We have been told that the president in reshuffling cabinet was exercising power vested in him by the constitution. If we ask why he reshuffled the cabinet, we are told that he has the prerogative to appoint cabinet ministers. It seems to me that we get involved in cyclic reasoning. We then indulge in speculation fail to see that we really have no standard to rely on.
Our constitution establishes parliament and defines its powers and goes further to establish a purpose for having such powers. Parliament has power to make laws for the peace, order and good government of Botswana. The Judiciary likewise has power to determine any civil or criminal matter. The judiciary also has power under any other law other than statutes and the constitution. The constitution creates an office of president, and then vests executive power of Botswana on the person who becomes president.
Things look fairly straightforward until you look closely, and notice that our constitution does not set out why the judiciary has power to determine civil and criminal matters, and likewise it does not set out why Botswana has executive power. Of the three arms of government only parliament has an objective spelt out.
As regards the judiciary there are decisions where it has expressed its purpose as to ensure justice and fairness. I am not too sure there is anything unique about this since no judiciary can say that it is not concerned with justice and fairness. It therefore has itself found a purpose outside the constitution. As for Botswana I am not sure it has expressed a purpose for its executive power outside the constitution. Maybe no country has ever done that.
A look at Section 48(4) of the constitution shows that parliament may regulate powers conferred on the president with regard to the armed forces. Of interest to me is the question of whether regulation can be relied upon to subtract from the power conferred on the president. I think regulation cannot do so.
If I am correct in holding that regulation cannot be relied upon to subtract from the power conferred on the president, then one can see the position Botswana is in with regard to the exercise of executive power. A lot has been written about how the president does not have to follow advice tendered by anyone, and I think this has distracted us from the more fundamental enquiry of what executive power exists for. I think if we did this, we would realize that Botswana has executive power whose purpose we have not defined.
Of course, more knowledgeable people may say that we can make reference to international law or some other standard, but I doubt if that will advance our situation because we have had it said that we have to domesticate those international standards or ratify them or some such mechanism. I am not aware of any international instrument that establishes the purpose or objective of executive power. I am not saying none exists, but only that I personally do not know of such instrument.
I do not believe that vesting changes the situation for we now have a power with no defined purpose in the hands of someone. In such a situation is it fair to set expectations of why such power is exercised in any particular way? What I am getting at is that even if we were to say that the president must follow the advice of any particular person or body, we shall in the absence of a defined purpose not really change our situation. To say follow the advice of parliament or cabinet serves no purpose if the constitution does not like in the case of parliament set out what executive power of Botswana is intended to achieve.
I do not think regulation of exercise of power and limiting the power without defining its purpose really achieves anything. Like most people I have wondered why the president does not have to follow anybody’s advice, but upon further consideration I have come to realize that I miss the point. The real issue is the purpose of the power, not its exercise.
Supposing cabinet was to discharge its function to advice the president fully, and the president was to comply fully with such advice, what makes us think this will be a good thing when we do not have a defined purpose for existence of executive power?
There has been talk in some circles that the president needs a kitchen cabinet of experienced and independent minded people. In my view this type of thinking misses the point. The thinking merely means having more people around exercise of executive power. In the absence of a defined purpose for the existence of executive power itself such an arrangement is with respect useless.
The reason for the heading is that we often forget that elections have consequences more fundamental and material than saying such and such a party has won the elections. The person who becomes president becomes so within the framework of our constitutional dispensation. One therefore becomes president, and has executive power vested in him but there is no constitutionally defined purpose for executive power itself.
Supposing some elements within the ruling party wanted to have access to the president’s ear, and are actually given a hearing, what power do they have over the president as regards executive power, dissolution of parliament and exercise of any other power? I do not think they have any power. He may listen and agree with them but the question still becomes what is the defined purposes of the power?
Come to think of it, even the power to dissolve parliament has no defined purpose, but in reading the constitution one can say it serves to force parliament not to make a law that the president disagrees with.
Ever since independence the BDP has won elections, but it has never had executive power. There are those who have argued that the government must implement promises it made when BDP campaigned for elections. The problem is there is no constitutional link between the promises and executive power that anyone can refer to. One might even suggest that to try to force the president to exercise executive power in a particular fashion, or in accordance with some promises made during elections, is to violate our constitution.
Like most so called educated people I used to laugh at the so-called uneducated voters, who voted after being given a few beers, but have now come to understand that I am in no better position than them. I have come to realize that like most people I never really invested energy and study into the consequences of elections. I am not alone in this situation and it seems to me that voting is really an exercise in blind faith. Of the three arms of government only one has a duty to exercise its power for my peace, the other two exist yes, but I have no constitutional point of reference for their purpose.
Those who call for good government can only really find a constitutional anchor at parliament. I am not too sure that they can have a footing within the executive, for we do not have a defined purpose for executive power. Likewise good government within the public service has no constitutional point of reference.
Maybe we expect too much. Botswana is established as a republic, and is defined as a territory. Establishing a republic within a territory does not really give much direction on where the country is expected to go. We then have basic human rights established also relative to what is called a democratic society. These in my view are rather sparse pointers as to what executive power exists for. One might even suggest that anyone who becomes president has very little to guide him.
Of course, we have Vision 2036 and National Development Plans but there is no constitutional link between these and executive power. I am not too sure that one can successfully argue that executive power exists to achieve these, because it looks like executive power predates these, and there is no reference to these in our constitution. Will a president be wrong to argue that as far as he is concerned the constitution does not establish a link between executive power, good government and improved livelihoods for Batswana, and that unless parliament creates a link no one should bother him?
I think the failure to realize that executive power of Botswana has no defined purpose is why some people have called institutions like DCEC and DIS oversight institutions, and even called for them to report to parliament. Normally these types of institutions fall within the ambit of the executive, and given that there is no defined purpose for executive power should we be surprised if they are used for some purpose that we may not like or agree with?
By the way in case, you have not realized it, the constitutional review skirmishes have long started.
