Wednesday, September 23, 2020

Is the legitimacy of a BDP President valid without a physical election process?

By Adam Phetlhe

The legitimacy of a Botswana Democratic Party (BDP) President in both party and government under the present succession dispensation has been a subject of debate in the recent past. Lately, a loser in the party bulela ditswe (primary elections) Rre Kamal Jacobs has approached the High Court to challenge the legitimacy of the sitting party President Rre Mokgweetsi Masisi under Article 29 together with its sub-sections of the party Constitution. It would appear there are blatant procedural differences under the succession dispensation when a President assumes the position in government and when they do so in the party. When the President assumed the position of President of Republic of Botswana in April this year, there was a physical election process in parliament followed by the swearing-in ceremony to confirm that he was duly elected as the President of the Republic whereas no such physical process obtained in the party to also confirm him duly elected President of the party. I will be concentrating more on the party presidency than in government and what the consequences could be should the court rule in Rre Kamal’s favour.

Let me first try to bring context to electing a BDP President such that we read from the same page. Without going far too back into history, it will be remembered that at the BDP elective national congress in Tonota in 2017, positions of party Chairman, Secretary General, Deputy Secretary and Treasurer to mention but a few were contested. There was no election on the position of a party President (I stand corrected). Conventionally, organisations that hold elective congresses vote on key top positions that constitute the executive structure of such organisations. The BDP is pretty entitled to embark on a process that best suits it. Constitutionally and traditionally it would appear, the BDP only elects or endorses its President during an election year as it will be doing so next year. The last time such President was elected or endorsed was the immediate past individual in the person of Rre Ian Khama during the 2014 special congress held just before the general election. Because the party President has not been challenged in the past but simply endorsed by the congress I would argue, the contestation thereto has been non-existent. As it stands I argue again, the current BDP President is running on the election mandate of Rre Khama pending his own due next year. This then brings me to nub of the matter under discussion.

Like I have said above, it should reason that as soon as the sitting BDP President assumed the position after Rre Khama, he should have been physically and strictly elected to the party position as he did on 1 April 2018 on the government side such that the automatic succession dispensation at party and government levels are in sync with each other for the argument that they are intrinsically tied to be sustainable. I am arguing very strongly that when Rre Khama vacated the party presidency, a vacancy was created and existed to be strictly filled in line with Article 29.3.4 which provides in part that ‘in the event of a vacancy arising in the vacancy of the Presidency of the party when the party is in power, the Vice President of Botswana shall automatically become the State and party President’.   Article 29.1 of the BDP Constitution provides that ‘when the party is in power, the President of the party shall be elected by secret ballot at the National Congress of the party called by the Central Committee during every election year.’                

What does ‘….The Vice President of Botswana shall automatically become the State and party President’ mean? It simply means just that. But I will argue it means that this notwithstanding, certain imperatives must be in place to confirm and validate the automatic promotion of the Vice President to the President of the country and party. In the context of what is in the minds of some of us, the word automatically would almost suggest that in the case of the presidency of the party, nothing much matters for as long as the Vice President assumes the presidency of the party. A person assumes a political position by going through a physical electoral process which should not be couched in some form of ambiguity or the other as in the presidency of the BDP. It would have done the party a great deal of comfort in my view to elect or confirm the new party President say during the National Council meeting such that any potential challenge to his legitimacy as is the case with Rre Kamal and possibly others is kept at bay.   

Should the court rule in favour of Rre Kamal, such ruling would be so catastrophic to lead to some constitutional crisis of some sort to the BDP and by extension, the country. It would mean that the BDP does not have a duly elected President and consequently, the presidency of the country would be questionable due to the fact that one becomes party President first before they become the country’s;  that all party decisions taken by him are null and void. The long and the short of it is that the country would in some respect come to a halt.   

One is alive to the fact that the President of Botswana is heavily protected by Section 41 of the Constitution where there is a case law in this regard (Motswaledi v Ian Khama back then). This section provides that ‘Whilst any person holds or performs the functions of the office of the president no criminal proceedings shall be instituted against him or her in respect of anything done or omitted to be done by him or her either in his or her official capacity or in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her in respect of anything done or omitted to be in his or her private capacity’. The BDP will predictably rely on this Section whereat Rre Kamal’s case may not even reach the stage to discuss the merits or lack thereof. This case is very likely to be dismissed on a point in limine basis.

When all is said and done, I verily believe to borrow Rre Kamal’s word, that there is a solid case to be made that the BDP presidency under the prevailing circumstances is illegitimate to the extent that its President has not been strictly elected ‘in his own right’. One would proffer an unsolicited advice to the BDP that it seriously reforms the election of its President such that this position is also contested at all elective congresses and not only during election years as it appears to be the case. This I argue, will clothe such position with a great deal of legitimacy. Judge for Yourself!

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