Monday, September 28, 2020

Is this what the heart of Botswana intends

In the book of Daniel Chapter 2 verse 30, Daniel explains that he is able to unravel the king’s dreams not because he is the most intelligent individual, but so that the king should know his heart’s (the king’s not Daniel’s) intensions.

When I first raised the issue of succession in terms of Section 35(1) of our constitution in April 2008, there was a very public reaction to my initial submission from the government. After this exchange there has been apparent silence on the part of government.

I say apparent because like everyone I was slow to realize that in actual fact, a brilliant though questionable plan to neutralize the fact that a Section 35(1) president did not have power to dissolve parliament was hatched and implemented under our very noses, and we were non the wiser.

The plan was first to set a trap, and hope that the opposition in parliament would bite. The bait was to pronounce that elections were to be held in October of this year. The opposition in parliament, which has always wanted to know when elections would be held welcomed this pronouncement.

Once the ruling party and opposition in parliament accepted that elections would be held in October a situation developed wherein the voice of the people, as represented by parliament was that elections would be held in October of this year.

What the opposition failed to realize was that the deal was valid only for this year, or at best its fruit will be enjoyed only during transition periods. Once we hold elections this October the deal is worthless, for whoever is elected president will have power to dissolve parliament whenever he so wished. The opposition will have to wait another eight years to know whether elections will be in October or not.

In terms of our constitution, the life of any parliament is five years. The current parliament’s life does not expire before October this year. But in view of the agreement reached by the people as represented by parliament, the life of the current parliament has to end this year.

One must also note that the voter registration exercise is now complete and if memory serves me right the Independent Elections Commission had set itself a target, in terms of registered voter numbers, and has exceeded the same.

The different political parties have also spent a lot of resources in preparing for the October 2009 elections.

Since in terms of our constitution parliament cannot dissolve itself, where such dissolution happens before the five-year term, someone has to do it. The beauty of the plan is that the President need not be the person that dissolves parliament in order to implement the agreement.
In fact even the Speaker can politely remind the different political parties of the agreement reached during the discussions of the State of the Nation address, and ask that the President out of respect be given the honour of dissolving parliament. The President would then not be acting in breach of Section 35(3) for his hand would be forced by our parliament’s agreement that elections take place this October, the whole country would be in breach of the constitution.

Should any aggrieved party approach court for an order declaring that the current President does not have power to dissolve parliament the Attorney General will be in a position to argue that things have moved so far ahead in terms of preparations for elections to be carried out this October that it would serve no purpose to stop dissolution of parliament this year. Further the president may object to being cited as a defendant and urge that the proper defendant is parliament.

Should a party seek an order restraining the President or any other party from dissolving parliament for us to go for elections this year, that party would have a tough time proving what right they have that they will suffer and what harm holding of elections this October will be occasioned?

I had raised the subject that former President Rre Mogae did not when he took over in April 1998, have power to dissolve parliament. The plan silently acknowledges that former president Rre Mogae did not have power to dissolve parliament without having to publicly admit the same. This is because the issue about Rre Mogae will not even come up should the matter go to court. The court needs not, in deciding the matter of whether the current president has power to dissolve parliament make any determination on Rre Mogae’s dissolution of parliament. The plan therefore brilliantly buries the earlier dissolution of parliament.

The plan does not rely on Rre Pilane’s flawed position of trying to use Rre Mogae’s dissolution of parliament as a precedent. It also negates the flawed suggestion the Attorney General can use her powers to amend the constitution. A suggestion that is very suspect from a constitutional point of view. One can therefore conclude positively that Rre Pilane was not the architect of this plan.

One must concede though that Rre Pilane might also have unwittingly provided a partial solution, in that his suggestion of precedence may seem to allow the architects of this plan to urge that since the October date for elections does not result in a shorter term for parliament, that the current parliament has not been placed in a worse position than the one when Rre Mogae dissolved parliament. This is, with due respect, a smart but flawed legal sophistry. The current parliament is not a successor to the one when Rre Mogae became president for the first time, in 1998.

