Monday, October 26, 2020

Strong demand for constitutional review

There is growing demand amongst Batswana that a comprehensive review of the country’s constitution is long overdue.

This came to light in a survey conducted by the Afrobarometer research team at the University of Botswana.

The survey revealed that the majority of Batswana strongly support constitutional reform with 55 percent reporting that the existing supreme law of the country needs to be reviewed against 40 percent who believe that the constitution is still relevant and must not be changed.

Calls for constitutional review have been especially rampant since the ascendance of President Ian Khama who has never shied away from exploiting his constitutional powers to the full.

A case in point is the recent pardoning of the convicted John Kalafatis murderers that is in line with Section 53 of the constitution, which empowers a president to “grant to any person convicted of any offence a pardon, either free or subject to lawful conditions”.
Section 54 also bestows upon the president the power to appoint the ‘Advisory Committee on Prerogative of Mercy’ which in essence means he can choose to do away with any member who presents a dissenting view.

Section 41 of the constitution protects the president from any form of litigation dictating that “whilst any person holds or performs the functions of the Office of the President no criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his official capacity or in his personal capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him in respect of anything done or omitted to be done in his personal capacity”.

The Botswana Movement for Democracy president, who was then BDP’s Secretary General, learnt this the hard way when the Court of Appeal dismissed his application against a suspension slapped on him by president Khama.

Bakgatla Paramount Chief, Kgafela Kgafela, earlier this year lost a case at the Court of Appeal in which he was challenging the validity of the constitution. President of the Court of Appeal, Ian Kirby, pronounced that “neither this court nor any other court has the power to set aside the constitution”.

Another controversial case is that of Professor Kenneth Good who was declared persona non grata by then president Festus Mogae as it emerged that a president is not obliged by law to divulge reasons for declaring someone a prohibited immigrant.

According to the Afrobarometer survey, 71 percent of the people who believed Botswana is not a democracy supported the review while only a paltry 31 percent of those who are very satisfied with the way democracy works in Botswana voted for constitutional reform.

The survey interviewed 1200 adult Batswana and a sample this yields results with a margin error of +/- 2.8 percent at 95 percent confidence level.

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