I have read the views of some of our prominent lawyers, and some political parties, on the Presidential Commission of Inquiry on the review and amendment of our constitution, and with the greatest respect consider their views to be distractions from the real issues that we have to consider. I use the words review and amendment deliberately because the terms of reference of the commission uses those two terms, and they obviously cannot mean the same thing.
The question that arises is why have a Presidential Commission of Inquiry to get opinions from Batswana on the issues set out in the terms of reference? On the surface this seems like a perfectly fine way to handle things. The problem comes out when one looks at Commission of Inquiry Act. The Commission of Inquiry Act empowers the president to establish a commission where in his view such is for public welfare. What public welfare issue is involved in this instant?
The terms of reference may on a generous reading point to a public welfare issue. I believe His Excellency may be given the benefit of doubt in this regard. The real issue becomes the role that the commission of inquiry has to play. It is supposed, I summarize, to get views from Batswana, assess the adequacy of the constitution, assess concerns of Batswana on review and amendment of the constitution, and conduct inquiries and obtain information from sources the commission considers relevant and make recommendations based on these, on the review and amendment of the constitution.
The above directions are covered by Section 8 of the Commission of Inquiry Act. The problem as I see it comes from the power of the commission to summon witnesses to get evidence. This is covered under Sections 11, 12 and 13 of the Act. This is the real purpose of commissions of inquiry, to get evidence. As a rule views are not evidence of anything, unless if they are expert opinion. This suggests that paragraph 4(a) talking to views of Batswana on the strength of the constitution leaves the commissioners without a proper subject of inquiry as required by Section 3 of the Commission of Inquiry Act.
The above suggests that even if Batswana have any views on the constitution, and the commission agrees with them in the form of recommendations for review and amendment of the constitution, the same can be discounted on the basis that such views are not evidence of anything, the process of inquiry is then reduced to an opinion poll. Further by empowering the commission to obtain information from sources it considers relevant means the commission becomes evidence leader and judge, yet we do not know what standards they are going to apply or tools for determining what is relevant. The only thing we know is they will decide by voting or consensus.
As a general rule in legislative review there is a governance framework that ensures proper consideration of all issues, identification of stakeholders and ensuring that their views are taken on board, including regulatory impact assessment of proposed changes. A commission of inquiry lacks these key aspects, and in my view it does not look good to have a review of the constitution of a democratic nation that lacks a governance framework.
The use of the commission of inquiry also presents a problem in that political parties are not obliged to participate. The commission of inquiry cannot summon political parties to come and present evidence, even though it has power to subpoena witnesses. Of course they can be invited, but what if they refuse? I can also imagine them summoning an expert on constitutions. I doubt if this will stand up to a court challenge if the expert refuses to testify. This exposes the limitation of the commission of inquiry in exercise of its key statutory powers in so far as the politics of constitutional review and amendment are concerned.
As a general rule constitutional review and amendment has serious political interest issues. Where political formations are excluded by choosing to exercise a statutory power, they are given a chance to question the political legitimacy of the process. We have a precedent in the negotiations for our independence. Political formations and tribal leaders were involved from the word go even though some disengaged at a later stage. If the colonial government had chosen to exercise statutory power where political formations and tribal leaders were not involved, but only the people of Bechuanaland, then it is highly unlikely that we would have avoided a war for independence just like other countries around us.
The use of a commission of inquiry creates a sieve of unknown characteristics. We do not know the political ideologies or values of the commissioners. We of course know that Section 9 of the Commission of Inquiry Act suggests that decisions will be made by voting. Even if the decisions are made by consensus, given that we have no knowledge of what the individual political ideologies and values of the commissioners are, political party formations may be inclined to refuse to subject their ideological positions to the personal views of the commissioners.
I find the conduct of the opposition parties also telling; that they are executive power centered or focused. That is why their attack is on the exercise of a statutory power, rather than the fact that as stakeholders, representing a certain proportion of the electorate and the population in the political economy of the country, they should be involved as of right in any political settlement, without having their ideologies and values subject to the vote of an unelected group of people, that have no claim to representing any portion of the electorate or people of this country or their values.
Perhaps because only the BPP, on the opposition side, was involved in the independence constitution negotiations, but has to all intents and purposes disappeared from the political arena, there has been loss of institutional memory on the part of the opposition, as to what is really involved in constitutional review and amendment. Though obviously highly educated, the current leadership of the opposition seems to me to be too focused on acquiring power as currently constituted, where the executive is dominant, to the extent that political ideology and values can be forgotten for the time being, such that they fail to appreciate that constitutional review is a political settlement process.
Even the BDP which was involved in the independence constitution negotiations is reported to have formed a task force that is going to represent it in the review process. Is the BDP ready and willing to subject its views to vetting by the commissioners? It seems the BDP like the BPP, has forgotten that constitutions are political settlements. The BDP can afford to take this route, after all it has a fall- back position. It can in the event the commission comes up with recommendations it does not support, rely on its majority in parliament to resist such recommendations.
The position taken by the trade union movement is also likely to present problems. They also have no knowledge of the worker interest positions of the commissioners, and are unlikely to want to have their position vetted by the vote or consensus of the commissioners. How will they justify participation in the process even if they are invited? I believe the commission cannot subpoena them to give evidence, suggesting that there is an inherent limitation in the chosen process. There is power to subpoena witnesses but it cannot be used because that would send bad signals, as participation in a constitutional review must be voluntary.
Given what I state above relative to political formations and trade unions, it is still arguable that the commission presents individuals an opportunity to express themselves without being dominated by political party ideologues and leaders. Therefore those who prize individual autonomy over groups will be welcoming of a structure and process that allows the individual to be heard. For them this is the public welfare aspect that grounds the commission and use of statutory power by His Excellency the President. The matter of the decision making process and values of the commissioners may be of little importance to them.
I believe the drafter of the terms of reference was very much alert to what I state above, and created a situation that one hopes the President and the commissioners are alive to, that no matter the status of the President or how highly regarded the commissioners may be, the commission is going to make recommendations to the President and to no one else, and that the process has serious inherent limitations. That is why the drafter of the terms of reference hints at a future review of the constitution post the commission of inquiry. In a way the terms of reference and the absence of use of the powers of commission of inquiry, to subpoena witnesses to give evidence, have tied the hands of the commission to being an opinion poll to confirm what areas to look at in a future review.
