There is no doubt that our flawed constitution has, by default, served us well for almost half a century. But that has to a larger degree been due to our ignorance, but also credit must go to our past presidents who were never too ready to apply it to the letter to suit themselves. Today, our Constitution is at the centre of all our troubles as a nation.
We were only awoken to the reality of its shortcomings by President Ian Khama who never shied away from applying it meticulously and in the process exposed its flaws.
Khama continues to judiciously pour cold water over calls for the overhauling of the constitution because it aptly serves his convenience and purpose. It has simply made him untouchable.
Thus has contemptuously rejected calls for the overhauling of the constitution. Do you recall his public pronouncement in the 2010 State of the Nation address when he urged for caution in heeding calls for its alteration because he precisely knows he is its primary beneficiary.
Under the current constitution he enjoys absolute immunity from prosecution.
He used Section 41 of the constitution in preliminary argument to circumvent a legal challenge on his powers by former BDP Secretary General Gomolemo Motswaledi. He won the case without having to argue the merits.
That was the time a lot of us had hoped that his powers would have been put to test. Alas, that was not to be.
He is also chief commander of the armed forces, appointing authority of the judges and the prerogative of mercy for condemned death penalty convicts rests with him. Do you remember how he rejected recommendations of the Judicial Service Commission for the appointment of certain of lawyers to the bench? No reason was advanced for that particular rejection and do you honestly believe the candidates were not qualified for the job. In fact the rejection was in itself a flagrant violation of other constitutional provisions that judges of the High Court shall be appointed upon recommendation by the JSC.
He is the sole convener of parliamentary sessions in addition to issuing the writ of the general election.
In fact, the powers vested in the president supersede those of the National Assembly, the House that promulgates the laws of the country.
When Khama recently refused to engage the public service unions during the two-month long strike, parliament was rendered helpless as the Speaker could only convene the General Assembly whose resolutions were not binding on the executive led by the president.
Do you honestly believe then that this country deserves such a skewed constitution? I vehemently argue to the contrary hence my position that it needs to be overhauled.
As it stands, the constitution is a one-man show. There is no legal recourse that can be used in case the president overstepped the general public interest.
Yours
Joseph Balise
Dear Joe,
From the onset I agree with you there are certain aspects of the Constitution that have been overtaken by time.
Where I differ with you is where you want to make it look like the Constitution you are referring to came in place the day Ian Khama became President.
I think Ian Khama, to be fair to you and him, has so far come across as an opportunist president who took his opportunities as provided by the Constitution.
I remember many years ago when called upon to reconcile presidential powers with accountability, the then Minister of Presidential Affairs PHK Kedikilwe argued that Botswana would never get a President who would be as irresponsible as to deploy the full wrath of the powers as provided to him by law.
At the time, Kedikilwe, like many who are today the most ardent proponents for Constitutional Review, was an insider who found no reason to tilt the scales of power out of the reach of a system he was an integral player.
What PHK failed to internalize is the adage that “Molaa kgosi o a bo a itaeela” ÔÇô roughly translated into “law has no eyes; it feeds even on those that bring it about.”
Thus, yesterday’s defenders of the same Constitution have become its most hostile predators.
To cut the long story short, laws should be made for posterity and not for any one individual.
While there is need to revisit some aspects of the Constitution, we should be careful not to be seen we do so because there is a certain chap called Ian Khama. What therefore becomes of our reviews when Ian Khama goes as he certainly will do when his time is up?
Banging the tables today, as some of you guys often do when you are the same people who used to shout down calls for Constitutional Review, drives your opponents to a very strong conclusion that your argument is disingenuous because it targets an individual, rather than the principle.
You are accused, and not without justification, that your views today are borne not by principle but by the fact that you are now at the receiving end. That cannot be right.
Personally I have always questioned many key areas of our Constitution, long before Ian Khama was President. My position will remain consistent whether Khama goes or remains!
Yours Faithfully
Spencer Mogapi
P.S Please do not get me wrong, I am not rejecting calls for Constitutional Review per se. All I am saying is that the Constitution should be reviewed not to spite any one individual, not even Khama who, I must confess I am not one of his great fans. Rather it should be reviewed on principle, one of which is to reflect the times as well as to serve posterity.
Dear Spencer
I do not want to be portrayed as having anything against Khama. Whether I like him or not is to me immaterial.
He is the president of the Republic and should serve all of us equally. I nevertheless take gripe with the way the president is elected to lead the country. He is elected by parliament.
The constitution should be reviewed so that it provides for direct election of the president as opposed to the current system. How do we have a president who is elected by parliament which, cannot hold him accountable?
I have already illustrated that when Khama refused to meet the public service union leaders, parliament was left helpless as it could not compel him to. Spencer, has it ever crossed your mind what would happen if the president ignored the normal practice of convening parliament. This might sound far-fetched, but it is not impossible. Assuming the president apprehended that a vote of no confidence would be passed against him and decided not convene parliament, what would be the fate of the nation. Chaos, I must assume.
