Lediretse Molake
Even though our independence leaders sought to establish a republic and our current leaders profess to be republicans, they have both been unable to break free of the influence of chieftainship.
Section 86 of the constitution states that Parliament shall have power to make laws for the peace, order and good government of Botswana.
Parliament has a constitutional duty to ensure peace in this country. One would, therefore, expect the state of the nation address to make reference to peace in Botswana. Can we be said to be at peace when our people fear for their lives and property and cannot venture outside after sunset.
Parliament has a constitutional duty to ensure order in the country. Can we be said to have order when cabinet and the public service have to fight in public over the leadership of a state owned entity like PEEPA.
Parliament has a constitutional duty to legislate for good government. Can we be said to have good government when a prospective trader has to travel from Tutume to Tonota to get a hawkers license?
According to Section 47(3) of our constitution, the vesting of executive power in the president does not prevent parliament from vesting functions on any other person other than the president.
Effectively, if parliament wants, it can run a parallel executive. If parliament forms an opinion that the executive cannot and is failing to maintain peace in the country, it can vest that function on another person other than the president.
If parliament forms the opinion that it wants a report on the implementation of government projects and the executive fails to submit such a report, parliament can vest the function for reporting on implementation of government projects on any other person or authority and there is nothing that the president, vice president or cabinet can lawfully do to resist.
According to Section 48(3) even though the president has power to determine the operational use of the armed forces, parliament may regulate this if it so wishes. Thus, if parliament is of the view that there is a need in order to ensure peace to deploy the armed forces to the towns and villages, it can do so and there is nothing the president can do to stop this.
Section 50 of our constitution states that cabinet shall be responsible to the national assembly for all things done by a minister or the vice president. Ministers are accountable to the national assembly for their actions and decisions and not to the president.
The fact that the president appoints them does not mean that they are answerable to him. Thus, where parliament is unhappy with the performance of a minister, it can demand that the president drop that minister.
According to Section 118 of the constitution, the executive needs parliament’s permission to use public funds from the Consolidated Fund.
The executive presents a bill to parliament to get money. Parliament is in a position to lay conditions for government expenditure at this stage. It can demand and legislate that more funds be allocated to the police. Parliament is the lawmaker and controller of the purse.
The president is not.
If parliament wants its proceedings to be broadcast and the executive is unable to do so, parliament can vest the function on any other party, even one of the private radio stations. If parliament forms the opinion that the executive is failing to formulate a strategy for economic diversification, it can vest the function on any other party. Parliament need not rely on the executive appointed economic advisory council.
According to Section76 of the constitution, the national assembly may regulate its own procedure. The president can only make a request, he cannot instruct parliament how to regulate its procedure.
There is nothing in our constitution that suggests that parliament can only exercise its powers through formulating laws.
This means that a resolution by parliament is enough for it to vest a function on any other party other than the president. This process avoids the president’s power to veto laws.
Contrary to popular myth, the problem in Botswana is not really the extensive powers of the president, but mediocre politicians who masquerade as members of parliament, and, by extension, the nation that allows political parties to present what are effectively constitutionally illiterate people as candidates for office of Member of Parliament.
From the above it becomes clear that the president is a junior partner in government. Parliament, as the senior partner, should set the tone. Parliament can intrude into functions of the executive.
The principle of separation of powers does not take precedence over our constitution. The nation is not interested in the opinion of the president, but the informed assessment and projection of its elected representatives.
In a democracy, the majority voice must prevail. In Botswana the majority voice is represented by parliament and not the executive. To allow a situation where the voice of the executive prevails over that of parliament is to fail to uphold democratic norms and to disregard our constitution.
*Lediretse Molake – a lawyer and practicing engineer is also the former president of the Association of Citizen Development Consultants
