Tuesday, January 26, 2021

It’s not for the Judiciary, but the Legislature to amend the Constitution

We were running late when we left Gaborone for Lobatse and since we didn’t want to miss a thing on the judgment, we drove like maniacs and in a record 30 minutes we were already seated at the Lobatse High Court. Little did we know the Judge would take a record 30 seconds to deliver the judgment.

Immediately the Judge of the Court of Appeal announced he will only read the last part of the judgment, I knew for certain they too (like the three High Court Judges) had found the fortress around presidential immunity very hard to penetrate. The old timer announced that the decision was unanimous. The Judge coughed before reading out the last sentence of the judgment and I could tell he had no good news for the majority who don’t buy into the immunity hogwash. He announced, “In consequence the appeal is dismissed with costs, including the costs of two counsels.”

That last sentence of the judgment brought to finality the marathon legal tussle between Motswaledi and Khama. Forget about the first and third respondents, Botswana Democratic Party and the Chairman of Gaborone Central Constituency Committee respectively, because they never were party to the opposition of the relief that was sought by Motswaledi. Instead, they unequivocally and fully came out in support of the applicant, Motswaledi, but presidential immunity declared their support useless. Whilst there, Batswana ought to know that this case was no longer a matter for Motswaledi but rather the entire nation. The outcome of this case has more bearing on the nation and generations to come than it has for the individual that is Motswaledi. Gomolemo Motswaledi, Ian Khama, Sonny Serite and yourself are here now, but at some point, and not through my word or work, but rather through God’s manifestation, we will not be around. However, our departure will not mean the end of Botswana as more generations will still come after us. This is why it was quite imperative to exhaust all available avenues to clear any mist of doubt surrounding the interpretation of the now infamous subsection 41(1) of the Constitution of Botswana.

After all the eight Judges(three at High Court and five at Court of Appeal) unanimously declared that the wording of this constitutional provision is unambiguous and should be interpreted to give the president blanket immunity, it then goes without doubt that the problem lie not with the judges but the constitution. Infact in their judgment they plead that they are only interpreting the country’s constitution as it is without any incursions. I say this because somewhere in their judgment they wrote, “We do not think we are at liberty to create a third category of capacities when the constitution speaks only of two.” The other interesting observation to heed in the judgment is where they say “Finally, Mr. Sutherland submitted that we should consider the similar provisions in the constitution of other countries, in order to determine whether the Botswana provision is too favorable to the president.” To this they answered, “But it is not for us to re-write the Constitution of Botswana.”

This brings me to my call for Constitutional reforms. The Judiciary has absolved itself from the responsibility of penal beating our cockeyed constitution and now we have to look to our Legislature to re-write the Constitution. From the court’s interpretation of Subsection 41(1), I can think of only two reasons that could have made the crafters of that provision to deem it fit for our country. Either they never imagined this country would ever get a leader who might use the provision to oppress citizens, or it was just a case of being tricked by the Queen’s language because I still refuse to believe they meant to give the president blanket immunity. Anyway that is now water under the bridge.

Many of us who are not blinded by sycophancy and are alive to the fact that there is life for the coming generations even after the departure of Ian Khama, fully believe there is urgent need to overhaul our Constitution so that it rhymes with our democratic principles. We should change our constitution not to keep Khama on leash but to prepare even for future eventualities long after Khama. I believe Motswaledi’s brush with Khama was a blessing in disguise in that it helped reveal the fact that the democracy we have been bragging about all along is as good as someone who brags with a chip of a bottle thinking they have a diamond.

The next parliament, which we are voting for in less than two weeks, has its job already cut out. They must hit the ground running because our constitution needs urgent operation if our democracy is to be resuscitated. Batswana should not vote for “yes sir” puppets in this looming general election. We need people who will go there to serve the interests of the electorate and not the leaders. The dear leader mentality will not be tolerated in this coming parliament. I want to believe Batswana are now fully aware of people who have vowed to follow any and everything that their leaders say even to the detriment of the electorate. Batswana should not vote for people who have no shame in sacrificing their conscience when it comes to accruing favors with the president.

As long as no one has ever told me the president is not made of flesh and blood just like me, I have no reason to believe he is perfect and infallible. I don’t know everything in the world. I am human and I err and so does the president. So I don’t understand why people should be so scared to advice the president when he derails. It is rumored he abhors dissenting voices as much as he does alcohol but for as long as he is the president he should be subjected to advice and constructive criticism.

He should learn to live even with unsolicited advice from the likes of me because I legitimately expect him to serve the interests of the majority and not impose what he single handedly assumes is right for the entire nation. Democracy dictates that the will of the majority should prevail. What this means is, even if the majority yearn for something that is not good in the eyes of the minority, their wish has to be granted. Yes, you may frown upon this assertion but that is what majority rule means in a democracy. For example it is not for Khama to try and stop alcohol and night life because he thinks they are not good for the nation, it is rather for the people themselves to choose if they want to dine and wine or drink and dance all night.

We all know how insecure we feel about cellphone conversations nowadays. You can’t even tell your best friend what you were up to last night. You can’t even meet your friend at a bar and chat without looking behind your shoulders. All this paranoia has been brought by the arrival of DIS and I ask myself why we have DIS when instead of making the nation feel safer we are now as scared and paranoid as Scooby Doo the coward dog.

Back to upcoming general elections. Like I have said earlier, the constitution needs to be amended and if we are to achieve that mammoth task we need to bring into parliament people who agree that the constitution needs to be amended. It is gratifying because even in the BDP we have people who believe the constitution needs to be overhauled. Barata-Phathi have shown no qualms with amending the constitution.

They believe automatic succession should be done away with. They believe the president should be directly elected. They believe subsection 41(1) needs to be seriously hammered. It is gratifying that we have people in the opposition who believe in these reforms too. Now all the electorate needs to do is to bring back all BDP candidates who believe the constitution needs to be amended and where the BDP candidates who are fielded are those that believe the president should be left to act as God, there is an alternative in that the opposition candidates, who advocate for constitutional reforms, can be brought in to sing the same song with BDP parliamentarians in their quest to change the constitution. BDP members should be brought back so they can sought the mess that their party has created in both party and country constitutions. It would not hurt to bring capable opposition candidates like Saleshando senior and junior, Kesitegile Gobotswang and Taolo Lucas.
At least some constituencies like Gaborone West South and Gaborone Central are blessed with candidates who have no fear in advocating for the needs of the electorate. With Botsalo Ntuane and Dumelang Saleshando what more could these constituencies ask for?

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