The colonial constitution of Botswana gives the majority party the right to form Government. The government itself is constitutionally mandated to govern the country in accordance with law of the people. This governance, and passing of laws of the people necessarily, without any doubt, entails that the governed , who are also the subjects of all laws to be made, must be consulted before fundamental decisions may be made.
Fundamental decisions means, for example: (i) decisions to pass any law. Surely, the legal principle “ignorance of law is no excuse” cannot seriously be real or just where the subjects of law(the people) have not been consulted before law making.(ii) decisions to make governance policy.
Policy is like law. It regulates a people’s lives. Normal people expect to have a say in any matter that is likely to affect their daily lives. They deserve to know and to decide what is good or bad for them in a system of governance that truly represents the people. Otherwise they fall into shock when they are expected to radically alter their lives to accommodate legal changes they were not made party to. A western democracy is said to be one such system that truly represents the people.
Therefore our colonial constitution must necessarily demand consultation on policy making. (iii) Decisions as to how the national resources are to be distributed and utilised (iv) Decisions concerning international relations which bind Batswana to treaties, conventions and various other international commitments including the commitment to go to war. The culture of Botswana prior to and post 1966 is a culture of consultation called morero. It has lived with Batswana through time. It has been the very foundation of traditional governance in African societies. It has survived time and proved to be the best form of government ever.
The USA constitution is founded on this same value of morero although recent times have seen the almost total collapse of the value under the Bush administration. The people in their various States are now earnestly claiming back this value through movements like the tea party movement.
Consultation (morero) is the value that gives life and authority to ALL laws and policies. It is the source of legitimacy for any form of governance or rule over a people. Without consultation, such laws and policies are as effective as having never been written. Without consultation government lacks legitimacy. The reality of Botswana is that if one were to carefully go through all the laws and policies of the post “independence” Botswana, and carefully study the procedures undertaken leading to the passing of any such law and policy, he will be shocked to discover that there is very little evidence, or no evidence at all in some cases , of a consultation process with the people of Botswana before such laws and policies were made.
Our colonial constitution is no exception to this defect. How do we know that ? We know this for certain because the post colonial government of Botswana has made a determined effort since 1966 to eliminate the institution of Bogosi. In so doing, the government blindly cast away fundamental aspects of our Setswana culture which go hand in hand with the institution of Bogosi. These cultures included moreero- consultation. Bogosi has always sat at the very heart of community consultations everywhere in the world. It is the cultural vehicle through which consultation is achieved by Batswana .Perhaps European societies may have their own vehicles deriving from their cultures, but for Batswana this is what they know.
An independent observer is more satisfied hearing that the community has been consulted when he is told that the kgosi was involved, with or without the local or national politician, as opposed to being told that the local politician was involved without participation of a Kgosi. These are the truths and realities of Africans. Once the government threw out morero out of the equation of Rule, government seized to carry legitimacy, as all the laws and policies passed in the absence of consultation suffered illegality under constitutional scrutiny of morero. It is often assumed that our elected leaders go around consulting communities who elected them before any law or policies is made and then present the opinions of their constituents in parliamentary debate.
We know that such does not happen in Botswana. The truth is that members of parliament do not carry out pre legislation consultations with the community.
The truth is that members of parliament are either asleep or skiving during parliamentary sessions. When they do debate in those rare occasions, they speak about matter of which they have not consulted or sought the opinions of their constituencies.
I have often heard members of the community pass this comment that “who sent that member of parliament to speak as he does because his opinions do not represent our values.” I hear this lot especially in respect of Botswana’s international commitments. People ask “who sent the minister of foreign affairs to say Batswana are going to arrest the president of Sudan? Who authorised the foreign affairs minister to bind Batswana in contract to a foreign country.
Who authorised cabinet to allow Americans to camp their army in our territory through the Africom project? Who authorised parliament to throw us Batswana into huge debt without hearing our views? Who authorised the minister of foreign affairs to sign or refuse to sign a particular convention?
Why did he not solicit our views before making such decisions? Surely shareholders must have a say before their company is thrown into huge debt. Does this mean that parliament or cabinet can throw us into war with another country without consulting us?
Does it mean that they can sell our entire land to foreign forces without consulting us? It becomes scary to think of these scenarios but they remain real life scenarios for so long as we falsely believe that parliament has a blank cheque to do anything they please about the people without consulting them.
That certainly cannot be correct, even to the most naive of intellectual critiques or the least western educate simple Motswana man in the villages. The end result is that we are governed by a body of false laws and policies which lack legitimacy of law under constitutional scrutiny because one ingredient went missing in the law/policy making process- morero/consultation.
The situation is worse than it appears for the law makers because not only do they fail to consult but they go further to communicate existence of the law to the people in a language other than language of the people and in a procedure (government gazette) which also is in a language other than that of the people. Worse is that the government gazette is not accessible to the majority of the subjects of the law.
There are very few laws made in Botswana which carry evidence of consultation and may survive this constitutional scrutiny. When the post colonial government relegated Bogosi to the gutters of existence they put in place a system (parliament) that was not morally mature to sustain a culture of consultation and maintain a legitimate constant reach with the people.
The failure arises naturally from a very simple fact of life that falsehood begets falsehood. When all this went on, all those responsible were not aware that they were creating a black hole in the very foundation of all laws of Botswana which one day would return to haunt them as it plunges this country into a constitutional crisis. I believe that when faced with little choices anybody may successfully challenge the legitimacy of any man made law he is subjected to in Botswana, under the constitutional scrutiny of moreero. This is to exclude the natural laws of god such as do not steal, do not kill, do not lie and so forth universally found in the cultures of all societies of the world.
In other words you may not defend a murder charge on the basis that you were not consulted when murder was made a crime under the penal code for the simple reason that murder has been a crime since the origin of mankind. You may however challenge the legality of a law that criminalises something that was not a crime before independence or colonial rule on the basis that your community had no say in making of such law therefore it cannot be a peoples law nor binding on them and you.
Consequently such law lacks the constitutional authority of law- consultation. The citizen would be guided to read carefully the parliamentary debates as recorded in the Hansard and thereafter go beyond the Hansard and beyond parliament to the people to see if they were consulted.
I dare any present and past member of parliament to produce proof that he carried out any consultations or obtained the views of his constituents before any law, policies or international commitments of the country were made. A high court judge faced with this difficult challenge of deciding the legitimacy of law under this scrutiny will have very difficult choices to make.
Either he decides that the law lacks legitimacy and set precedent for the demise of all other laws or he decides that the national elections give members of parliament a blank cheque to pass any laws and make any policy without consultation.
The latter surely will sound ridiculous to almost all subjects of law thereby questioning the integrity of the judiciary itself if it were to reach such a conclusion, yet another layer of the constitutional crisis. It is my hope that as this country transforms into a proud nation of truthful living, someone will take a stand against any post ÔÇôpresent colonial law to say he does not recognise it because it is illegal; illegal because there is no evidence that Batswana were consulted.
The people take no ownership of the law therefore it is not theirs. It is time that we challenge the very false foundation on which Botswana was formed because such foundation has never been cast in stone. It is changeable.
We should never be fooled to believe that consultation before law making is a difficult task or a procedure that may easily be dispensed with. It is the most important right we the people can ever demand of our rulers. It is indispensable.
Let us not treat it lightly. Let us not let our politicians get away with this crime against the people. “YOU CAN FOOL ALL THE PEOPLE, BUT YOU CANT FOOL THEM ALL THE TIME” Ke nako!