Monday, September 21, 2020

Constitutional review: a cacophony of confused voices?

When you listen to their call; to their plea and demands, you would confuse them for a single team, perhaps a single choir. You would imagine them to be men and women who are aiming and fighting for a single goal. But there is nothing much that binds them together except the central demand for change. They are all asking for the constitution to be changed.

Some use even stronger terms; they argue that it must be overhauled. But before we get ahead of ourselves, we must question and probe these social voices. It is clear they are singing a song. But is it the same some? Are they in synch? Put differently, are they asking for the same thing? They all certainly wish for the same constitution to be changed, but are they asking for it to be changed in the same places?

More than anybody else one individual who has been vocal about constitutional change has been the kgosi in Mochudi, Kgosi Kgafela. Or is he still a kgosi after he has suffered derecognition from the government? His central argument is that the constitution as it stands is a fraud. It was not a product of broad consultative process. Batswana ga ba a rerisiwa ka molaomotheo.

If you are not paying attention you may mistake Kgafela for a man who likes things to be done properly through consultation. But Kgafela is not so much concerned about consultation for its sake; but consultation as it relates to the powers of dikgosi. He is concerned that the dikgosi’s powers have been taken away; dikgosi through the Botswana constitution have been disempowered.

He therefore wishes that this fraudulent constitution be set aside by the courts because it is a product of a fraudulent process. The irony of the matter though is that Kgafela has appealed to the colonial courts with the colonial laws which in his own words are a product of this very fraudulent constitution.

If he succeeds in the fraudulent courts, his victory would have been under a fraudulent constitution and therefore hollow! It is also not clear what setting aside the constitution means. Will the state remain in limbo with no constitutional protection? While Kgafela wishes the constitution to be set aside so the powers of the dikgosi could return to them, his views are not shared by many who wish to see constitutional reforms.

There are many who wish for constitutional reforms who don’t wish to see the powers of dikgosi increased. Actually they want the dikgosi to be stripped off their powers. Their argument is fairly simple. They are of the view that the role of dikgosi should be that of cultural and moral custodians.

They argue that the dikgosi are not trained to dispense justice and therefore should not preside over customary cases. They argue that the customary court denies an individual of legal representation. They also argue that the kgosi has assumed his position by accident of birth and that in a republic his role must be purely ceremonial. Obviously those who hold these views wish for constitutional review but wish for the dissolution of Ntlo ya Dikgosi and its place they wish to have a House of Representatives with representatives from civil society, minority groups, and disadvantaged members of the society.

They see the kgosi as a relic of the past; a man mostly, whose ancestors were war heroes, but who now enjoys fame and fortune on the basis of who his parents were. His is a position acquired by an accident of birth. So this modernists, question why the kgosi should carry so much powers and therefore seek a constitutional review to fix this anomaly.

On another side is members of minority groups who when they hear the call for constitutional review rub their hands in glee and grin. They say: “We have asked for this for a very long time and we haven’t been heard. The time has come to change the constitution, in particular section 77, 78 and 79”.
They argue not only for this change. They want the constitution to recognize their languages and for it to give their languages official status. They want their languages taught in schools and for their children to be taught in their mother tongue. What they are asking for is not what Kgafela is pleading for, neither is it identical with what the modernists require and yet it is still constitution review. At another level what they want clashes with what Kgafela wants.

Then there are the homosexuals and prostitutes. They also want constitutional review. They want the constitution to recognise same sex relationships. They argue that what happens in one’s bedroom shouldn’t be a state matter.

Homosexuality should therefore be decriminalized. But if it is indeed private, why should there be concern about the law? Further, prostitutes and their supporters wish the constitution to be revised so that the law would protect and legalise their practise. Others have even gone further and argued that prostitution would be ideal for our undiversified economy. Now there are traditionalists who though wish to have the constitution revised do not wish that homosexuality and prostitution should be legalized.

Some don’t care about what happens. What is actually clear is that though the call for constitutional review increases, those who make the call do not form a symphony; they come across as a cacophony of voices; all driven by a need for change, but not seeking the same change in some cases opposed to the change that is sort by others.

What is clear is that many would be disappointed and angered by the constitutional review, because it would try to please everyone and in the process make everyone mad.

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