pilane further states that “it is clear that the succeeding Vice President assumes office upon subscribing the oath of office, but it is unclear when precisely the retiring President ceases to hold office in the terms of Section 35(1). This matter may require reflection and various permutations considered. In the end, it is best if there is no gap at all, or if unavoidable, the briefest gap between the time when the retiring President ceases to hold office and the time when the succeeding Vice President assumes office as President.”
In confusion over clauses of the Constitution governing the presidential succession, Pilane explained that there was a mistake when amending the Constitution to introduce automatic succession in that “while Section 35(1) was amended properly, an omission was made in not excluding the application of Section 35(3) to Section 35(1) (as amended). Whereas before the amendment of Section 35(1) to make provision for automatic succession the provisions of Section 35(3) properly applied to both Sections 35(1) and 35(2), that amendment necessarily excluded the application of Section 35(3) to the amended Section 35(1). What ought to have been done was that, in addition to amending section 35(1), the number and word “…(1) or…” at Section 35(3) should have been deleted. The resulting Section 35(3) would have read:
“Any person performing the functions of the office of President by virtue of subsection (2) of this section shall not exercise the powers of the President to revoke the appointment of (the) Vice President or to dissolve Parliament”.
It is the reference to subsection (1) of Section 35 at Section 35(3) that occasions the matter that causes confusion. “That reference should, upon Section 35(1) being amended in 1997 to introduce automatic succession, have been removed.”

Pilane argues that Section 35(1) at Section 35(3) should be disregarded. The “reason is simply this: that the undeniable intention, in amending Section 35(1) to what it is now, was to introduce automatic succession. The amended Section 35(1) could not co-exist with an un-amended Section 35(3), for then automatic succession would not have been achieved. It cannot have been, nor was it the intention, to make the amended Section 35(1) subject to Section 35(3). The intention of the amendment made to Section 35(1) was solely and conclusively to enable the Vice President, without more, to assume all the functions and powers of the office of President upon the President dying, resigning, or ceasing to hold the office of president.

There can, if this were indeed the intention, have been no intention to retain the reference to Section 35(1) at Section 35(3). Accordingly, that the reference to Section 35(1) at section 35(3) was unintended, and therefore its retention a mistake, is plain. The removal of the reference was an un-intended omission, an oversight.”

“Although Section 35(3) should be read without the reference to Section 35(1), it would be tidier if the Attorney General would consider acting to ensure that the number and word “…(1) or…” at section 35(3) are removed. An amendment of the Constitution to do this is not necessary. The Attorney General, in her capacity as the Law Revision Commissioner ex officio under the Revision of the Laws Act, Cap. 01:03, may do so under the terms of Section 12 of that Act. That provision goes:
“ The Commissioner may, at any time, by order, rectify any clerical or printing error appearing in the Laws of Botswana, or rectify in a manner not inconsistent with the powers of revision conferred by this Act any other error so appearing, or any other matter or omission requiring revision.”

The removal of the reference to Section 35(1) (as amended) from Section 35(3) is an amendment consequential upon the amendment of Section 35(1). The removal of that reference being a consequential amendment, it can be done by the Law Revision Commissioner. This she can do at any time. But of course, whether she does anything and, if so what, has to be a matter for the Attorney General.
Finally in this regard, may there be no finger-pointing. I believe that the amendment bill must, in accordance with Government practice as I understand it, have been circulated in all the Ministries before going to Cabinet for approval. Cabinet considered and approved the Bill. Thereafter, it was published in the Government Gazette for the public to examine and comment to their Members of Parliament or other authority. The Bill was also debated at length in Parliament. Accordingly, we all missed the oversight and it cannot be justified to seek a scapegoat.


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