In his state of the nation address, His Excellency Dr. E. K.M. Masisi stated “Mister Speaker, the envisaged constitutional review is a delicate and intricate process that requires careful reflection and consideration before it is embarked upon. I wish to emphasize that, as Batswana take part in this important national exercise, they must be free and constructive. However, the process of constitutional review has been delayed largely by the outbreak of COVID-19 pandemic. I will appoint Commissioners to lead the process by mid December this year”
The first issue that immediately strikes me is that of process. Our constitution does not set out how it is to be reviewed. However our constitution sets out the manner of how its provisions can be changed. There are those that require a simple majority of members of parliament and those that require a referendum. If we fail to distinguish between review and change, we may find ourselves in trouble.
The next issue that comes up is whose careful reflection and consideration has to happen before the review process is embarked upon? Is it of His Excellency or that of the nation or a particular section or class of the nation? Given that the nation has not expressed that it has undertaken any careful reflection and consideration and the President is going to appoint Commissioners we are to assume that in the President’s view it is his careful reflection and consideration that has to happen first and has happened.
I have in the past suggested that there was a need to educate our people on the constitution, and what limitations if any, bear upon any contemplated review of the constitution. This goes to what some call “consequence management” My view was, and is we have to have a process and mechanism for dealing with those who will be disappointed by the outcome of the review exercise.
Already some sections of our society have taken deep seated positions regarding who is to be listened to and what the outcome should look like. I have heard words like “peoples constitution” and that politicians should not highjack the process. Some traditional leaders like Kgosikgolo Kgafela has likewise thrown his two pence into the fray. Some trade unions have already invited esteemed jurists like Professor Key Dingake to their seminars, and have formed positions. The opposition has proposed a law governing the process. Some tribes are waiting to secure their seat at the high table of equality. Some have called for inclusion of socio economic rights, which is a matter of content not process.
Given that in law making and changes to some provisions of our constitution, the majority rules, we are already primed for a disputed constitutional change process. I use the words constitutional change deliberately because in his speech our president seemed to hint at a two stage process, the first phase being determination of what process to follow to undertake the review and the review itself being the second phase. If I am correct we may end up with two commissions, one to determine process and another to determine content.
If I were the president this is the process that I would follow, because it presents certain advantages. The first phase allows for management of expectations in a transparent fashion. The second phase allows use of the current constitutional mechanism in a manner that protects the president from being seen to fail to protect the constitution in accordance with his oath of office. If the president is somehow seen to be agreeing with those that say the current constitution is illegitimate then he would find himself in an untenable position of holding office through an illegitimate constitution.
The way the Independent Electoral Commission has interpreted the Electoral Act also presents a problem. In the event that some proposals have to go for a referendum only those who had registered for the last general elections will be eligible to take part. I of course have in the past held the view that our Electoral Act provides for continuous registration of voters. Those who have attained voting age during the review period, and who are denied the right to take part in any referendum will be entitled, in my view, to raise the issue of legitimacy of the review in so far as it relates to them.
I am in agreement with His Excellency that the review requires careful reflection and consideration. The nation has to be taken into confidence in this regard. It is not enough to caution people about the need to preserve peace when as far as some of them are concerned that peace is maintained at their cost. Surely careful reflection and consideration is not exercise of executive power of Botswana. This is very much so given that review of the constitution is not an executive function. The question that arises is what power is the president exercising by allowing the review process to go ahead? Will we only know this in December?
The president goes on to caution us to be free and constructive. This is a statement that we all know is tinged with threats. Why do Batswana have to be free? If they are free they can speak their minds. Why do Batswana have to be constructive? This is the difficult one, for it raises barriers that are not defined, and is in my view unnecessary. How often has this issue of constructive contribution been used to stifle free exchange of views?
We read on a regular basis of people who we expect to be free, talking of fear of reprisals, what more of ordinary Batswana? The president controls executive power, the army, the police, the intelligence services, and the public service, yet he does not come out and say “I will use all instruments at my disposal to ensure that Batswana take part in the review process freely, and that no one should fear any reprisals for expressing their view during and after the review process?” For me if our president does not come out and assure our citizens that they will be secure during this process, then we have a problem, for we have every reason to believe that the caution to be constructive has the full backing of executive power, army, police, intelligence services and the public service.
Will the review be viewed as a political process where public servants will be excluded, and only their union leaders heard? Will dikgosi who happen to be public servants be free to express their ideas? The president has already suggested that bogosi needs looking at. I have in the past suggested that tribes be looked at just like voluntary societies, and if they want to subject themselves to being ruled by people who are born into position, they be allowed to do so.
It will be very interesting to see how our president navigates this one. Supposing the desire of some to limit the power of the president comes along. Will he agree to this and act on it expeditiously or wait to win elections in 2024 then hang in there with maximum power until April 2023? I think we have a precedent, though going in a different direction. The DISS Act was passed before Rre Khama became president. It only became effective after he became president. It is possible Rre Mogae heard the voices of those who were against it, and therefore did not want it operational under his watch, leaving it for Rre Khama.
Most importantly how are we going to reduce the power of the majority to dictate the outcome of the review exercise? All changes either by referendum or by parliament will be determined by the majority. Who will dictate how the referendum questions are framed? It is indeed a delicate exercise we are embarking upon, I only hope our dislike for the truth and open debate does not rear its ugly face. We need more people to be able to express their views before the process begins otherwise we are setting ourselves up for unnecessary disputes. It is in my view better to thrash out our views and differences and work out how to resolve them at the process stage.
I believe the opposition in calling for a law to regulate the process displayed a remarkable level of naivety. This is because it is the majority in parliament that will determine the content of any such law. The best the opposition can hope for is to see when any proposals that limit the power of the president or empower parliament over the executive will be passed by parliament. If they are passed before 2024 it will indicate the incumbent does not believe he is going to win, hence the need to weaken any incoming opposition president. If he wins in 2024, the issue will be how keen he is to disempower a successor who might be called upon to protect him post 2028.