Referendum required for Electoral Act reforms?

SHARE   |   Monday, 05 December 2016   |   By Adam Phetlhe
Referendum required for Electoral Act reforms?

That the Electoral (Amendment) Bill 2016 was rushed through Parliament during the wee hours of that fateful morning and at the speed of a supersonic jet is common knowledge. It is also common knowledge that the opposition is seriously aggrieved by these turn of events and is contemplating legal recourse. Botswana electoral history tells us that two referenda were held in 1987 and 1997 respectively and  based on this historical fact therefore, the same should have occurred this time around on the basis of consistency and precedent particularly that the current ruling party is the same that was in charge then. The other referendum in 2001 dealt with proposed reforms to the judiciary. A referendum is defined in the Oxford Public International Law as a “direct vote by the electorate of a country to advise or decide on a specific issue, in contrast to votes for individual candidates to national or local elections … while the Referendum is not a solution to all political problems, its use is advisable on major and/or divisive issues as a means to enhance democracy by giving a voice to the people: political decisions are then made openly and are clearly legitimate”. Referenda are reserved for important issues like amending the Constitution or amendments to electoral processes as will be shown hereunder. For purposes of being on the same page, let us look at the two electoral referenda. The first referendum was held on 27 October 1987 whose purpose was to create the position of Supervisor of Elections; 78% of voters endorsed the proposal with 21% against. The second was held on 4 October 1997 with three questions on the ballot paper. The first question concerned the approval to amend the Constitution to replace the position of Supervisor of Elections referred to above and replacing it with the current Independent Electoral Commission (IEC); 73% of voters endorsed this proposal while 27% was against. The second question sought approval to again amend the Constitution to allow Batswana living abroad to vote; 70% of voters agreed while 29% was against. The third question asked voters whether they approved of amending the Constitution to lower the voting age from 21 to 18; 58% agreed while 41% was against (Source: African Elections Database).

Writing in his article “The Political Implications of the 4 October 1997 Referendum for Botswana” published online on 26 September 2007 Professor Mpho G. Molomo argues that “….if elections are to enjoy legitimacy and credibility they need to represent the consent of the broad sections of the society. Therefore this paper discusses the referendum as an instrument for improving Botswana’s electoral system”. A narrative has been raised that when Botswana changed from discs as symbols of political parties to the ballot paper, no referendum was held. Fair enough. But I want to assume that (a) the stakes were probably not as high as they are today and (b) there may have been no glaring prospects of tempering and/or manipulating the vote as it is currently feared by the opposition. The bottom line in my view, are Professor Molomo’s words quoted above and further that a referendum is a rare opportunity for citizens’ direct participation in expressing their democratic right in electoral matters as opposed to this expression exercised on their behalf by MPs in Parliament. The Referendum Act ‘provides for matters requiring the approval of the majority of the electors under any law, to be submitted to a vote of the electors qualified to vote at an election of the Elected Members of the National Assembly’ (italics mine). My standard one understanding and interpretation of the foregoing is that consistent with the 1987 and 1997 referenda and the legitimate expectation created thereof, the same expectation would be expected for the Electoral (Amendment) Bill of 2016. The following questions amongst others should have been thrown at the electorates: should we amend the Constitution to (a) use electronic voting machines without paper trail provision; (b) discontinue supplementary registration. So why was the referendum avoided when it appears the Referendum Act demanded it?

Political expediency has taken centre stage in which like President Zuma said the other day, the ANC comes before South Africa. The BDP, it would appear, comes before Botswana. The executive has overtime turned a blind eye to the rule of law where for instance and in the current electoral ‘reforms’, it started the process of EVMs even before Parliament concluded debate on the matter. The reverse under normal circumstances would be the case. The other turning of the eye is in relation to the liquidation of BCL where the executive took this decision at some corner and informed Parliament later. In these two examples, Parliament was involved as a ‘matter of courtesy’ because it had to authorise funds for the EVMs. These turn of events are in line with Zuma’s assertions.  Political analysts have suggested that due to pressure from the opposition and particularly the possibility that the 2019 election could be contested by two parties only, the end result will eliminate vote splitting as was the case in 2014 where the end result will, as they say, be history.  If the opposition goes into 2019 as a single party, it spells what the Italians call paura dell’ignoto (fear of the unknown). This being the case, it becomes a desperate situation which requires desperate measures where one of those is to remain in power through hook or crook –manipulate the electoral process with whatever is available for a preferred outcome.

In my view therefore, a referendum was imperative to promote direct citizen participation in deciding how they want to elect their representatives in 2019. A referendum, as a tool reserved for very important national issues like amending the Constitution to bring in changes to the electoral process, should have been held as it was in 1987 and 1997 respectively. Like they say, democracy is very expensive. For as long as Botswana aspires to be a democratic country in the strictest sense of the word, short cuts; political expediency and downright compromise and manipulation to the rule of law in the quest to realising these aspirations, should not be an option. Any failure to hold a referendum is so disingenuous and highly self-serving. Legitimacy and credibility to any electoral process should be regarded as a national agenda as opposed to scoring cheap and narrow political points. The process of achieving this agenda should suggest so. Judge for yourself!

Adam Phetlhe
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