Saturday, April 4, 2020

Our Constitution: an enemy or friend to democracy?

Understanding democracy as a system that affords the people an opportunity to choose their leaders directly, we have to accept that ours is, at best, only an approximation of a real democracy. This is primarily because the occupant of the highest office in the land (the President) wields almost absolute power and yet the people have no say in who must occupy this office.

Under the current set up, the closest that the people ever get to elect the president is by voting for members of parliament who in turn vote for the President from within the party with a majority in parliament.

Moreover, the President can literally decide anyone of his choosing to be the next president, since he is the one who appoints as vice president anyone of his choice.

Since, according to our Constitution as it stands today, the Vice President automatically becomes the President in the event of retirement, resignation, incapacity, death or end of term of an incumbent president (assuming the ruling party wins the following elections), it means that ours is a “democracy” in which a president who does not necessarily enjoy a popular mandate can actually decide who the next president of the country will be, simply through the appointment of a vice president. In fact, our situation in Botswana today is a case in point.

It is interesting and significant to also note that among the powers that the president wields is the exclusive prerogative to appoint members of the “ruling council” namely, the Cabinet.

These are the individuals who are given executive authority to formulate policies regarding the day-to-day running of the country (via the various Ministries), and generally to implement the same policies, presumably for the sake and in the interest of the citizens.

Thus, in Botswana, an unelected president and his personally appointed Cabinet wield power to make decisions that can have an immediate and profound effect on the lives of the citizens, including signing treaties with other countries and world bodies, some of which may commit (and sometimes jeopardize) assets and resources that belong to the citizens of the country.

Given the extensive powers that the President wields over the people, the fact that he does not enjoy a direct popular mandate does not auger well with the principles of democracy as the rule of the people by the people for the people. It is also my view that in light of the fact that members of Cabinet assume office not through a direct mandate by the people, but through some indirect route involving (strictly speaking) appointment by an unelected individual (the President), democratically speaking their powers are incongruent with the manner in which they attain office. It is for this reason that the MPs (the true representatives of the people) have a vital role to play through parliament. Having considered this matter, I find it amazing that for the past forty years plus we have had such a blatantly flawed system in place. As long as there is room for improvement, change is always a good thing, provided that such change aims at achieving such improvement.

My proposal is therefore that:

Some of the powers exclusively reserved for the Office of the President should be devolved to Parliamentary Oversight Committees. The obvious reason for this is that it affords parliament an opportunity to apply its collective wisdom in a democratic fashion, to issues that affect and impact on the lives of The People.

The People must be given the opportunity to elect their President directly

The Office of the President (OP) should retain powers such as would have been determined by Parliament to be in the best interest of the nation if such powers remained at OP.

The requirement is that the constitution be amended to ensure that our democracy becomes more robust. It is important for us to remember that our Constitution is actually not our own, but rather one adopted from the British. As a self-respecting people, we can not afford to consider this “colonial” Constitution to be sacrosanct. We should amend it to suit our best interests as a sovereign nation.

The Principle of Separation of Powers

The three branches of government in Botswana were meant (at least theoretically) to perform separate and distinct and yet complementary functions in the execution of government. Each must be accountable to the other two, but must be independent of them in the course of executing its mandate. The principle of independence here is cardinal. Lack of independence by any one of the branches greatly compromises its effectiveness in carrying out its mandate. In fact, the very health of our democracy hinges on the independence of each one of these three branches of government. The extent to which this independence is compromised is a direct indicator of the extent to which our democracy, good governance and rule of law are compromised or endangered as well.

Conflict of Interests: Ministers as MPs

With the understanding of the principle of Separation of Powers among the three branches of government, let us examine what actually obtains on the ground in Botswana. Our constitution prescribes that Cabinet Ministers and their assistants shall be appointed from among the members of parliament. By virtue of such appointment, the ministers, therefore, automatically become members of two branches of government (Legislature and Executive) simultaneously. In consideration of the roles of these two branches of government, a moment’s reflection reveals a glaring conflict of interest here.

What becomes of the minister’s role as an MP or MP’s role as a minister? How does he/she play one role without necessarily sacrificing the other? A minister can not play his/her oversight role on the Cabinet when at the same time such as minister is bound by the principle of collective responsibility to Cabinet by virtue of being a member thereto. It is, therefore, not surprising that in accordance with this principle, the erstwhile audible (and I must say substantive) voices of Mr Kwelagobe and Mr Kedikilwe on behalf of the people, are now silent in that regard, and whenever one hears them, their tone is now only in promotion of government policies. Conversely, the likes of Duke Lefoko and Boyce Sebetela who, when in Cabinet, were eloquent and zealous advocates for government policies, are now very vocal critics of the same.

