Saturday, January 23, 2021

“Khama’s succession to the Presidency is illegal”

The nation will on the 1st April witness the inauguration of Vice President Ian Khama as Botswana’s fourth head of State. Never before in the history of the country has presidential succession been marred by a general atmosphere of resignation, despondency and apprehension – all combined.

The anxiety stems from the manner in which Khama was ushered into political limelight ÔÇô through a process that has brought about an unprecedented debate in academic, political and media circles about the efficacy of a system that does not favour direct election of the president, and that has consistently found solace in automatic succession of the Vice President to the Presidency. This debate has, and still is, all engulfing, as it permeates all partisan divides

Gomolemo Motswaledi, then Botswana Democratic Party Youth Wing Chairman, is on record as having stated that: –

“The President will also feel proud that he has been elected by the majority.” (Botswana Gazette December 24 2003).

The media has been in tandem:

“There is need for a debate on the wisdom of automatic succession of the vice presidency. The current practice, which was introduced more for expediency than principle, shuts out everyone else ÔÇô including the elected representatives, the Members of Parliament ÔÇô from the process of choosing the country’s head of state. It is unthinkable that a President who is not popularly elected should enjoy the sole right to choose a future President for the nation.” (Mmegi November 3, 2004)

Various academics have hailed Botswana’s unevenly distributed economic growth as the ‘African miracle’. However, the more cautious ones have criticized the over emphasis placed on the economics, and ignore the political dynamics of the country’s pre and post independence experience.

“But the dynamics of Botswana’s celebrated democracy must be investigated if the idea that the country represents a model of presidential transitions in Africa is to be properly assessed. The proposition is doubtful primarily on the basis that the country’s democracy is highly elitist, power is centralized in the presidency, and the two presidential transitions, in 1980 and 1998, both took place without reference to the wishes of the people, determined by very few and involved successors who had no popular constituencies whatsoever” (Kenneth Good and Ian Taylor, Presidential Succession in Botswana : No Model for Africa)

(Incidentally, as a pre-emptive move, Professor Good was slapped with a Prohibited Immigrant order under the hand of none other than President Mogae, days before the date scheduled for presentation of the paper. He did, however, present it to a large audience at the University of Botswana following a successful urgent legal challenge, led by the writer).

As the country’s political pulse warmed up to the debate (on automatic succession), the critics of the system became more and more robust, direct and personal, particularly when Khama was drawn from the army and catapulted to the office of Vice President. A closed book that he is, Khama’s initial lackluster approach and attitude to politics and its institutions did not serve to deter the critics.

As he quickly settled to his new job as second in command of the realm, Khama could not hide his contempt for politicians. A parliamentary debate on Members of Parliament’s salary increments provided him with an opportunity of expressing his inner feeling about his colleagues in Parliament. They are “unprincipled, intolerant, selfish vultures and monkeys”, he charged.

The Media could not help, but question the man’s attributes and democratic credential. “Who is the Vice President? A distinguished retired army general? Big deal, he was never a colonel. (Made brigadier at 26). An accomplished academic? Have mercy! A seasoned politician? He is not active in Parliament and is probably not accountable to it. A proven Manager? He was relieved of his ministerial portfolio because he could not stomach being appraised by his peers in cabinet and having to report to the president as everyone else. Enter minister without portfolio, project manager supremo who works according to no known methodology and reports to no-body”. (Mmegi November 26 2004).

Behind the doctrine of automatic succession (if the process deserves such categorization) has been a systemic and crafty manipulation of the laws of the country, particularly the Constitution. Since its promulgation in 1966, the constitution has undergone no less than 15 amendments, all primarily designed to entrench the BDP’s elitist grip on power.
“Botswana’s liberal democracy allows full rein to the prerogatives of ruling elites, through the Constitution and contemporary practice within the predominant ruling party, solidly based upon the inherited political culture” (Good & Taylor, 2005).

Dr Maundeni (2004;6), has rightly observed that with the emergence of majority party democracy and the establishment of the state presidency, “the intent and practice of limiting participation of the ordinary people was preserved.” There is ample evidence that all the country’s three Presidents,” have been ready to subordinate the law and the Constitution to the political exigencies of the time on more than one occasion.” (Good & Taylor, 2005)

Of interest and topical; of such maneuvers is the 1998 Constitutional Amendment (Act 18 of 1997). In step with contemporary international trends, President Masire introduced key electoral reforms such as the lowering of the voting age to 18; establishment of an ‘Independent’ Electoral Commission and extension of the franchise to non-resident Botswana citizens. However, he also introduced a system of automatic succession of the Vice President on the retirement, death or incapacitation of a sitting President.

“Whenever the President dies, resigns or ceases to hold office, the Vice President shall assume office as President with effect from the date of death, resignation or ceasing to be president”, the 1997 amendment proclaims [Section 35 (1)].

