Saturday, May 28, 2022

Dingake ÔÇô Is this Justice for all?

Delays in issuing national identity cards (Omang) pose a serious threat to democracy and could damage Botswana’s international reputation. Civil servants should be allowed to run for political office. Disqualifying people who acquired citizenship by registration from running for president violates the principle of equality which is enshrined in Botswana’s constitution. Botswana’s president hoards so much power that he is more powerful than not just parliament (“which is not well-placed to hold the president accountable”) but Batswana themselves. For that reason there should be direct election of the president. It is likely that the president can fix an election date in order to “enhance the prospect of his party winning.” An Electoral Court with the same status as the High Court should be established because the latter is “ill-suited to handle electoral disputes.” The constitution should allow for the review of proceedings of the Delimitation Commission, which Commission must be appointed by the Judicial Services Commission (JSC) and subsumed under the Independent Electoral Commission (IEC). Urban centres are underrepresented in Parliament because of gerrymandering – redrawing the political map to give the ruling party an edge over the opposition – rampant.

Those are just some of the arguments that Dr. Key Dingake makes in his new book, “Constitutionalism and the Rule of Law in Botswana.”

Not too long ago, it took two weeks to process an Omang card, nowadays it takes months. In his book, Dingake cites an example of what happened in Kenya in 1992 – when millions of voters were disenfranchised by the delay in issuing national identity cards – to illustrate what sort of fire the Omang people are playing with. The delays in Kenya were reason enough for some international election observers to not only question the fairness of the electoral process but to also tell the entire world about it.

Dingake says that in Botswana, these delays have resulted in the disenfranchisement of many voters and suggests that it may be desirable for the Ministry of Labour and Home Affairs to work in close collaboration with the IEC.

“An important feature of the registration process is the need to identify voters accurately. It is therefore incumbent upon the electoral commission and government to ensure that eligible voters are issued with identity documents in a timely manner.”

In the chapter that deals with this point, Dingake, a legal ninja who spent a good chunk of his career in both the courtroom and lecture room, thematically breaks down the right-to-vote principle, lavishing authoritative treatment on the Electoral Act as he points out its deficiencies and proposes a package of reforms that can be adopted to enhance the quality of Botswana’s electoral democracy.

In terms of the Electoral Act, people who are “under any allegiance to a foreign power” don’t qualify to vote. Dingake’s first observation about this provision is that it doesn’t develop facts as to context. He writes: “The problem with this disqualification is that it is not always easy to know that an intending voter is under an allegiance to a foreign power. Further, the provision of the Act as currently worded is vague, because precisely what constitutes allegiance to a foreign power is not defined.”

He also expresses puzzlement that while the Act allows continuous registration, IEC does not actively encourage it.

The law requires parliamentary candidates to speak and read English “well enough to take active part in the proceedings of the Assembly.” With specific regard to this provision, Dingake contends that “to restrict the participation of people in the affairs of their country on the ground of their inability to speak or write English is a violation of basic human rights, in addition to being unfair.” In recognition of Botswana’s multilingual society, he recommends the use of indigenous languages in parliament as a “prerequisite for maximising effectiveness and the democratisation process.”

What will stun many is Dingake’s suggestion that civil servants should run for political office because they are “sufficiently educated to best articulate the problems of the electorate.” By debarring these officers from participating in politics, Dingake says that both the ruling party and the opposition are denied candidates of substance and end up having to make do with retired and mentally exhausted civil servants.

“Ultimately, the country suffers because retired civil servants are unlikely to offer fresh ideas,” he argues in the book.

Among constitutional matters that some want reviewed is the manner in which a president is elected. Noting that the president has all executive powers of government as the power to dissolve parliament that elected him/her, Dingake concludes that an office vested with so much power must be accountable to the people.

“This can be done if the president is elected directly. Botswana’s parliament, which is controlled by the executive, is not well placed to hold the president accountable. The power given to the president places him or her even above the people, since parliament is the repository of the people’s will. The powers of the president are so overwhelming that he or she may refuse to sign legislation. Parliament may not wish to take the president to task for fear that he or she may dissolve it, with the concomitant result that some members of parliament may not make it back to parliament. The net result is a timid parliament that is fearful of a non-elected president.”

If they are pursued to the very final stage, electoral disputes end up at the High Court. Dingake’s contention is that this court is ill-suited to deal with these disputes because “its procedure is cumbersome and bringing proceedings before the High Court is expensive.”

What he suggests as a more ideal alternative is doing what South Africa has – establishing an Election Court that has the same status as the High Court. He suggests further that members of the former be appointed by the JSC (not the president) and that their conditions of service be the same as those of judges of the High Court.

He adds: “Questions may be asked whether these judges would be under-utilised between elections. To take care of this problem, the judges may have to be redeployed between elections. The other option is to appoint such judges only at election time.”

Of the JSC itself, Dingake says that while the body is supposed to be independent, the manner in which it functions undermines such independence.

His views: “… the chairman is the chief justice. The other members are the chairperson of the Public service Commission and one other member who is appointed by the chief justice and the chairman of the Public Service Commission acting together. The chief justice and the chairperson of the Public Service Commission are appointed by the president alone. In the final analysis, it is clear that the president effectively appoints the [JSC], which, in turn, appoints the Delimitation Commission.

“For the delimitation commission to be seen as independent of the ruling party, it must be appointed by the [IEC] or an expanded [JSC] that includes other appropriate persons such as representatives of the law society, the law faculty, the Attorney General’s office and a relevant select committee of parliament.”

As a result of a manipulable Delimitation Commission, Dingake asserts that this has led to gerrymandering – a global-but-named-in-the-United-States practice through which the electoral map is redrawn to favour the ruling party.

“This situation exists in Botswana. According to the 1987 report on constituency grading, in 1986 the four urban parliamentary constituencies (Lobatse, Francistown, Selebi Phikwe and Gaborone) ranged from approximately two times to two and half times larger constituencies with fewer voters. The aforesaid situation has led to the underrepresentation of cities in the National Assembly and, according to Holm, the situation is getting worse,” the books says referring to John Holm who carried out the study in question.

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