This apparent “hypocrisy” is a natural result of the current system, whereby ministers are appointed from parliament. In terms of function, this system has the effect of “converting” the representatives of the people into “lieutenants” of the president. In accordance with the principle of collective responsibility, these MPs can no longer speak on behalf of the people against government even when such a need arises. A false assumption is that government always does things for and in the interest of the citizens. If that were so, then by protecting the interests of his/her constituents (and as a legislator, the nation at large) the MP-Minister would also and always be in agreement with government (Cabinet), and, therefore, no conflict of interest would ever arise. However, the reality is that the interests of government and national interests are sometimes at variance. In my considered view, the modus operandi of privatisation is a case in point. Thus it is often necessary that a member of parliament stands against government in defence of The People. A member of parliament who is also a member of Cabinet can not do that. The principle of collective responsibility forbids him/her. Appointing an MP into the Cabinet is, therefore, (intentionally or not) effectively a betrayal to the electorate, as their representative is suddenly rendered voiceless if a situation requiring the electorate’s defence against government were to arise. Thus appointment of Cabinet ministers from parliament is effectively a weakening of parliament in the manner pointed out above.

Another way in which the system of appointing Cabinet ministers from parliament has a tendency to “silence” MPs and, therefore, weaken parliament is that as things have been since 1966, to be appointed into Cabinet as a minister has always been a promotion. Ministers enjoy tremendous power as well as very generous benefits, thanks to the citizens through the national purse. As a result, MPs have always coveted the positions of ministers. But to be appointed a minister, it helps to have the favour of the President.

To be critical of government, however positive or necessary, generally has the effect of removing one from the President’s “book of life”.

Being aware of this, and also being covetous of the elevated seat of Minister, MPs have tended to be very circumspect in their “debates” in parliament, lest they commit the unpardonable sin and miss glory land.

The result has generally been acquiescence and shallow debates of issues by MPs, who would be careful not to forget to sprinkle the president’s budget speech with a few poetic praises. The interests of the people sometimes were sacrificed as a result. It is for this reason that I lend much respect to those members of parliament who have been principled, selfless and courageous enough to stand up and speak unequivocally for not only their constituents, but for all Batswana, with full knowledge of the fact that they had essentially destroyed their chances of being appointed Cabinet ministers.

Batswana should be proud to have such robust sons of the soil. Evidently, to these MPs, glory land is in a place other than Cabinet.

It is where the interests of their constituents and fellow Batswana are found.

Also, among the major factors responsible for an MP’s re-election into office is the number of development projects that the electorate perceive to be for their welfare. These include roads, schools, hospitals, post offices and others. It is significant that what developments are done always been the purview of cabinets’ prerogatives. It is cabinet that decides what developments will take place, where such will take place and when they will be carried out. Given that these ministers also hold elective offices and as such have a vested interest in the votes of the electorate, it is clear that the system we have used for the past four decades has given Ministers a vast opportunity (if not licence) to use their powers for their own political interests. Whether or not they have actually done so, is a matter yet to be established.

The inescapable conclusion from the fore-going considerations is that the principle of Separation of Powers can not be exercisable simultaneously with our current system of appointing ministers into cabinet and the powers that they are then vested with by virtue of their positions. “But it is a constitutional prescription that we appoint ministers from among the MPs”, you might say.

True. But we must consider the question; “Is the principle of separation of powers important in a democracy?” The answer to that question is an emphatic “YES”. Therefore, since the Constitution prescribes a procedure that undermines the principle of separation of powers by introducing a conflict of interest as it does in the way our ministers are appointed, then it is a foregone conclusion that (at least on that point) our constitution is not good for our democracy and therefore there is need to amend it accordingly. Remember, there is nothing sacrosanct about the Constitution, especially one that was prescribed to us by outsiders who (as is evident from the same constitution) ensured that it protected their interests first before ours.

Proposal:

The President should appoint the members of his administration (ministers) from outside of parliament. Such individuals should be appointed based on the relevance of their skills, training and profession, to ensure that they are best equipped to tackle the technical challenges of their respective Ministries as they serve the nation.

The Ministers’ benefits in terms of remuneration and privileges must be comparable to those of the members of parliament. Presently, there is too much of a disparity between the two. Other than it having been a tradition since independence, there is no immediately obvious reason why there should be such a vast difference between Ministers and MPs in terms of remuneration and other benefits, especially as we The People pay them both.

There are some obvious benefits that this arrangement would bring to our democracy;
It would ensure a real separation of powers between the Executive and the Legislature and eliminate the conflict of interest that currently exists for those who are both Minister and MP simultaneously.

It would empower the Legislature to perform its oversight function more effectively, as MPs would not have compromise the interests of their electorate by being “good boys and girls” with the hope that they will be looked upon with favour by the President, thereby standing a chance to be “promoted” to a cabinet post.

It would help the cabinet members to fully devote their time to role as CEOs of their respective ministries by relieving them of MP responsibilities, and thus serve the nation more efficiently.
We must amend our Constitution accordingly so that it serves us as we would prefer.

There are many areas in our constitution that need to be amended in order for it to truly serve the interests of the people of our country, but we shall discuss them in due course, God willing.

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