The nation will surely be held to ransom by one person as there is no legal recourse that could be sought in the circumstances. After all he enjoys absolute immunity in terms of our ‘flawed constitution’. Parliament is convened at the whim if not pleasure of the president. Convening an important institution such as parliament is by law one of the many gifts the President, can at will withhold from the nation.
This is a serious flaw which needs urgent attention, hence calls for the review of the constitution which I wholeheartedly support.
The same extends to the issue of automatic succession. It has been argued in elsewhere that automatic succession is not desirable. It is undesirable because the person who succeeds the president in the event of a vacancy is not necessarily the best candidate in parliament but rather a close confidante of the incumbent president. The president gives parliament a name to endorse for his vice.
He chooses his own appointee. In the case of the first past the post system, the ruling party obviously has more legislators who are coerced by the president in the name of collective responsibility to support the presidential nominee.
The system is to say the least outdated. We need to usher in more progressive democratic dispensations that are in sync with modern times.
Have you ever imagined what would have happened had Khama left office during the time his vice (Mompati Merafhe) was indisposed? An undesirable situation would have emerged. The calls for the review of the constitution are not without basis or merit. They are meant to close the glaring gaps that daily emerge in our system.
Yours Ever
Joseph
Dear Joe
Automatic succession is one of the great sins ever bequeathed on this nation by those entrusted with the privilege of leadership.
I am not going to waste any time trying to explain let alone defend it.
Its proponents say it begets continuity that is necessary for stability.
My answer to them is that if indeed there is any stability to be derived from such a set up, then such stability is a phony one.
Just how does a President who is himself not elected directly by the people allowed a leeway to choose his successor in case of any eventuality.
To me that is tantamount to ruling from the grave.
In fact, Automatic Succession is the devil that is at the centre of today’s anarchy inside the ruling party.
But once again in our hatred for Ian Khama, we should blame for this aberration.
The people who dreamt up Automatic Succession are ironically some of our most celebrated political heroes. I suppose you know who the culprits are Joseph, even as you have no problem accusing Khama of it all.
As in many other instances, the man finds himself taking flak for crimes he did not commit.
Yours
Spencer Mogapi
Dear Spencer
The most worrisome deficiency of our democratic dispensation and constitutional provisions is certainly lack of independence of the National Assembly. Why the hell is parliament, as the country’s supreme body, subordinated to the Office of the President? The same applies to the Office of the Ombudsman and the Independent Electoral Commission.
These institutions should surely be seen to be independent from all spheres of operation including their budget allocation and reporting structures. Why should parliament budget come from the Office of the President? This is more the reason why the constitution needs an urgent review.
The president should report to parliament and not vice-versa.
In reviewing the constitution, care should be exercised to ensure that oversight bodies like the Ombudsman are made completely independent. The IEC should also be independent and it must be the one vested with the power to issue the writ of the general election as opposed to the current system in which the writ is issued by the president.
The Minister of Local Government should also be dispossessed of the power to issue the writ for local government by-elections. That power should squarely fall within the ambit of the IEC.
But how can the review of the constitution be achieved? A national referendum is the most appropriate way to go. The people must be thoroughly consulted so that the new constitution is all embracing.
I have always wondered why Dikgosi have to report to the Minister of Local Government. Dikgosi must be given appropriate powers under the new constitution.
Government has the propensity to amend the constitution piece-meal as and when it servers the ruling party. That should not be the case. A holistic review of the constitution is the way to go. I would have delved more into this issue but I reckon that Kgosi Kgafela is challenging the validity of the constitution. One just hopes that the court verdict would add another dimension to the way forward.
Yours
Joseph Balise
Dear Joe
You truly are on your element.
I have no wish to quarrel with you on which areas of the Constitution need to be reviewed.
My opinion which by the way I have held for many years now is that the review should be thorough and all encompassing.
While a review will no doubt be epoch-making, this is not to say all aspects have to be changed.
For example, I have no problem retaining the immunity of the President, if such a President is directly elected by the voter. A failure to directly elect a President, a man so powerful as to literally control everything under the sun, is to me the greatest albatross that kills whatever good may be withdrawn from the current document.
Another thing which I am surprised you have up to now not touched is the fact that we have a Constitution that inherently places some ethnic tribes over others.
That to me is an unpardonable anomaly. I can never believe that one person is better than the other on account of ethnic origin.
That be is abhorable as it is reprehensible.
Just what makes one tribe, in some instances numerically lower than the next to be recognized by the Constitution that does not do the same to other tribes.
This to me goes to show the mentality of the dominant thinkers who sat around the table at a time that the said Constitution was crafted.
Yours
Spencer
