Like most people I was baffled by the conduct of the opposition in parliament. I have however had occasion to consider the events surrounding the position of Leader of the Opposition in parliament, and have come to the conclusion that perhaps we have been too quick to condemn the opposition, and that it is the BDP as the majority party in parliament and being in control of the executive, that has failed this nation.
In the case of Attorney General v Dow  BLR 116 at 168 B, Aguda J said “ At this juncture I wish to take judicial notice of that which is known the world over, that Botswana is one of the few countries in Africa where liberal democracy has taken root. It seems clear to me that all three arms of government- the Legislature, the Executive and the Judiciary-must strive to make it remain so except to any extent as may be prohibited by the Constitution in clear terms”
This view was approved by the Court of Appeal nearly thirteen years later in the case of Kenneth Good v Attorney General CA No. 028/2005. I came across the case of M. J. Bagwasi v Seabe Morueng & Ano. Misc Civil Application F228 of 2004 where Chihengo J made reference to these authorities. I had been concerned that Dr. Dingake J in his book on the constitution of Botswana had seemed not to have provided any authority in support of the proposition that Botswana was a liberal democracy.
It is generally assumed that when parliament takes a position or makes law it is aware of what the courts have determined. One therefore assumes that parliament was at the time that it entertained the motion from Hon. Maele aware of what the Court of Appeal had said in the cases of Dow and Good. There was therefore a duty on parliament in debating the motion to have regard to its duty to strive to retain Botswana as a liberal democracy except where prohibited by the constitution itself.
Honourable Maele’s motion related to Parliament’s Standing Orders. These are quite obviously subordinate to the constitution and our position as a liberal democracy. The question then becomes whether the motion to declare the position of Leader of the Opposition vacant was consistent with the duty of the Legislature to retain our liberal democracy credentials or attributes intact? One must in trying to answer this question have regard to the fact that the position of Leader of the Opposition is part of our liberal democracy.
I have not come across any report that Hon Maele referred to any Standing Order that said in the event of a tie, the position of Leader of Opposition shall be deemed to be vacant. Because of this his motion was effectively an amendment of the Standing Orders. Given that there was an incumbent Leader of the Opposition, and that amendments do not as a rule have retrospective effect his motion could not affect the incumbent. There is ample judicial authority for this position, e.g the Court of Appeal decision in the Phakalane Estates v Water Utilities case dealing with the Rules of the High Court.
The law does not concern itself with the form but rather with the substance of things. Calling an amendment of the Standing Orders a motion does not change the fact that you are actually amending the Standing Orders. Hon. Maele’s motion introduced a new Standing Order in the form of a conclusion. I believe parliament has an established process for amending the Standing Orders. A motion cannot be a substitute for this process.
In April 2008 when I raised the question of whether the incoming president had power to dissolve parliament, in view of an express term in our constitution that said he did not, the Attorney General maintained that there was a mistake in the constitution, and that indeed the president had power to dissolve parliament. One wonders why a mistake in the constitution, where there is an express term that says he does not have power to dissolve parliament, does not strip the president of such power to dissolve parliament, but absence of a Standing Order on appointment of Leader of the Opposition in the event of a tie, can be relied upon to support a motion to declare the office vacant, when there is an incumbent.
We therefore have a situation where absence of a procedural rule is used to declare a position vacant and also where express terms in the constitution can be dismissed on the basis that there is a mistake. This cannot by any stretch of the imagination be consistent with a country that upholds the rule of law. Rather than delight at their success in declaring the position of Leader of the Opposition vacant the BDP must do a little bit of soul searching, to see just how their conduct places this country in disrepute.
Even though the opposition conducted itself in a manner that suggests that they do not read the rules of the game, I submit that the BDP and the Executive are the real culprits. The opposition’s conduct has exposed how the BDP majority in parliament and the Executive have little regard for what our courts have said and apply clearly inconsistent and unsustainable standards in their treatment of the constitution. The BDP could not resist the fake opportunity to embarrass the opposition. Batswana say “kgori e bona mmidi, lerapo ga e le bone”.
There have been times when some of our leaders have conducted themselves in a clearly unacceptable manner, and maintained that there was no law that prohibited their conduct. If there is no law that sets out how the leader of the Opposition in parliament is to be appointed in the event of a tie, what law prohibited the Leader of the Opposition from remaining in position? After all we had passed the stage of appointment.
During the Air Botswana privatization saga we were told that motions of parliament are not binding on the Executive. One wonders how given such arguments a motion, without being understood to be a Standing Order, can remove a Leader of the Opposition from his position. This is particularly so given that in terms of our constitution the one with power to appoint is the one with power to remove. Parliament did not appoint the Leader of the Opposition in parliament, it cannot by passing a motion acquire and exercise power it does not have.
Ultimately the opposition must realize that their conduct and their failure to see that it is the BDP and its Executive that badly misread the situation, supports the proposition that the opposition must promote merit within its ranks. The idea that one has to bad mouth the ruling party the loudest, in order to be suitable material for parliament or leadership, is clearly flawed. The opposition must move away from labels to actual promotion of merit.
Seretse and his generation built the hut of a liberal democracy. We have all subsisted in this hut. It continues to shelter us. Seretse and his generation also proposed a hut of merit. This hut is yet to be built, and it is the opposition that has an opportunity to build the hut and invite our people to enter, with the full knowledge that no citizen can enter the hut and remain the same. Currently the opposition is occupying huts whose distinguishing features are the colours.
That is why they can send to parliament people who do not know the rules of the game. The opposition is investing time and resources on promoting labels and colours. They fail to realize that it is their heritage to promote merit. The opposition likes to pretend that they have enlightened people. I submit that they have allowed people who have read other peoples books, but do not add to the body of knowledge of mankind to solve the problems that our people face, to dominate.
In my view bad mouthing the Khama administration without building the hut of merit serves no purpose. The opposition has formulated a minimum program. They should allow our people to give it flesh on the basis of merit. It is only after this stage that the opposition should engage in constituency representation. Anything else does not advance us in the task of building the hut proposed by Seretse and his generation. There is no way that this hut can be built whilst incumbency holds sway. Incumbency restricts competition based on merit.
The opposition must understand that they have every right to claim Seretse as their ancestor. Their opposition of the BDP must not blind them from the unrealized objective of Seretse and his generation, of building a nation where a leader is appointed on the basis of merit. The BDP tells us that Seretse proposed its formation in the afternoon. Such timing was not intended to signal the sun setting on our ambitions as a nation. The opposition must propose its structure in the morning. That would make Seretse and his generation smile.