The talk of regime change has come and gone. It excited some, scared a lot and offended certain sections of the public who had misgivings of the soon to follow consequences if such a step into an uncharted terrain was to be taken.
There is now a new talk. All the country is abuzz with it. It fills the corridors of government enclave and it is heard in private offices, many are left wondering as to what it really entails. It is, I should say, perhaps more civil and clamour-free form of deposing a sitting sovereign, an unseating that will without question receive a nod and be endorsed by the international community as apposite. That is none other than, the vote/motion of no confidence.
This write-up, intending not to educate the lay on the rudiments of law, shall examine the ambit of a motion of no confidence. First it shall look at the history, the nature and the attracting consequences of such a motion if tabled with/without success. The writer will as expected take the topic home and consider the relevant portions of our law and see how such vote or motion may be tabled with success and also consider its attracting consequences or end results if they are to be called such; should it pass or fail.
According to Westminster parliamentary procedure, governments often respond to a vote of no confidence by calling for a confidence motion. Parliament passes or rejects the vote. Typically, when a vote of no confidence passes parliament, the government official must either resign or seek a parliamentary dissolution or general election.
HISTORICALY, The first motion of no confidence occurred in March 1782 when, following news of the British defeat at Yorktown in the American Revolutionary War the previous October, the Parliament of Great Britain voted that they “can no longer repose confidence in the present ministers”. Prime Minister Lord North responded by asking King George III to accept his resignation. This did not immediately create a constitutional convention. During the early 19th century, however, attempts by prime ministers such as Robert Peel to govern in the absence of a parliamentary majority proved unsuccessful, and by the mid 19th century, the ability of a motion of no confidence to break a government was firmly established in the UK.
In the United Kingdom, there have been a total of 11 prime ministers/governments defeated through a no-confidence motion.
RECENTLY in 2008, Canadian Prime Minister Stephen Harper, of the re-elected minority government of Canada, requested that Governor General Micha├½lle Jean prorogue Parliament. The request was granted, and it allowed the Prime Minister to delay a potential vote on the non-confidence motion presented by the opposition. (See 2008ÔÇô2009 Canadian parliamentary dispute.) However, two years later in March 2011, his government was defeated by a motion of no confidence after being held in contempt of Parliament, a Commonwealth first.
Most recently the embattled Italian Prime Minister Silvio Berlusconi squeaked through a vote of no confidence in his government, surviving one of the toughest tests of his leadership but emerging with his power severely weakened.
The media magnate, who has led Italy for most of the last decade, secured the barest of majorities in a vote marred by scuffles in the lower house of Parliament. Lawmakers voted 314-311 in favor of the government. This was by all standards an escape by whisker! The above history alone should teach Presidents and heads of governments lessons not to be forgotten. Khama above all.
NOW to the position of our law; our colonial and only Constitution though now antiquated and susceptible to criticism in many respects, has in the spirit of keeping in touch with basic principles of the rule of law and constitutionalism enacted and commendably so this near drastic procedure; it can be found within its four corners.
Section 92 of the Botswana Constitution, in so brief a fashion states the following about the no confidence vote:
“If the National Assembly at any time passes a resolution supported by a majority of all the Members of the Assembly who are entitled to vote declaring that it has no confidence in the Government of Botswana, Parliament shall stand dissolved on the fourth day following the day on which such resolution was passed, unless the President earlier resigns his or her office or dissolves Parliament”.
One needs not be misled by the wording of the above section, which says, no confidence in ‘the Government of Botswana’. The lack of confidence that the mover (Mr. Saleshando) will be registering would be in essence as indicated above (in the historical analysis), against the leader of the ruling party (Lt. Gen. Khama) more than anyone else; which party would have by majority formed a government after the general elections.
This procedure calls upon the whole house of Parliament; it invites all and sundry no matter what party they are aligned to to register their concerns, frustrations, disappointments and most of all for pronouncing incompetence on the incumbent and his associates for failure to live up to the expectations of becoming the sole repositories of the hopes and aspirations of the peopling of Botswana by acting unilaterally and pursuant to sectarian interest as opposed to the common good. It says to them, ‘our democracy is under siege, exercise your constitutionally entrenched rights as members of Parliament and come to its aid, it is now or never’.
The law demands that for the vote to pass it must be by a majority of all the members who are entitled to vote. The word majority appears throughout the Constitution especially in matters involving voting. It simply means 2/3 (two thirds) of all the members that are eligible to vote will be enough to see this confidence vote through.
IT IS NOW common and in the public domain that the bulk of Lt. General Khama’s Cabinet consists of Specially Elected members of Parliament; these form a specie of people that are in terms of the Constitution of our Republic disqualified from voting. They cannot decide as to whether the man made them Ministers and appointed them portfolios is to stay in power or go. They do not have a say in his fate. What a sorry sight! Imagine someone gives you something so precious that would treasure it at all costs and one day they get caught up in the thicket, between two horns of a buffalo or in a raging flame and all that you could do is hope that they come out unscathed from such a circumstance. This is the position that shall strike Cabinet as the vote is moved against Khama their appointer and chief.
