If you ask proponents of comprehensive review of the constitution, which constitution they want reviewed, most will respond that are talking about the constitution of Botswana. I will attempt to show that if you listen carefully to a lot of comments about what the constitution of Botswana contains or provides for, and read the text of our constitution you will realize that Botswana seems to have many constitutions. I am not hear talking about interpretation of the constitution but what people say it provides or what we are told those in leadership can do or are empowered to do, or what has actually happened.
A private newspaper quoted a Member of the National Assembly as saying that President Masisi has been in office for one year. This is of course not correct, but such an expression finds support from the position peddled by some that when President Masisi took power in April 2018 he was completing former President Khama’s term. Both positions do not have support from the text of our constitution. No one can point out any provision that talks about these positions.
I use the term “Member of the National Assembly” deliberately. Our constitution talks of “Parliamentary candidate” and “the Parliamentary Election”. We have however for a long time used the term “Member of Parliament” instead of the correct term, “Member of the National Assembly”. It is very clear from the text of our constitution that at the general election, we elect Members of the National Assembly. I challenge anyone to show me the text of our constitution that talks about elections of Members of Parliament.
Another local private newspaper reported that the backbench of the BDP wanted the president to remove the Deputy Speaker. I think the same paper followed up later with a report stating that the Deputy Speaker will have to resign to make way for Honourable Moatlhodi and that he would be rewarded with a cabinet post. This suggests that the paper knew that the president had no power to remove the Deputy Speaker. I challenge anyone to show me a text of the constitution that gives the president power to remove the deputy speaker.
Immediately after the general elections the media was awash with names of people who were likely to be nominated as candidates for the position of Specially Elected Members. These Specially Elected Members are elected by the elected Members of the National Assembly. I have seen reports saying that the president has appointed someone to the position of Specially Elected Member. There is however no text of our constitution that says the president appoints Specially Elected Members of the National Assembly.
It may shock some to realize that our constitution does not have the expression “Member of Parliament” yet we have used this term since independence. Our Members of the National Assembly have for some reason or other used the term “Member of Parliament” I may come to regret this if a tender is floated for production of a compilation of Members of the National Assembly for placing on walls in government and other public buildings.
The words “major tribe” do not appear in the text of our constitution. The text lists two methods for one to be a member of the Ntlo ya Dikgosi. Members of Ghanzi, Chobe, Kgalagadi, and North East are elected from their own number, of those performing functions of the office of Kgosi within those areas, whilst other members are designated according to established norms and practices of those areas. The constitution ties membership to area or region not tribe. But of course we have some centering their concerns about membership of Ntlo ya Dikgosi on “tribe”.
The constitution starts with the declaration of a republic. Are we in the exercise going to consider a change from this? Or is this a no go area. This is important given that historical records show that some of our Dikgosi preferred a federation. Is the current government willing and able to accommodate this type of discussion, and to provide resources for a view that proposes a change from a unitary state to a federation to be published.
The constitution makes reference to a “democratic society” not a “democratic country” but we often refer to ourselves as a democratic country. As we all know we have different societies in the world. We have heard talk of “inner party democracy” within political parties. These by any measure are societies. People born before 1966, and not old enough to vote were effectively made citizens without their consent. Are they going to be allowed to have a say as a collective, a society?
I raise the above because it is very important, as people call for a comprehensive review of the constitution, that we are on the same wavelength, otherwise we are going to find ourselves talking past each other. Having looked at the text we may proceed to interpretation and whether there is a need to add, subtract or amend.
One question that has of recent come to mind is whether the government can actually call for a comprehensive review of the constitution. I say this because the constitution provides a mechanism for its amendment and there have been calls for scrapping of the constitution and coming up with a so called “Batswana version”. A government that hears these types of statements may have to consider whether these calls very carefully.
In a situation where the constitution provides a mechanism for its amendment can we introduce a step called “review” without justifying or providing a genesis for that step from a constitutional law position. It seems to me that there are certain grievances that inform certain sections of our population, and what for lack of a better word I call shopping basket list of desires that seem to ground calls for a review of the constitution. I must not be understood to suggest that such grievances or desires are not legitimate but rather whether the chosen method for addressing these is the correct one.
I am well aware and support the position advanced by the Reverend Martin Luther King, that people have the right to protest for a right. Those who have grievances and lists of desires have every right to agitate for resolution of their grievances and inclusion of their desires in the constitution, but do we need a process that indirectly attacks the legitimacy of our constitution? I suspect that much as President Masisi has promised a comprehensive review of the constitution than meets the eye. If I am correct in my supposition I think it is only fair that Batswana are told that the issue is more complicated than it seems.
Let us assume the process of review is started, what mechanism do we have for dealing with those who are not satisfied at the end of the process? This has to be addressed. Imagine a situation where you have certain sections of our population with grievances and we give them a platform to partake in a review and they are unhappy with the outcome. What processes or mechanisms do we have in place to ensure that the review process does not provide a platform for rallying of the aggrieved such that they become a national security threat or the stability of the republic?
As a matter of law, when reading a document, you do not choose particular passages and take them out of their context. One has to consider the document as a whole. We may however have sections of our population, who being members of churches where the priest often chooses particular verses for a sermon, think the same applies to the constitution. The words “comprehensive review” are unnecessary, and may mislead those not trained in law to think that something out of the ordinary is going to be done. There is therefore a need to undertake preparatory steps to educate our people on what is involved. There is a need to establish the sphere of the exercise that is being contemplated. Otherwise we are setting ourselves up for a nasty situation.
We were taught at both primary and secondary school that government has three arms, being the legislature, the executive and the judiciary. In terms of our constitution if the National Assembly passes a motion of no confidence in the Government of Botswana, parliament shall stand dissolved. The question that comes to mind is, why is it that only Parliament in dissolved? The president stays in position and the judiciary carries on and is unaffected.
We have been told that our Dikgosi are custodians of culture. There are historical records that show that as recently as 1800 some of our tribes were mining and smelting iron, gold and copper. Which Kgosi can claim to have preserved the intellectual knowledge and artisan capacity that obtained in the 1800’s? Why should we treat their privilege, dikgafela, dipina le maboko to prove that they are custodians of culture? Will we be allowed to suggest that tribes be treated like voluntary associations? Will we be allowed to suggest that we have the right like our ancestors to form new tribes? Will there be limits to what we can propose in the review exercise?