The plan also provides cover for the flawed position of the Attorney General of relying on debates in parliament to interpret the amendment. This is because the plan makes it unnecessary for the Attorney General to restate her flawed position in the public domain or in court.

Taking the matter to court also presents certain procedural difficulties for a litigant. After all the courts have discretion to regulate their proceedings in accordance with the rules of court. A court sympathetic to the plan can allow infinite procedural delays.

Most importantly the plan eliminates the need to deal with the clearly unsustainable concept of “mistake” that was put forward by Rre Pilane and the Attorney General.
I have a strong suspicion that the plan does not come from the Attorney Generals office. The arguments put forth by that office show clearly that they were taken off guard. This quite obviously resulted in a loss of confidence in that office as regards interpretation of our constitution.

I do not believe that the plan came from the law firm that represented the president in the threatened suit with the Sunday Standard newspaper. This is because that suit would have threatened the success of this plan. If it were that firm that came up with the plan it would have been conscious of the attendant risks, to the plan, by any moves of taking the newspaper to court. Further the firm is now involved in a matter before the Media Complaints Committee. Such matter draws unnecessary attention to the presidency.

Most importantly it is this firm which allowed the president to effectively waive his immunity in order to sue the newspaper. So it is quite clear that this firm was not the architect of the plan.

This suggests that another legal mind was the architect of this plan, and the question that comes to mind is, to what extremes will our leaders go to implement this plan?

I ask this question because there are serious risks to this plan unraveling. As we all know there are serious divisions within the ruling party, with some publicly proclaiming that they do not support automatic succession. The main opposition parties are also on record as being against automatic succession. These two can therefore use their combined numbers in parliament to ensure that Section 35(3) of the constitution is given effect.

In fact, an opportunity exists for these groups to put their money where their mouths are. If they do not, then it would be well for them to keep quite on the subject of automatic succession. As things stand we do not have automatic succession, if they remain passive we will have it.

With the above risk in mind I do not believe even the ruling party was taken into confidence in the planning and execution of this plan.

Given that it took threats, pleas and a resolution of the HLCC for the president to withdraw from his planned suit against Sunday Standard, I have a strong suspicion that he is not privy to the plan. Or if he is, he nearly dropped the ball. Most disturbingly this suggests that he is not the puppet master of the plan.

If the nation as represented by parliament was not taken into confidence in the formulation and execution of this plan, and our President is not the puppet master, can we as a people claim to be a free and independent nation?

As I have asserted before our president’s peace of mind lies with us and nobody else. If we allow parliament to be dissolved so that we go for elections in October this year we will allow the architects of this plan to hold sway over our president. This is because the architects of this plan can position themselves as being the true protectors of our president’s powers. The soul of this country will be held by others and not by us.

I have a very strong suspicion that Rre Khama would welcome such a move as I suggest above, for he will see that he has a nation that is prepared to protect the provisions of its constitution. This allows him as leader, to draw comfort from the fact that his people will not lightly give up the fight. That he is not leading a nation of cowards. It would also liberate him from the clutches of the architects of this plan, the puppet masters.

At the moment I seem to be the only person who has publicly and consistently maintained that as a Section 35(1) president, he does not have power to dissolve parliament. The rest of the nation has kept quite. If I were a leader I would not trust a people who meekly forgo and abandon their constitution. These types of people can obviously sell one to the highest bidder.

I have shown above that a plan has been hatched and is being implemented, that if allowed to persist, silences us, because our elected representatives in parliament lack the courage and integrity to stand up for our constitution, and we have silently stood by.

In the book White Genesis (Sembene Ousmane) there is this passage “ More often, in a so called high caste family which glorifies in its past, a child comes into the world who, by his actions, sullies his entire heritage and even robs the individual diambur-diambur of his dignity”

We have consistently maintained that we are a democracy that respects the rule of law and our entire heritage is that of democracy. We glorify in our democratic past. However we seem to have forgotten that we are guardians of this democratic heritage. Our collective silence sullies our democratic heritage.

