Monday, September 21, 2020

Setting the record straight!

Undoubtedly, political coalition is one of the strategies that, if properly harnessed, could yield substantial political rewards. For one, politics is, but a game of numbers and logically, pooling of numbers, in terms of members skewed across the partisan divide, would create a groundswell of support.

Coalition also has the effect of boosting public morale and confidence in political parties, which engage in such relationships. It gives the electorate hope that, because of the combined effort of otherwise disparate parties, the coalition would be able to effectively tackle its opponents. This is particularly true in a polity where owing to historical experience people have gotten accustomed to single-party dominance for a prolonged period of time ÔÇô a situation that is true for Botswana.

Once the morale and confidence of the electorate is uplifted, the incidence of voter apathy is reduced and the peoples’ enthusiasm in participating in the electoral process becomes charged. It is a truism that in all parliamentary democracies, voter apathy benefits mostly the incumbent party. In Botswana, the perennial splintering and tussle that has characterized the politics of the main opposition party ÔÇô the Botswana National Front ÔÇô has not been complimentary to the quest for enhanced public participation in politics. To many, who are not involved with any political party, being part of the opposition is a risk-fraught occupation; an unrewarding and ungrateful vocation.

The beginning of the year 2006 heralded renewed anticipation on the part of the nation, that at last the opposition had become of age and infused the wisdom of unity. With profound enthusiasm of unprecedented proportions, four of the Botswana opposition parties announced that they were engaging in cooperation talks. The common purpose being to provide a united front formidable enough to unseat the Botswana Democratic Party (BDP), whose stranglehold on power has remained unbridled since independence in 1966. Buoyed by the recent Gaborone West North by-election, in which, in a rare show of unity, a combined opposition effort saw BNF’s Otsweletse Moupo triumph to Parliament. Later, now in the comfort of his elevated position as Leader of the Opposition in Parliament, Moupo was to deny that his victory was as a result of the combined opposition effort

To an ordinary Motswana who has become wary of the uninterrupted BDP rule, a state of affairs that has resulted in inept developmental programs and bureaucratic complacency that have failed to deliver him from abject poverty, unity of the opposition was (and still is) an imperative necessity. It mattered little to him as to how this was achieved and what label was attached to such unity. However, the process was to enter into a phase of polemics. Concepts on models of cooperation, completely alien to an ordinary Motswana and which, cannot not be found in common Setswana diction, started flying thick and thin.

The BNF, it being the largest of the participating parties had obviously entered the process with the bargaining leverage of size and its historical standing of being the mother of a good number of other opposition parties, including the Botswana Congress Party (BCP) and its newly found group member, the New Democratic Front (NDF). Alliance, it posited, is the ideal model of cooperation. Soon, the Party’s then Secretary for Political Education and renowned ideologue, Dr Elmon Tafa, started writing lengthy pieces in the newspapers rubbishing an electoral pact as a model that could bring about regime change.

BCP, Botswana Alliance Movement (BAM) and Botswana Peoples Party (BPP) had on the other hand embraced electoral pact as their compromise model of cooperation. It is doubtful that, as it retreated to Lobatse for its 2006 Annual National Conference, the masses of the BNF had a clue on what each of the touted models represented. But it would appear that the big guns at the Party could not have any form of cooperation unless “smaller parties” aligned to it and they had their day when the Conference passed a resolution of, “alliance or nothing”.

The BPP later pulled out of the three-party talks, curiously somewhat advancing an argument similar to that of the BNF that the BCP and BAM should defer to it for being the oldest party. The latter parties soldiered on and sealed their historic electoral pact. But even then, skeptics continued to cast aspersions on the utility of this model, citing legal impediments. It has been argued that an electoral pact cannot, in terms of the existing legal framework, deliver a change of government. This argument is untenable and, like most dispositions, commonplace in politics, it is usually unsubstantiated and thrown about with abundant disregard.

