The question of who will be president in April 2008 looks settled in a lot of people’s minds. Below I will demonstrate that the situation is not as simple as the nation has been led to believe.
In terms of Section 35(1) of the constitution the Vice President shall become president when the current president’s term comes to an end. However, a closer look at our constitution suggests that rather than become president, the Vice President will merely exercise the functions of the office of president. Section 35(3) states that the person who performs the functions of the office of president by virtue of Section 35(1) shall not have power to dissolve parliament.
Section 91(2) gives the president power to dissolve parliament. In whom will this power vest for it does not vest in a Section 35(1) President?
Section 87(4) gives the president power to dissolve parliament in the law making process where he refuses to assent to a Bill passed by parliament. Section 35(3) takes away this power. Effectively, a Section 35(1) president cannot stop parliament from making whatever law it chooses to make. In fact, he has no choice but to assent for he will be unable to dissolve parliament.
I believe that the power to dissolve parliament in the law making process was intended to empower the president to protect the nation should parliament pass a law that is not in the national interest. A Section 35(1) president will not be able to protect the nation against excesses of parliament.
Whenever the president goes outside the country, he appoints someone to exercise the functions of the office of president. He always limits the powers of such person by instructing that such person shall not have power to dissolve parliament. This shows how serious this power is taken.
Section 39(5) also refers to a Section 35 president as a Vice President exercising functions of the office of president. It then gives such a person the power to appoint a Vice President. It then states that such a person will cease to perform the functions of the office if his appointment is revoked by the Vice President. One may ask what Vice President revokes the appointment if Section 35 creates a complete president. Section 39(5) reinforces the argument that a Section 35(1) president is really an acting president.
If a Section 35(1) president has limited powers as shown above then a vacancy will exist in the office of president in April 2008. Parliament will not have been dissolved, therefore the conditions required by Section 35(4) for parliament to elect the president will obtain.
If Section 35(1) results in there being no vacancy in the office of president, why do we have Section 35(4)? To conclude that Section 35(1) results in no vacancy in the office of president would render Section 35(4) superfluous.
As a nation we have a choice, to have a president with limited powers for seven days as per Section 35(4) or a president with limited powers up to the next general elections as per Section 35(1) and Section 35(3). I do not see any advantage to the nation in having a president with limited powers for an extended period of time. Section 35(4) gives parliament power to elect a president with full powers within seven days.
If the procedure under Section 35(4) is unacceptable, the sitting president can dissolve parliament before he leaves office, before April 2008. This will result in Section 35(4) conditions not being met and a Section 35(1) president for a short period of time, sixty days. This is because elections have to be held within 60 days of the dissolution of parliament.
From the above, I believe we can see that in a proper reading of our constitution, there is no real automatic succession in Botswana. A Section 35(1) president is not a full president, so we cannot talk about this being automatic succession at all. The current debate about automatic succession is just politics.
Of course, one may ask but what about the earlier succession of Rre Mogae, was it not automatic succession? Rre Mogae, I believe, was a very lucky man. I do not think when he dissolved parliament, in 1999, for us to go to elections he was aware that as a Section 35(1) president he did not have powers to do so.
In my view, Sir Ketumile Masire was such a strong believer in democratic governance that the idea of a mandate crept into his succession proposal without him noticing it. It happens to us all. I think the need to deal with factions within the BDP distracted him from noticing this.
The idea of having to seek a mandate is what is captured in our constitution. That is why a Section 35(1) president who does not have parliaments approval in terms of Section 35(4), is denied power to dissolve parliament by Section 35(3), and also why Section 39(5) treats him as an acting president.
I have previously argued that the real problem in this country’s politics is the caliber of people we elect to parliament. The current noise about automatic succession would have long been dealt with had we had people who bothered to study and understand our constitution.
What is interesting is that the promoters of this succession process have themselves not understood what they have created (that is our former president Sir Ketumile Masire and parliament.) It is a measure of what can happen in this country. People meet, ask lawyers to draft laws amending the constitution, blindly agree without bothering to understand what they are doing, and then for ten years a none issue occupies center stage.
It is incredible that, though BDP has a huge majority in parliament and if it fails to apply Section 35(4), it will have a president with limited powers for eighteen months. Is this why they fought for and won the elections in 2004? Is it in the BDP and national interest to have a president with limited powers for eighteen months? I do not think so. It would also diminish our presidents standing in the international arena.
I believe the prospective president has a lot of support nationwide and within the BDP itself. He should not take a route that results in him being a handicapped president. He should seek a mandate to avoid being in this status.
It is also a measure of the damaging effects of factions that the BDP may shy away from proceeding according to Section 35(4) that is parliament electing the president within seven days.
The founders of BDP will find it ridiculous that because of factions the BDP will have a president with limited powers for eighteen months even though the BDP is the ruling party. Even ordinary members who have elected the party will find such a status unacceptable. If I were a member of the party I would want a serious explanation from my leaders.
As a citizen the president of the country is my president. I want an explanation of why he has to have limited powers for an extended period when there is no one in whom the full powers of president vest.
As for the opposition I thought it had lawyers, some of them are in parliament. It is incredible that it has not realized that succession under Section 35(1) results in a president with limited powers and the consequences thereof.
It is also a measure of political discourse in this country that purported politicians, both ruling party and opposition have very little or no understanding of important provisions of our constitution. In most countries politicians have a legal background. Here all someone does is attend a few funerals and weddings, take people to clinics at night and they are sent to parliament to make law. As voters we need to seriously interrogate this situation.
Parliament’s function is to make law. Why do we send people with no knowledge in this subject to parliament? Alternatively parliament must empower members of parliament with research assistants with a legal background.
I believe what I am demonstrating is that ordinary people have to understand our constitution, for our politicians most definitely do not.
If Dr. Koma were alive he would be saying “Thaakaa, it is politics which is under crisis and not chieftainship”
As a nation we must have a constitution that makes sense and which is practical. It quite obviously does not make sense to have a sitting president with full control of the army, public service, and other organs of state and then tell him that he cannot have power to dissolve parliament for an extended period of time.
As a citizen I do not find it acceptable that we can avoid legitimizing the president through Section 35(4) and then handicap him for eighteen months. Do we not trust him to use the power to dissolve parliament wisely?
