Winston Churchill crossed the floor in the House of Commons from the Conservative Party to the Liberal Party in 1904. In this regard William Manchester, in his monumental biography of Churchill, comments that “[o]n the last day of May he crossed the floor Winston himself, of course denied that ambition had played any role in his decision. ‘Some men change their party for the sake of their principles,’ he said; ‘others their principles for the sake of the party.’ He quoted Pope: ‘Sworn to no master, of no sect am I / As drives the storm, at any door I knock.'”
Much pronounced and commendable comment has been sufficiently made on the now mature debate on floor crossing, the comment, for and against floor-crossing, however brilliantly made took with it a tendency to gloss over the serial and far reaching legal issues that attach to an amendment of the magnitude that Minister Masisi has brought to Parliament. It is with this reserve and perhaps with the benefit of hindsight that the author moves herein to address the legal implications that attract to this kind of debate and its various permutations. It being not an all encompassing legal analysis (as the topic is itself far and wide), the piece shall, in harmonising the views of many legal and political scholars, endeavour to acquit itself and reach issues so far unreached in so far as comments already made are concerned.
In precursory fashion it needs be stated at the onset that Section 3 of the Bill of Rights of the Botswana Constitution, in the preamble guarantees to every person amongst other rights the right to political opinion, that is to say the right to enjoy one’s political opinion without diminution of any sort from whosoever may will, that if such a subtraction is to occur it must be by virtue of a law that satisfies the famous three part test. An MP, being human like the rest us, is free to enjoy this right by associating with any political party of his choice; he may not be punished for so doing. However if Parliament seeks to introduce a limitation as to how an MP, is to enjoy his right to political opinion by joining a party of his choice then it ought to do so by virtue of ‘legitimate’ as opposed to an ‘illegitimate’ law. Not a one that seeks to preserve the interests of the other at the expense of another.
Despite these clearly articulated justifications premised upon democracy and freedom of conscience/association of politicians the floor-crossing process has according to some commentators been tarnished by unseemly political horse-trading. It is argued by them that the very system of representative democracy has been reduced to a passable version of the transfer window period in the premiership of the English Football League! These criticisms are without merit. The public has now been drawn into these mass political dances, as the ruling BDP seeks to prevent an impending haemorrhaging of its members in Parliament, and floor crossers assert their love of their new political homes and hence insist that the status quo ante be retained or on compliance with the principles of natural justice only to enable them to desert to any party of their choice.
In the hybrid nature of our government MPs are employees and are engaged by the people, they may be safely called professional politicians, and the income they earn comes from being members of the National Assembly. It ceases the moment they cease to be members of the National Assembly. They like most of us have each, a family to support and will naturally suffer irreparable harm if their income is summarily and ‘unlawfully’ taken away. The decision, be it by operation of law or by internal party machinery to expel an MP clearly has not only private but public implications, that is once expelled the MP could no longer represent the electorate. On this basis alone that the argument for a floor crossing law can be rejected and safe to conclude that the principles of floor crossing must be allowed to trump the rights of political parties to act against dissident members; that is to simply accept that floor crossing is part of our political process and accordingly should be allowed to take place in a relatively unfettered fashion. This piece shall not only argue against the law that seeks to ban floor crossing but shall also suggest the way forward should such a law be implemented.
The first argument against allowing floor-crossing under a Constituency system such as Botswana is that voters vote for parties rather than candidates. This is too simplistic and mechanistic an understanding of the meaning of voting for a party. A vote cast for a party in terms of this system should not be regarded as a vote for the party alone, but also for the candidates on that party’s list. In this plurality system or single-member constituencies it is also true that when a voter votes for a candidate, he/she is also expressing a preference for their party; in fact, in such systems, party affiliation is in practice typically far more important than the personalities of particular candidates. Therefore, in our system, votes are an expression of preference for parties as well as candidates. Not parties alone as some already want to suggest.
Secondly, the argument that voters vote only for parties seems to based on a weak conception of ‘political parties’ as if they are inanimate and alien entities that exist over and above the individuals who constitute them. Political parties are associations of individuals who, in principle at least, share and subscribe to a set of common beliefs, values, and goals, as well as a desire to win control or become part of government. In addition, while the actual ballot papers may not display the names of party candidates, as would be the case in a single-member constituency system, in Botswana, per the Electoral Act parties have to publish the names of their candidates. Therefore, seats won by a party will be occupied by some of the individuals who constitute that party. Citizens are able to study these lists before casting their votes. To suggest that voters just proceed without any form of scrutiny of the persons on the list is not only an insult to the voter’s standing; labelling it uninformed, but it relegates the voter to the position of a zombie which only acts in a robotic fashion devoid of independence of thought.