Fortified by this amendment, Festus Mogae was ushered into the oval office by his predecessor, Masire, who had resigned, or “retired his position as Botswana’s President in April 1998 owing to internal factionalism within his party and allegations of corruption” [The Electoral Institute of Southern Africa (EISA)]. Mogae was just the indispensable panacea prescribed by the image consultant, Lawrence Schlemmer for a BDP afflicted by factional paralysis. The consultant had advised the party to re-package itself by securing a person of “sufficient dynamism”, “untainted by factional fights, to ‘‘unite” the party.

Mogae swiftly proceeded to take an Oath of office and tactically delayed appointment of a new cabinet. He had to first carefully prepare the ground for his would be successor ÔÇô Ian Khama.

Naturally, the appointment of Khama to the Vice Presidency ÔÇô which would make him a political up-start ÔÇô would cause a lot or resentment within the ranks of the party old guard, some of whom were already eying the vacancy. But delaying the appointment of a new cabinet would serve as a carrot and stick tactic, as members were not prepared to risk their chances of appointment by irking the new President in his personal choice of Vice President. And so, Parliament was convened, solely for purposes of having Khama endorsed as Vice President.

A grave error, which all along has been un-noticed-or kept under wraps, was committed. Mogae’s succession to the presidency could only have been one in an acting capacity and it was imperative that Parliament convenes within seven (7) days of Masire’s resignation or retirement, to elect a successor.

“If the office of President becomes vacant the National assembly shall, unless Parliament is dissolved , … meet on the seventh day after the office of president becomes vacant, or on such earlier day as may be appointed by the Speaker, and shall elect a person to the office ..” [Section 35 (4)]

This was not done. Writing recently in the Sunday Standard (March 23-29, 2008) Lediretse Molake attributes this omission to sheer providence ÔÇô nothing but luck. Having observed how the BDP elites have steadfastly held to power by “subordinating the law and the constitution to the political expediencies of the time”, it would not be uncharitable of the Party to say that the onus resets on it to prove that the omission was not a political machination, but a genuine error. Phandu Skelemani, then Attorney General, who now dons a BDP cap, is there to explain.

By and large, Molake has correctly identified the Constitutional provisions relevant to the debate undertaken. He has rightly highlighted the fact that when the Vice President assumes a presidential vacancy, under Section 35 (3), pending the convening of Parliament to elect a President, his powers are limited in that he cannot revoke the appointment of the Vice President or dissolve Parliament.

He posits that there is no “real’ automatic presidential succession in Botswana. Well, perhaps, a black ÔÇô letter lawyer might agree with this proposition, bearing in mind that the Vice President only holds fort, with limited Constitutional powers for seven days (at most), before Parliament convenes to elect a fully empowered President. However, as a pragmatist, having regard to past experience and the reality of a single party dominance, Botswana is an automatic presidential succession system. It is nevertheless more a question of labeling, born of perception, which should not distract us from the real issue that, following a vacancy in the high office Parliament must convene within seven (7) days to elect a successor.

However, I entirely break ranks with Molake when he suggests that an option exists in terms of the Constitution either to have until the next general elections a Section 35 (1) President (i.e. one who assumes the presidency with limited powers) or a Section 35 (4) (one elected by Parliament and endowed with full presidential powers)

One cannot phantom a situation in a constitutional democracy that would entrench in the Constitution an uncertainty of such proportions. Constitutions are meant to be prescriptive ÔÇô they provide fundamental law to which adherence is not optional. Therefore, to assert, as Molake does that: “as a nation we have a choice, to have a President with limited powers for seven days as per Section 35 (4) or a President with limited powers up to the next general elections as per Section 35 (1) and Section 35 (3)” (sic), is preposterous.

Now that Mogae would be or has already handed in his resignation, the right thing for people at the Government Enclave to do is to ensure that Section 35 (4) is fully complied with. In this connection, Parliament must convene within seven days of such resignation to elect a new President. In the meanwhile, during the seven-day window, Khama, as Vice President will assume the functions of President, albeit with limited powers.

It is interesting to note that in terms of the Constitution, any Botswana citizen, who qualifies to be President, is entitled to contest the elections, provided that, he secures the support of at least ten members of Parliament. Such candidate need not necessarily be a sitting Member of Parliament. In addition the ballot to be taken in Parliament would be secret, thus obviating any fear for reprisals and political witch hunting after the fact. The incumbent would be the presidential candidate who garners more than one half of the total number of persons entitled to vote for this purpose.

In recent times, much to the chagrin of President Mogae and his deputy, Khama, the nation has witnessed a re-invigorated BDP backbench, which, together with the opposition Members of Parliament, has taken the doctrine of separation of powers to new heights. As a result, controversial and non-consensual pieces of legislation have been sent back to the drawing boards or entirely frustrated. The greatest beneficiary has been the country’s democracy. A rare opportunity has now presented itself with Mogae’s resignation. Parliament can seize this moment, when it is convened for purposes of electing a new President, to project the general populace dissatisfaction on the imposition of Khama as President by the ruling elite, under the discredited doctrine of automatic succession.

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