Wednesday, September 23, 2020

Who to serve: President, the Republic or the constitution?

Dear Editor

Does allegiance to the Republic of Botswana imply non- allegiance to the President of the Republic of Botswana? Does allegiance to the President and the Republic of Botswana imply non-allegiance to the Constitution?

Section 12 of the Intelligence and Security Services Bill makes it imperative that the Director General, the Deputy Director General, every officer and support staff, on being appointed to the Directorate, before assuming their duties, subscribe to the oaths declaring their faithful and true allegiance to the President and the Republic of Botswana.

Two difficulties arise from section 12. Firstly, the provision seems to suggest that when one swears allegiance to the Republic of Botswana, he does not necessarily do so to the president. Secondly, allegiance to the Constitution is not mentioned.
Allegiance to the Constitution is omitted.
Allegiance is directed to two items, the President and the Republic of Botswana.

The word ‘and’ indicates that the two elements are distinguished. But what is the difference between the President and the Republic of Botswana?
When one declares his or her allegiance to the Republic of Botswana, isn’t the President of the Republic of Botswana necessarily included?
If this is the case, why do these stand apart in the Bill?

By analogy, if one swears their true allegiance to Botswana, isn’t Mathubudukwane included?
The separation of the President from the Republic of Botswana might mean that the two ought to be treated separately and represent two different meanings or otherwise one phrase, preferably the Republic of Botswana, would have been employed.

Could it be that another president besides the president of the republic is referred to? This is an absurd interpretation and cannot stand. Either this is bad draftsmanship, blind-copying or there must be some meaning behind it. The first interpretation could be that when one says the Republic of Botswana, it is not clear that the president of the Republic of Botswana is included. Why this could be so is a brainteaser. If this turns upon the popular maxim of ‘first come first served’, the president, since he comes before the Republic, would be served before the Republic of Botswana. And if the Republic of Botswana must mean the Constitution, then the president would be above the law. However, this interpretation is invalid on the basis that; first come first served’ is not a principle of construing statutes (even Bills).

In the end, since the ordinary and grammatical interpretation of the provision leads to the absurd result that either a president apart from the president of the Republic is intended or that the president of the Republic of Botswana is not included as an item in the Republic of Botswana, another approach must be sought.

The crux of this article is to enquire why the Constitution was not used as an object of true and faithful allegiance. This follows from the basic fact that Botswana is a Constitutional democracy. One of celebrated cases of the republic is the case of Unity Dow; the case declared that the Constitution is the fundamental and supreme law of the state.
The president of Botswana is created by section 30 of the Constitution. Therefore, the president is a creature of the Constitution. The Republic of Botswana is likewise created by the Constitution under section 1. The Republic of Botswana is also a creature of the Constitution. So why is allegiance sworn to the creatures of the Constitution and not the Constitution itself- the supreme law?

Through this section the authority of the Constitution is undermined, its dignity is assaulted, while its mere subjects are elevated. It puts the servant above the master. It is sheer ridiculing of the tenets of constitutionalism, the Rule of law and the concept of Democracy. All must bow before the Constitution for even the president and the Republic are mere slaves before the Constitution having been born out of its womb.

LEKGOWE GR
Gaborone

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The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.