The Constitution of Botswana has entrenched the First-Past-the-Post electoral system. The President of the Republic is not directly elected. Parliamentary candidates declare their support at the time of their nomination as such, for a preferred presidential candidate. The system is designed such that a parliamentary candidate could only declare support for a presidential candidate from his own party. Section 32 (3) (c) of the Constitution provides that, “any Parliamentary candidate who declared support for a particular Presidential candidate shall use the same voting colour and symbol, allocated to that Presidential candidate for the purposes of the Presidential elections”.

Political parties are required in terms of the Electoral Act to register with the Independent Electoral Commission (IEC), their symbols ad colours to be used in elections. During the nominations, of both presidential as well as parliamentary candidates, an aspirant is required to signify his preferred electoral symbol and colour. Logically, a candidate for a given party would choose the symbol of his party during the nomination process. In this way, the effect of the said Constitutional provision ensures that the parliamentary candidate lends support only to a candidate from his party.

Perhaps it is this legal position that has led to the misconception that an electoral pact cannot serve the ultimate objective of seizing government from the incumbent party. An electoral pact is a typical example of the notion of unity in diversity in partisan politics. It postulates separate organizational existence of cooperating parties. The partners agree on a scheme of apportionment of constituencies’ and wards amongst them, but use their respective symbols and colours at the polls. They also agree on a common presidential candidate.

Properly speaking, the concept of a common presidential candidate where parliamentary candidates would not use, at the polls, symbols and colours identical to that of the “common presidential candidate”, is a misnomer. This is so because a parliamentary candidate is only permitted to support, at the presidential elections, a presidential candidate who has chosen and uses the same symbol and colours. It is partly a matter of political posturing that pact partners agree on a common presidential candidate. Probably more importantly so, the relevance of a common presidential candidate would manifest itself in the event a pact has been able to garner a majority of elected parliamentarians, but fell short of attaining the Presidency within the normal legal strictures of the system.
In terms of the First-Past-the-Post system, and the Constitution, the candidate who is declared President is one who would have been supported by 50 percent plus one of the elected parliamentarians. Let us, in this discussion take the BAM-BCP Pact as a reference point.

The Pact provides that the BCP President is the Pact Presidential candidate. At the same time, BAM parliamentary candidates would be using, at the elections, BAM’s symbol and colours. BAM President would not be contesting for the presidency in terms of the Pact. BAM candidates would not therefore have a presidential candidate to declare their support for, as the BCP President would have chosen a BCP symbol and not that of BAM. The fact that at the nominations, the BAM candidate would not have declared any support for any presidential candidate would not render his nomination invalid, by virtue of the proviso to Section 32 (3) a) of the Constitution of Botswana.

It is therefore entirely possible that the Pact might garner a majority of parliamentarians, but its candidate (BCP President) might fail to attain the 50 percent plus one threshold to have him declared the country’s President.

Should that happen, it would mean that no candidate could, in terms of the said Constitutional stricture be declared the President of the country. In that eventuality, the provisions of 32 (6) b) will be triggered,
The Chief Justice, in his capacity as returning officer, would declare that no candidate has been declared President. Upon such declaration, the Speaker of the National Assembly is enjoined to convene Parliament within fourteen days in an extra-ordinary session, for purposes of electing the President. Since the Pact would be commanding a majority in Parliament, its “common presidential candidate” would easily sail through and ascend the Oval Office.

In this sense, an electoral pact can deliver a change of government, for once he is elected President of the Republic, the BCP President would, constitutionally, be the Head of State and clothed with full Executive powers, including appointment of Cabinet Ministers and heads of key public portfolios. Therefore, as is clearly evidenced in law, the BAM-BCP Pact can in fact deliver an alternative government for this nation.

*Dick Bayford is a Gaborone based attorney and leader of the National Democratic Front

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Digital copy of Sunday Standard issue of September 20 - 26, 2020.