The mover shall of course not be eligible to vote. That should be obvious.
TO THE ATTRACTING CONSEQUENCES; when or upon hearing these damning accusations against him particularly and his government, President Khama shall have one of two options which both have the same and desired end. One part states that he can soon resign his office in which event the office of the President will become vacant; the relevant provision that applies in the event of such a vacancy appears in Section 35 of the Constitution and shall be discussed below. Also, Khama can dissolve Parliament on his own motion in which event the house shall stand dissolved. In premises therefore and taking into account the above, Khama can refuse to pick any of the above options, that is not to say that he will be within his rights to do so. But we have lived long enough to know that power is sweetest and those at its helms are more often tempted to hold on a little longer no matter how illegitimate/illegal such continued hold to power may be.
In that event (of his refusal to relinquish), assuming that the vote would have received popular acceptance and adherence when it was moved, Parliament shall within four days of the vote stand dissolved automatically and ex lege, simply put by operation of law. In this scenario and the former Section 32 of the Constitution shall apply. These provisions are also discussed below.
REVERTING as promised to Section 35; the section deals, I suppose deals specifically with amongst other things, the resignation of the President and what happens if he so does. In summary it gives the office to the Vice-President the offices but denudes him of the power to revoke the appointment of the Vice-President and the power to dissolve Parliament. It also provides another procedure to elect a new process of electing a new President (without going for a general election). The elected President under this section can now have all the powers of the office and can dissolve Parliament.
Should General Khama decide to resign, which is highly unlikely, the above position will have to follow. The Vice President is in my opinion already disqualified as it is a condition of the section that the Vice-President who can take up the office must be fit and not have any form of infirmity. And a certificate will be made by the Chief Justice attesting to the health or otherwise of the said Vice-President. Now we can ask the question; in your opinion is the Vice-President Lt Gen. Merafe a man of full health? Can the Chief Justice in your opinion issue a certificate attesting without blinking that the man is ‘as fit as a stallion?’ You tell me.
That will leave the House with the latter alternative of what I would call internal voting. This can be of advantage to both the BDP government and the Opposition alike. The BDP can choose their new choice of leader and have Khama removed. The Opposition most of all must if such is to happen hinge on this. It must court BDP MPs who owe their allegiance to democracy and nothing more to have them endorse their candidate who can then have the power to dissolve Parliament. This would occasion a change in government.
SECTION 32 however, is the most exciting one; its implications alone already form the dreams of the common man who is fed up with the kind of country that we have become owing to the now recalcitrant BDP under Khama. Section 32, governs all instances where Parliament is dissolved, be it by the President’s voluntary resignation, his willful dissolution of Parliament or after the House is dissolved automatically by operation of law the President having not taken any of the options. The section, though seemingly protracted and difficult to navigate, deals with the occurrences and house keeping matters that attract to a general election. It in brief, mandates that a general election follow per the Constitution and other electoral laws.
Now, what the opposition will be best advised to do as I hint above is to court other members of the house who belong to the ruling BDP. You never know what people are thinking till you sit down with them. To them a clear cut out strategy must be sold, they should be taken into confidence and be assured that they must allay their fears and should the motion pass a place shall be found for them somewhere as they in a historic move stood against the many and prevailed in no small measure. The battle is not against a person. The war is not against the person of Khama. It is for our democracy. There is no picking upon any man but merely a preservation of institutions; that they retain the posterity and refinement we gave them since we became free of the colonial master. It is a word to future generations. The message is conveyed to them expressly that never shall unilateral action and abuse of power and state resources be condoned in the Republic of Botswana.
ONE wonders what if it does not succeed. This is the new Botswana. It is now on record that the public sector strike has made history. Batswana are now more than anything conscious of their rights, they are resilient and have thrown out the window the perception that they are a calm lot that easily ignores injustice; it is not the lettered alone anymore who enjoy such a privilege.
NOW, yet once again an opportunity presents itself for Parliament to add to the history of activism and rights consciousness of our Republic and its people. If the vote does not pass still Lt. Gen Khama and his government would never be at ease (ga ba kake ba robalelwa ke dithokwa). This vote shall haunt them. It shall keep them on their toes and remind them that we are not so all powerful after all, our immunity is not as fortified and impregnable as we thought, it has weaknesses and safeguards and can be assailed by those we often denigrate and not give due honour as we should. That alone is history enough.
NOT being ignorant however, how the BDP led government is; that it can after it survives the vote take to its now sickening self righteous attitude and petty acts then act the angel and adopt the position of a victor as if the battle was against them; forgetting that ours is an allegiance to democracy, preservation of our institutions and the rule of law and not the rule by a man.