Incidentally, it is customary in this country, and elsewhere, for candidates to campaign on behalf of their parties. This often involves canvassing individuals as well as groups of citizens, providing vital opportunities for citizens to realise that they will not merely be casting their votes for inanimate, faceless, and unidentifiable entities. Therefore, voters typically do have some knowledge about their party’s members who will occupy seats in representative institutions of government. It also a strong and undeniable fact that citizens choose their parties with some knowledge of individual candidates or even leading figures who appeal to them because of the ideas, values, and policies they represent. Also, the individual or collective traits of party candidates such as charisma, bravery, intelligence, and manners, as well as characteristics such as age, gender, race, religion, class, and so on do play a significant role in individual voters’ choice of a party. It can therefore be safely concluded that expression of preference for a particular political party also serves to some extent as an expression of choice for that party’s candidates. After all, without their members and candidates individually or collectively political parties may not exist, let alone secure support from citizens.
Thirdly, the argument against floor-crossing on these grounds may have grave theoretical and practical implications. It may privilege and invigorate the status quo, and therefore reinforce or even justify the current tendency in our political system to place too much power and authority in the hands of party leaders who often see themselves as not as custodians or servants but as ‘the party’ itself, at the expense of ordinary party members and citizens. Our electoral system turns public representatives into ‘party animals’ who are loyal to their party bosses rather than the electorate and the democratic ideals of the Republic. This is utterly wrong and should not be countenanced! MPs are human and have a conscience. It is a matter of public knowledge that in the ruling BDP it is worthwhile to stay as loyal to the party and its President as possible as such would inevitably guarantee handsome rewards; the evidence is colossal. The validity of this criticism is not an easy one to brush off, and it is one that can be addressed effectively only by ensuring that public representatives (MPs/Councillors) are as accountable to ordinary citizens as possible, as opposed to the party itself.
That is why the view that, votes are indications of preference for a party alone will only help to reinforce therefore justify authoritarian tendencies among party bosses, needless to say particularly in the BDP which of late has granted its President absolute powers comparable to those in Section 42 of the Republic’s Constitution. Such a view may strengthen their perceptions, which are not without fault, that they are entitled to demand and expect complete loyalty from party representatives at the expense of accountability to citizens. The fact that, voters place their crosses against the names of parties rather than those of individual candidates is insufficient reason to argue that they are only voting for those parties and not for their candidates. Therefore, this cannot be advanced as the sole reason why floor-crossing violates the ‘will of the voters’. Truly the arguments against floor-crossing are no less than self serving arguments which fear the collapse of the paranoid BDP ahead of 2014. The voter mandate rhetoric that is being thrown around is just threats against members who may wish to decamp from within its ranks before it becomes even more hopeless.
It is settled within another school of thought that voters do in fact rather elect candidates on the basis of party affiliation than on the basis of pure candidate preferences in most of the cases, that the representatives should therefore not be free to choose party membership by themselves without regard to the voters. Others say that those who claim that floor-crossing is violating the will of the voters do not understand the concept of a mandate and representation (Rapoo 2002). They say that representation in fact means that Members of Parliament have a clear mandate and authority to make decisions in the name of their constituents without having to seek approval of the voters between the elections. In legal parlance, that they have a general as opposed to a specific Power of Attorney to act on these matters for and on behalf of the constituents without the need to revert back, but with only the need to go and brief them on the progress or change already made to further their interests. This, it is argued by the author makes real business sense.
A multi-party democracy that Botswana is, contemplates a political order in which it is permissible for different political groups to organise, promote their views through public debate and participate in free and fair elections. These activities could be subjected to reasonable regulation compatible with an open and democratic society. Laws which go beyond that, and which undermine multi-party democracy and the proliferation of Independents, would be invalid. A requirement that a member of a legislature be obliged to resign if she or he changes party allegiance during the life of a legislature; truly and more than anything conceivable undermines the concept of a multi party democracy. Hence in Canada one is allowed to serve for the full term of Parliament, which is in our Constitutional scheme of things 5 years. This is premised on the reason that the legitimacy of Parliament rests on the fact that its membership is rooted in the will of the people who chose representatives in periodic as opposed to frequent and ad-hoc by-elections. That in order to guarantee that their will is respected; the term of office of legislators must as a rule be respected and not be tampered with. This security of tenure argument has been skewed for a very long time to the Judges, Attorney Generals, Public Prosecutors, and other high ranking officials; glossing over Parliament and/or its Members as if they are themselves insulated against threats and ills attracting to clauses, written or unwritten threatening the security of their tenure. Exceptionally, the tenure of legislators may be terminated, but such mechanisms must be viewed with the greatest of caution, narrowly defined and follow clear transparent legal procedures. It is not a matter that can be left to be juggled about in the hands of a ruling party.
The expulsion of members from Parliament as a penalty for leaving their parties (floor-crossing) should be viewed as a possible if not an outright infringement of members’ independence; anti-defection measures may be necessary in some jurisdictions to deal with corrupt practices; laws allowing for the recall of members during their elected term should also be viewed with caution; as a potential threat to the independence of members; the cessation of membership of a political party of itself should not lead to the loss of a Member’s seat. Freedom of Speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament and any law that purposes to do same is a serious infraction on the security of tenure of Parliament and needs be viewed with great circumspection as it surreptitiously erodes the confidence of Parliament. In the discharge of their functions, members of Parliament should be confident: free from improper pressures and they must as a matter of human entitlement be allowed to even move against their parties if the demands of public necessities so wish.