There is a strong theme of betrayal at the core of our country. This theme started way back in 1885 and persists to this day.

Our three chiefs went to London to negotiate protectorate status in 1896. They were buying time and were betrayed by the colonial power. They lost their powers and it took their sons like Kgosi Tshekedi in the 1930’s to try to claw back lost dignity. I do not believe they will be impressed with the three bronze statues that we have made in the Central Business District as our tribute to them. They would rather we stood up to assert our independence. We are betraying them. We sully their name. These statues become a constant reminder of our collective shame.

At the independence constitutional talks in London our chiefs felt betrayed. They had sought a federal state but were conned into accepting a unitary state model. Their resentment continues to fester under the surface. In the past it was the so-called minority tribes who were unhappy with our constitution. Now even some of the major tribes are showing their unhappiness.

Our tribes have been dispossessed of their lands for no compensation, in clear violation of our constitution. Our people wait for ages to be allocated land. Their mineral rights taken by a government in agreement with uninformed chiefs, most of whom had no working knowledge of the law.

When we voted in 2004 the parliament that came out of that vote was and is protected by Section 35(3) of our constitution. Our members of parliament have no mandate to degrade the quality of our vote without reference to us. No amount of legal sophistry can justify this betrayal.

Supposing Botswana were a company with a Board of Directors elected by shareholders, whose articles of association provided that, the Board of Directors could amend the articles of association, and that upon resignation of the Chairman the Vice Chairman shall become chairman of the Board for a maximum period of three months. Supposing the articles further provided that the Vice Chairman who becomes chairman upon resignation of the incumbent did not have power to dissolve the Board of Directors.
Would a change of the articles allowing the Vice Chairman to become Chairman, automatically give him power to dissolve the Board of Directors in the absence of amendment of the article that denied him power to dissolve the Board of Directors? Why are we treating our constitution with lesser respect than company articles of association, a private arrangement?

By allowing the above-mentioned plan our parliament robs each and every citizen, each and every voter, of his or her dignity.

The trouble is we have never seen our former protectorate status for what it was, and what it has done to our national pride. Under that regime we were governed by the Foreign Jurisdictions Act, which stated that we could not have friends who were not approved by the colonial power.
The extent of our universe, our world view, was therefore dictated to by the colonial power. At the heart of this law is the concept of “go phuthela” to deceive and deny information. Is there any difference between this more than 200 years old colonial law and our Media Practitioners Act?
Are we in the absence of a Freedom of Information Law in a better position than that in which our forefathers were in under the Foreign Jurisdictions Law of 200 years ago? Is there any difference between the degradation of our vote and this more than 200 years old law?

Our vote is our voice and the Foreign Jurisdictions Law silenced our forefathers.

If we interpret our current constitution in a manner that silences us, we are in no better position than our forefathers, who were governed by the Foreign Jurisdictions Act. They at least had an excuse in that the oppressor was an external power that posed a real threat to their survival.
It is incredible that in our supposed democracy and independence phase, we have internalized oppression such that we have become guarantors of our own oppression. We have become intimate with our oppression.

Is this what the heart of Botswana intends?

If parliament is not dissolved and we do not go for elections this year, all we loose is financial and material, recoverable items, but we regain the worth of our vote, our voice.
We gain our president’s confidence and purge ourselves of the legacy of betrayal, bitterness, mistrust and distance that obtains between us, and our leaders. We become a truly united people.

We break free from being puppets. We become a fitting tribute to our forefathers.

Is this not what should be our heart’s intention?

*Lediretse Molake is a Gaborone-based attorney

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Sunday Standard September 27 – 3 October

Digital copy of Sunday Standard issue of September 27 - 3 October, 2020.