There are two provisions of our constitution that link the candidacy of an elected member of the National Assembly to a voting colour and symbol. These are Section 32(3)c dealing with the election of a president, where such presidential candidate has been allocated that colour and symbol, and Section 58(2)a and 58(2)b which link the candidacy of an elected member of the National Assembly by operation of Section 44 of the Electoral Act.
Section 62 of the constitution details features that disqualify a person from being elected to be a member of the National Assembly. These are that the person must not have allegiance to a foreign power or state, that he must not be insolvent and or bankrupt, that he must not be certified insane, or sentenced to death or imprisonment for a period in excess of six months. Thus even if one otherwise became a candidate under the Electoral Act, a person may be disqualified from being elected a member of the National Assembly.
The disqualifying features set out in Section 62 of the constitution become applicable after election by operation of Section 68 of the constitution, with the addition of a conviction for an election offence. The scheme of our constitution ties the disqualification not to candidacy but to eligibility to be elected. The introduction of a vacancy without any relationship to eligibility to be elected is inconsistent with the scheme of our constitution.
The addition of a conviction for an election offence at Section 68, by the framers of our constitution, when it was not a disqualifying feature under Section 62 of the constitution, is justifiable on the basis that it is generally not allowed that a person who commits an offence under a law can have such offence ignored when they seek some benefit under such law. The idea after all is to discourage violation of the law. This is another limp of the scheme of our constitution. The introduction of a vacancy without violation of the Electoral Act is clearly a departure from this limp of the scheme of our constitution.
The disqualifying features in Section 62 of the constitution do not make reference to membership of any political party, group of electors, or colour and symbol. The introduction of a vacancy due change in political party affiliation, after election, is a radical departure from the scheme of our constitution in that there is no relationship between creation of the vacancy and eligibility for election. It is like a bolt from the blue having no basis in how Sections 62 and 68 of the constitution treat the issue to eligibility.
In any bye election to fill the vacancy of a member of the National Assembly, Section 32(3) of the constitution does not come into play since there is no presidential election that will be taking place. The link between a candidate and any party colour or symbol in terms of Section 32(3) is a once off event during a general election. That is why the eligibility for election to the National Assembly, post the election of a President, does not affect the results of the presidential election.
Section 91(3) of the constitution provides that Parliament shall continue for five years unless sooner dissolved. Section 68(1)a on vacancy in the seat of a Member of the National Assembly upon dissolution of Parliament therefore has a twin. Section 76(1) gives Parliament power to regulate its own procedure. Section 68(1)b on vacancy in the seat of a Member of the National Assembly upon being absent from sittings of the Assembly, as prescribed in the rule of procedure of the Assembly therefore has a twin. There is no provision that is a twin on a vacancy that arises from floor crossing. It is a constitutional oddity.
It is important to note that in terms of Section 63 of the constitution it is the constituency that returns a member of the National Assembly. This means no political party or section of electors, can in terms of our constitution claim to have returned a member of the National Assembly.
The exercise of the right to vote does not require disclosure of political party affiliation. To introduce political party affiliation when it is not an eligibility requirement for the voter and the candidate, is a serious and unacceptable assault on the secret ballot. It is an attempt to link the vote to a political party or section of electors, something that has no basis in our constitution. In terms of our constitutional scheme eligibility is the real link between a candidate and the electors, not political party affiliation.
There have been statements that people were consulted at the kgotla, or public hearings were held, and even the House of Chiefs expressed its support for the proposed law, and their view was restated inside Parliament. With all due respect to our Dikgosi and members of the public, their views cannot be a substitute for the view of the constituencies that returned the members of the National Assembly. What the alleged consultation and the views of our Dikgosi and members of the public demonstrate, is a failure to appreciate that we are a republic with a constitution that delimits the distribution of power that underpins the state apparatus. It is instructive to note that the constituency is made up of the electors, not Dikgosi and each and every resident of a constituency. A consultation process that ignores this fact is with respect flawed.
I know that in Botswana there is little respect for group rights, but Section 63 of the constitution clearly creates a group right for the electors of a constituency. This group right is not subject to political party affiliation. I think the original motion dealing with floor crossing, though well intentioned, was based on assumptions premised on failure to appreciate that it is the constituency that returns a member to the National Assembly, and not a political party or section of the electors.
In terms of Section 89(3)b and Section 89(5)b of the constitution, any alteration or modification of Sections 57 and 63 of the constitution cannot be passed by the National Assembly or assented to by the President unless it has been submitted to the electors, and supported by a majority of such electors. What does modification under Section 89(5) mean? To modify means to change. There is no qualification that the modification should be only by amending that provision, and excludes modification by amending another provision of the constitution, for the constitution uses the word “includes” suggesting there are other modes for modifying a provision.
Does amendment to Section 68 dealing with floor crossing alter or modify Sections 57 and 63 of the constitution? The start position is to understand that the constitution is as a rule, to be read as a whole. It is quite clear that the constitution does not require a referendum for amendment of Section 68.
In terms of Section 57 of the constitution Botswana shall have a Parliament which consists of the President and a National Assembly. The National Assembly shall consist of 57 elected members and 6 Specially Elected members, who shall be elected in accordance with the constitution and the Electoral Act. Please note the absence of any reference to political party affiliation. In 2019 constituencies in exercise of their right under Section 63 of the constitution returned members of the National Assembly. No section of electors can claim to have returned a member of the National Assembly. Further they cannot prove this, given that we are told it is impossible to know how a particular voter cast their ballot. Even if they could such would be irrelevant by virtue of Section 63 of the constitution.
The amendment modifies Section 57 of the constitution in that it effectively renders the section to read “There shall be a Parliament of Botswana which shall consist of the President and elected members of the National Assembly, anyone of whom will lose their seat should they change their political party affiliation during the lifetime of Parliament” Such a modification needs a referendum as required by the constitution.
The amendment modifies Section 63 of the constitution in that, having returned a member of the National Assembly, the results were in much the same way as those of the presidential election, under Section 32 of the constitution, set. I do not believe it is lawful to change the results of an exercise of a constitutional right without being deemed to have changed the right creating provision itself.
Does the amendment have retrospective effect? We have long passed the eligibility stage. The constituency has exercised its right to return a member of the National Assembly. The constituency expected its elected member to have a five year tenure, subject to existing constitutional provisions. In my view the consequences of the elections cannot be altered without consultation with the constituency. The constituency can only express its view through a referendum. The floor crossing law is not be worth the paper it is written on.
It is never good law making to introduce a conflict or oddity in the law. The floor crossing law has introduced conflict between constituency rights and party political interests, moved too far away from the scheme of our constitution, and I believe unnecessarily and ineffectively so.