Key questions such as; what the floor crossing Bill means for democracy, how floor crossing impacted on ordinary voters, what are the objections against it and whether such objections are justified, the conditions which have necessitated the institution of the floor crossing legislation, whether there would be an ideal alternative policy to those who feel they should listen to their consciences and whether there is a need for an electoral process review are deep and intrinsic questions that are yet to be addressed by the proponents of this law that is set to ban floor crossing.
I move also to consider as has been done else where by other authors on how a proper law can deal with this. There are three main ways that legislation can deal with this: The seat may belong to the political party. If this is the case, the person who leaves (or is expelled from) his/her political party will lose their seat, and the party can decide whom they want to give it to. This strengthens the party organisation and keeps the political balance that voters decided on in the last election. This however as contended above may prove a danger to democracy. One can argue that internal party democracy and consensus-building are strengthened if the seat is kept by the political party. If there are disagreements in the party or parliamentary caucus, the individual Member of Parliament may be more inclined to try to solve the problem if the seat is held by the party and does not belong to the Member of Parliament. Political party members are also empowered by this system, given that they have a say in deciding who gets the seat. In practice, it is often the next person on the list of the last election who gets the seat. On the other hand, party discipline as has always been prone to, may go too far, and individual Members of Parliament may be threatened with expulsion from the party (and thereby the Parliament) if they do not vote according to the party line. This cannot be ideal.
The other way is the one that is already in place in our Republic, where the seat may belong to the individual Member of Parliament, and he or she can keep the seat regardless of if they stay in the same political party; this strengthens the role of the individual and also his or her links to the constituency. In this case, party discipline may be weakened, and some argue that individual Members of Parliament are less likely to seek consensus with party members and in the parliamentary caucus if they have the option to leave the party but to keep their seat at the same time. Floor-crossing is also seen by some as a justified way to respond to a changing political context and something that should be part of a dynamic and vivid party democracy. Rammidi is a case in point. Floor-crossing always tends to favour the ruling party and thus the government. A weak opposition may shrink considerably through floor-crossing, which can have a negative impact on the balance of power and foster a climate of political instability and insecurity.
The other alternative which is suggested by the Honourable Minister’s disappointingly shallow Bill (which seems inconsistent with other sections of the Constitution) is that the seat may belong neither to the party nor to the individual Member of Parliament. A by-election must be held to fill the seat. A by-election offers the opportunity to fill the vacant seat with a fresh candidate, and it allows the voters to express their will again. Voters may vote differently and thereby express discontent with whichever party they pick. By-elections are smaller and therefore less costly than normal elections. They may however have serious psychological effects on the voter, particularly when they are sporadic and repeated. In some countries, it has been proved that they will put a significant burden on the budget, and seats are sometimes left vacant for long periods because of a lack of capacity to arrange by-elections. In some circumstances, by-elections can have a wider political impact than merely replacing individual members, and are seen as a mid-term test of the performance of the government. In addition, if the number of vacancies to be filled during a parliamentary term is large, this can lead to a change in the composition of the legislature and an altered power base for the government, or even a change in government!
The inescapable conclusion is that intensive floor-crossing of Members of Parliament leads to a low accountability in politics and may affect the legitimacy of the government. Floor-crossing practices have historically fostered bribery and corruption when parties try to convince other Members of Parliament to switch parties. Floor-crossers are also often disliked by the general public and accused of political opportunism and corruption. They are often perceived as having their own agenda outside the political party, trying to pursue their personal career objectives. The case of Masimolole and Makgalemele is a case in point, where such rumours were rife and the public vowed to never trust the two gentlemen with power come 2014. More could be said of the real disdain and disapproval that was heard in most quarters after their stunt.
The Constitutional framework of the Republic of Botswana cannot be ignored particularly in such a Bill that is bound, should it pass, to alter the rights and freedoms not only of MPs alone but of the population of Botswana as a whole. It is in my considered view that having manifested itself as a highly divisive Bill, not only amongst party persons but also among the general populace of Botswana, it must enjoy, by National Referendum the blessing of people of Botswana. Bill number 12 of 2011, cannot proceed by virtue of ordinary Parliamentary debates and then by ordinary votes be passed. Its implications are so far reaching that to pass a law of its nature there is a need for a national referendum. It being an amendment that proposes to alter the basic structure of things as they are in the Constitution of Botswana, it truly deserves to have the people in the breath involved. There is a procedure which is prescribed for amendments to the Constitution and this procedure has to be followed. If that is properly done, the amendment is constitutionally unassailable. It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and reorganising the fundamental premises of the Constitution, might not qualify as an “amendment” at all.
The routine and religious holding of Kgotla consultation meetings on this issue of Republican weight cannot suffice. Parliament should wake up to this inescapable reality, abandon casual debate and resolve that a Referendum be called. Should the BDP, being the majority, proceed without this exercise, it would undermine the real tenets of democracy and the rule of law and in effect abrogate and destroy the Constitution.
