Friday, September 25, 2020

The time is nigh for constitutional reform

Panellists at a recent conference on constitutional reform in Botswana have opined that the time might be right for the constitution of Botswana to be reviewed. Speaking at the conference, which was convened by the Law Society of Botswana, Lobatse High Court Judge Key Dingake and LSB Chairperson Yvonne Kose Chilume said recent developments in Botswana, and increased consciousness among citizens, have highlighted the need for a debate on constitutional review.

While the issue of the relevance of the national constitution has been topical among legal practitioners, academics, the media and the civic community for a long time, recent occurrences have heightened the call for constitutional review.

“The advent of extra judicial killings, the Court of Appeal’s decision confirming the immunity of the president from civil suit, the standoff between government and the Bakgatla Kgosi, the land and water rights issues in the CKGR, homosexuality and AIDS are but some of the matters that kept the constitution discussion alive,” said Chilume.

At the same time, legislators will in the current sitting of parliament table motions seeking for constitutional reform. Such motions include one calling for the constitution to provide for direct election of the president and for the president to appoint cabinet outside of parliament. Others will also ask government to institute a referendum and a commission of enquiry into constitutional review.

“This has put the pros and cons of piecemeal versus a complete overhaul of the constitution in the spot light. We seek to address, if the constitution is still relevant after 45 years, whether the piece meal approach is appropriate, and whether there are greater considerations that require a total departure from the current constitution,” said Chilume.

For his part, Justice Key Dingake said many changes have taken place in Botswana which have had a significant impact on the constitution, owing to increased consciousness and the premium that the world attaches to human rights.

He appreciated the fact that Batswana in all walks of life nowadays discuss the constitution and its relevance, saying constitutional reform can be a tool through which good governance, accountability and transparency can be promoted.

“The constitutional framework will claim legitimacy and broad respect only if the major players take ownership of the process and achieve consensus on the basic rules,” said Justice Dingake.
Justice Dingake said the constitution of Botswana might be amended to not only entrench civil and political rights, but also socio-economic rights, and that Botswana can benchmark from South Africa.

“It is perhaps time for the nation to debate whether issues of housing, health care, education and social security should not find pride of place in the constitution. The time is also ripe to address issues dealing with protection of cultural, religious and linguistic communities,” he said.
He added that the constitution of Botswana does not have a standalone provision on the right to equality.

“A closer look at section 15 of the constitution, which prohibits discrimination, will show that it may need improvement. Scholars have also identified some problematic aspects of Section 15,”said Justice Dingake.

Like South Africa, he said Botswana might want to create more independent institutions to support and safe guard national democracy.

“The constitution of South Africa also provides that national legislation must establish an independent authority to regulate broadcasting in the public interest and to ensure fairness and diversity of views,” he said.

However, Justice Dingake warned that the constitution should be an enduring document that should not be amended easily, lest it loses its value as the supreme law and the very embodiment of the will of the people. At the same time, he said, a constitution should be amended wherever necessary to keep pace with social and legal developments.

Justice Dingake also warned that any debate on the constitution must be informed and sober. He said Batswana should ensure that constitutional debates do not become a victim of rhetoric and self interest.

The constitution of Botswana has been amended in the past. But the three most significant amendments were in 1998, which set up the Independent Electoral Commission, reduced voting age to 18 years and restricted the presidential term to two five year terms.

RELATED STORIES

Read this week's paper

Masisi creates his own “deep state”?

The government enclave is discussing a new law that will expand the president’s overreach and make it easier for the Directorate of...