When Botswana Congress Party was formed in 1998 one of the first things the party did was to write the Democratic and Development Programme in January 1999. The document sets out the policy framework of the party and articulates the problems confronting the Botswana society and the party’s vision for addressing them. The party undertook to modernize Botswana’s democracy and promised extensive constitutional reforms.
Under the Botswana Democratic Party democracy has stagnated. The country is caught up in a time warp. The country is trapped in the 1960’s time capsule as the BDP steadfastly clings to the 1960’s constitution and other laws passed on by the colonial masters. Even laws which have no place in a modern state, laws which serve no useful purpose and laws which are obsolete are tightly held on to by the current ruling party. Former Vice President Mompati Merafhe trivialised an important matter such as the opposition’s demands for constitutional reforms by saying “if it ain’t broken why fix it.”
The focus is currently on the Delimitation Commission that has just recently been appointed by the Judicial Service Commission in terms of the constitution of Botswana. The commission is currently going around the country conducting public hearings on the delimitation of constituency boundaries.
I am of the view that the constitutional provisions, Sections 64 and 65 dealing with the delimitation of constituencies has no place in our constitution. The two sections should have been repealed as soon as the Independent Electoral Commission (IEC) was established. All the authority power and functions under sections 64 and 65 should have been transferred to the IEC. The judiciary has no role to play in the affairs of elections where there is an independent elections body. The judiciary ought to concentrate on its own mandate.
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The Electoral Act gave the IEC the power and function to delimit the wards but the function of delimiting constituencies to the Delimitation Commission remained with the Delimitation Commission. If the IEC can be entrusted with powers to delimit wards so too it should be given the power to delimit constituencies. In fact this is what happens in other modern democracies. I have witnessed this personally in Maricopa Elections Board in Phoenix, Arizona in the United States in 2010 when I visited the US under the International Visitors Program. There the Elections Office has a permanent department dealing with delimitations. In fact Botswana ought to go to countries with modern democracies to bench mark on such important matter as the conduct of elections. There is a view that under the current set up elections can be won or lost at delimitation.
Under the constitution the Delimitation Commission can be appointed by the JSC by virtue of two occurrences. The first, according to section 64(2) (a), is when parliament has made provision altering the number of seats in parliament. The second occurrence, in accordance with section 64(2) (b), is when a comprehensive national population census has been held.
In either case one wonders how the process of kick starting the appointment of the delimitation commission is commenced. Since parliament does its business in public its business is put on the order paper in parliament. On the other hand the JSC does its business under a veil of secrecy. Nobody knows when and where it sits and what its agenda is. This is a very important question especially in light of what recently transpired before the appointment of the delimitation commission.
The Member of Parliament for Okavango, Hon. Bagalatea Arone, presented a Bill before parliament for the provision of altering the number of seats of elected representatives in parliament. He did this in terms of section 64(2) (b) of the constitution. The bill was deferred to the next session. It was during this period that the JSC appointed the Delimitation Commission in accordance with section 64 (2) (b).
I am suspicious about the timing of the appointment of the Delimitation Commission. Parliament was already seized with the bill so there was no need for the JSC to appoint the Delimitation Commission before the conclusion of the matter in Parliament. One wonders whether the appointment was done to pre-empt the bill placed before parliament by Hon Bagalatea Arone, which sought to increase the number of seats of MP’s to Sixty three, or was it purely a coincidence. Is it genuinely a case of one arm of the government not knowing what the other one is doing?
At this juncture one would be tempted ask of what importance is it whether the delimitation commission was appointed by virtue of section 64(2) (a) or section 64(2) (b). Its importance is very significant. The difference between whether the appointment was made in terms of one section and not the other becomes apparent when one has regard to sections 65 (2) and 65 (3) of the constitution. Section 65 (2) provides that that the boundaries of each constituency shall be nearly equal to the population quota. The definition of population quota is given under section 65 (3) which says that to arrive at the quota you divide the number of inhabitants of Botswana by the number of constituencies into which Botswana is divided under section 63. Section 63 states that Botswana shall be divided into as many constituencies as there are elected members. Currently there are 57 elected members. To arrive at the population quota you divide the population of Botswana by 57.
The effect of the definition of “population quota” is that unless Botswana goes the route under section 64(2) (a) which is for parliament to alter the number the number of seats, it is not otherwise possible to alter the number of seats. The JSC opted to follow the section 64(2) (b) route which does not give the Delimitation Commission the option of increasing the number of constituencies.
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Batswana making contributions before the Delimitation Commission can therefore not call upon the commission to either increase or decrease the number of constituencies. The commission simply does not have the power. All the commission is empowered to do is alter the constituency boundaries, taking into account the population quota.
We are not surprised by this because there have been powerful voices from the ruling party saying that due to the recession the number of constituencies should not be increased. Member of Parliament for Okavango, Bagalatea Arone’s bill was therefore not what was wanted by the powers that be and so the JSC quickly moved in to overtake his motion so that a different result may be achieved.
Botswana’s constitution does not directly make provision for separation of powers of the different arms of the state. The separation is implied. This gives rise to the ruling party taking advantage of the situation. Often it would appear that there is a blur between the three arms. Instead of having a clearly and distinct separation between the different arms of government Botswana has one big government system. An obvious example of this blur is the fact that the Attorney General is the principle legal advisor of government, sits in cabinet as advisor to cabinet, is advisor to parliament and also sits in the Judicial Service Commission. This being the case we cannot expect a divergence of opinions being given by the same Attorney General to Cabinet, Parliament and the Judicial Service Commission. It is an anomaly that ought to be corrected because it creates a conflict of interest between the three arms of government.
With respect to the issue of the appointment of the Delimitation Commission the “government system” found nothing wrong with the JSC taking over the determination of the appointment of the Commission when parliament was stilled seized with the matter. The Attorney General as advisor to parliament, cabinet and member of the JSC was part of the decision to appoint the Delimitation Commission. This is a mockery of Botswana’s democracy.
I attended the hearing of the Delimitation Commission in Gaborone this week. There was a groundswell of opinion that Gaborone needs two additional constituencies based on the population of the capital city. It seems that the voice of the people will not prevail. What then was the point of calling Batswana to make their input?
