I have had occasion to read in the local papers what Rre Khama is reported to have said when he was sworn in as President. I have found great pleasure in what he did not say. Much as he set out his roadmap comprising the four principles of Democracy, Development, Dignity and Discipline, at no time did he claim to be the final arbiter of what these principles entail.
This failure to claim to be the final arbiter is in accordance with our constitution, more particularly Section 12, which deals with freedom of expression.
In a democracy a citizen has direct access to the heart of the nation state. The representative aspect of our democratic society is limited for purposes such as law, making approval of development plans and policy. At all other material times, the citizen has every right to touch the center of power, and to influence the direction that the nation takes.
Rre Seema, thank you for calling me brave. I am not brave. It is my ancestors who were brave. I am the son of Tshekelo of Molake of Keetile of Maaloswana Ward in Serowe. I am reliably informed that the people of Maaloswana have always had a right to speak their mind in the main Kgotla at Serowe without hindrance. As a man of culture I, like my ancestors, enjoy this right. Ke ja boswa.
General Colin Powell (Oren Harari, 2002) said “We will need to work together well because we have a great challenge before us. But it is not a challenge of survival anymore; it is a challenge of leadership. For it is not a dark and dangerous ideological foe we confront as we did all those years, but now it is the overwhelming power of millions of people who have tasted freedom. It is our own incredible success, the success of the values we hold dear, that has given us the challenges we now face”
I believe this is applicable to Botswana today. Our new leaders face the challenge of having to respond to a population that has tasted democracy and freedom. This requires discipline.
Discipline can only obtain if we give respect to our laws, regulations and policies. How do we reconcile this principle of Discipline with the current position being taken by the government on the issue of presidential succession?
In terms of Section 3(5) of the Interpretation Act a copy of the Gazette containing an enactment shall be accepted as evidence of the due making and terms of the enactment unless the contrary is proven. A citizen has every right to hold that a copy of the constitution sold by the Government Printer has been made following due process. The citizen is also entitled to hold that the terms contained therein are valid.
In terms of Section 3(1) of the Interpretation Act every enactment is a public document, and shall be judicially noticed. This means that the courts must recognize every enactment without requiring evidence to be led of its due making and its terms.
Does Rre Pilane seriously expect me to go to court to seek a court order confirming that in terms of Section 3(5) of the Interpretation Act Section 35(3) of the constitution is part of our law? The onus is on him to go to court to counter Section 3(5).
I have previously shown that the Attorney General is barred by Section 24 of the Interpretation Act from making reference to the debates in the Assembly. I will now show further why I said she was not in accord with our constitution.
In terms of Section 24 of the Interpretation Act the memorandum is used to ascertain that which an enactment was made to correct and as an aid to construction. This is in concert with Section 26 of the Interpretation Act, which says every enactment shall be deemed remedial, that is corrective.
Act 16 of 1997 was an amendment to an existing law. In terms of Section 24 of the Interpretation Act the memorandum must set out what is being corrected by the amendment to the constitution. For example the Memorandum to Bill No. 4 of 2008 seeking to amend the Public Procurement and Asset Disposal Act states “ Additional amendments are made to the Act to give clarity with respect and the application of the Act and to correct inconsistencies and ambiguities”
The memorandum is part of the sponsoring Minister’s recommendation to Parliament. It is not proper to attribute the intension captured in the memorandum to Parliament, for Parliament was not a party to the recommendation.
The memorandum is an aid to construction. It is a tool to assist in interpreting an enactment. It is not a limitation imposed on Parliament’s law making power. Parliament is at liberty to take a position that varies from the memorandum. In this case it has done so.
Copies of the constitution before and after amendment are equal proof of their due making and terms. In the instant case the differences are limited and not extensive. In terms of Section 29 we must construe the whole enactment, not select portions. To therefore focus on these limited differences is to fail to apply Section 29 of the Interpretation Act.
Does the Attorney General seriously want to go to court to argue that Section 35(1) is not subject to Section 35(3) because the intention expressed in the memorandum and debates in the Assembly takes precedence over the law made by Parliament?
General Powell says “We must be involved according to our national interest and not in some haphazard way that seems more dictated by the crisis of the day than by serious thoughtful foreign policy” Replace the words “foreign policy” with “succession policy” and these words are applicable to Botswana today, and the approach to take in addressing the issue of presidential succession.
The proper process (serious and thoughtful) to be followed by the Attorney General and Rre Pilane is as follows:
Give judicial notice to the constitution, in accordance with Section 3(1)
Give effect to Section 3(5) of the Interpretation Act.
If not in agreement with the terms of the constitution, approach the court to counter Section 3(5) then,
Interpret the constitution.
To fuse interpretation with amendment as the Attorney General and Rre Pilane are doing has no legal basis. They must approach the court to counter Section 3 first. Without a court order in their favour whatever they say is private and personal, and no leader should rely on it.
Any lawyer who in the face of what I have submitted still maintains that Section 35(1) is not subject to Section 35(3), and that the reference to Section 35(1) in Section 35(3) is a drafting mistake, and fails to approach the court to confirm their position, is protecting something more precious to them than Botswana.
Chances are the Attorney General fears that the incumbent President will say that she has left a door open for his political enemies. She has not. It is our constitution that has left the door open.
His political enemies indeed have a lawful opportunity to engage him. Each party must, as they say in military circles, close with the enemy and destroy by political firepower. Misinterpretation of the constitution is not part of the arsenal at any politician’s disposal.
oon those who are telling Rre Khama to take the throne are going to say “ he desired to be President so much that he did not care what the law provided, we also feared him, and could not tell him that Molake was correct”.
The Speaker and Parliament take responsibility for this breach of our constitution. They cannot hide behind the Attorney General in much the same way that no citizen can hide behind their private lawyers. Ignorance of the law is no excuse.
Act 16 of 1997 is for lack of a better word, dis-empowered law, useless. It has changed the text of Section 35(1) but not the substance of our constitution. They tried to sway us from Sir Seretse Khama’s path of democracy and elected leadership, but failed. As Dr. Kenneth Koma, a true man of culture, used to say “Seretse e ne e le ngwana wa kgosi tota”.
Let me borrow from the maestro himself, Rre Ratsie Sethako;
Nkabo ke na le pena
Nkabo ke kwalela Kgosi Khama
Ke mo raa ya Palamenteng
Ke mo raa go bue nna
Go bua Morena Seretse.
If this matter goes to court the Respondents will be the Speaker, Parliament, of which the President is a member, and the Chief Justice. The Judiciary will be placed in a very difficult position. There will be questions about conflict of interest and impartiality of our courts. Whatever the outcome, the Judiciary will pay dearly. Is automatic succession in a country that prides itself on being a democracy worth all this? Our politicians take ultimate responsibility for this.
They can avoid this if they follow the law, apply Section 35(1) of the constitution, as has happened, then follow with Section 35(4).
