Thursday, October 1, 2020

Constitutional “mistake” disrupts Khama’s presidential succession

When Vice President Ian Khama on Tuesday ends his oath of office with “so help me God”, it will be more than just a formality. The new president will need divine help to ensure the legitimacy of his presidency.

A “mistake” in the drafting of amendments to the Botswana Constitution to ensure automatic presidential succession has already raised doubts that the Constitution does not grant Khama automatic succession when current President Festus Mogae steps down on Tuesday.

Officials at the government enclave and some private attorneys were this week mulling over what promises to be a big debate on whether the Botswana Constitution guarantees presidential automatic succession.

The Botswana Constitution was amended in 1997 to ensure that the Vice President would automatically take over from the President in the event that the president either retires or can not serve as president. There is, however, a growing body of legal opinion arguing that the Constitutional amendments fell short of ensuring automatic presidential succession. According to the legal opinion, the incoming president will only have the powers of an acting president until he is elected by Parliament within seven days of the current president ceasing to be president. This opens the presidential race to anyone even if they are not Vice President or members of Parliament and effectively means there is no automatic presidential succession.

Legal Advisor at the Office of the President, Sidney Pilane, played down what appears to be a shortcoming in the Constitution as “a mistake in the drafting of the Constitutional amendments”. He insists that the mistake is inconsequential. Pilane promised to write a full analysis in the next edition of The Sunday Standard.

Minister of Presidential Affairs, Phandu Skelemani, on the other hand maintained that, “the intention of Parliament was to give the president full powers, no half measures. The debate is whether that has been achieved.” Skelemani, however, would not be drawn into discussing whether the Constitutional amendments have been able to give the new president full presidential powers, saying, “the government’s position has to be obtained” from the Attorney General.

Attorney General, Dr Athaliah Molokomme, has promised to write a paper on the government’s position in the next edition of Sunday Standard.

According to legal opinion by Lediretse Molake, “in terms of Section 35(1) of the Constitution, the Vice President shall become president when the current president’s term comes to an end.

However, a closer look at our Constitution suggests that rather than become president, the vice president will merely exercise the functions of the Office of the President. Section 35(3) states that the person who performs the functions of the office of the president by virtue of Section 35(1) shall not have the power to dissolve Parliament.

This position is supported by a number of private lawyers, among them Dick Bayford of Bayford and Associates.

Bayford states that Molake has “rightly highlighted the fact that when the Vice President assumes a presidential vacancy, under Section 35(3), pending the convening of Parliament to elect a president, his powers are limited in that he cannot revoke the appointment of a Vice President or dissolve Parliament.
“However, I entirely break ranks with Molake when he suggests that an option exists in terms of the Constitution either to have until the next general elections a Section 35(1) president (i.e. one who assumes the presidency with limited powers) or Section 35 (4) (one elected by Parliament and endowed with full presidential powers.)

Bayford further states that “one can not phantom a situation in a constitutional democracy that would entrench in the Constitution an uncertainty of such proportions. Constitutions are meant to be prescriptive ÔÇô they provide fundamental law to which adherence is not optional.

“Now that Mogae would be or has already handed in his resignation, the right thing for people at the Government Enclave to do is to ensure that Section 35 (4) is fully complied with. In this connection, Parliament must convene within seven days of such resignation to elect a new president. In the meanwhile, during the seven day window, Khama, as Vice President will assume the functions of President, albeit with limited powers.

Bayford further states: It is interesting to note that in terms of the Constitution, any Botswana citizen, who qualifies to be President, is entitled to contest the elections, provided that, he secures the support of at least ten members of Parliament. Such candidate need not necessarily be a sitting member of Parliament. In addition, the ballot to be taken in parliament would be secret, thus obviating any fear for reprisals and political witch hunting after the fact.”

The Botswana opposition parties have 11 MPs and there is speculation that they may force a presidential vote in parliament and sponsor a BDP candidate to challenge Khama for the presidency.

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