‘The true separation is between those two putative branches of Government…’

SHARE   |   Tuesday, 24 January 2017   |   By Adam Phetlhe

The above was contained in a speech delivered by the Judge President of the Court of Appeal, Justice Ian Kirby during the opening session of that court recently. What caught my interest in this speech, and which is the subject of this conversation, are the statements: ‘In Botswana there is no real separation between the executive and the legislature’ and ‘the true separation is between those two putative branches of Government’. While I partially agree with the first on account that it is, in my view, factually correct but not that it is desirable, I completely disagree with the second on account that it suggests that separation of powers is only meaningful if it is between the executive/legislature and the judiciary.  Separation of powers is a mandatory and not an optional principle to true democratic dispensation and the rule of law. While Justice Kirby correctly points out that “In Botswana there is no real separation between the executive and the legislature” whether from the perceived or real silence in the Constitution and the executive taking advantage therefrom, other law scholars provide another explanation. When presenting a paper on Separation of Powers in Botswana at the Southern African Chief Justices’ Conference in Kasane in 2009, Justice Dingake observed: “The phrase ‘separation of powers’ appears nowhere in the Constitution of Botswana. However, that the Constitution apportions powers to the three organs of the State, being the executive, the legislature, and the judiciary is incontrovertible…’ That it is incontrovertible in my view suggests that there can be no reason not to enforce meaningful separation between the executive and the legislature whatever ‘inbuilt advantage or relationship’ exists between the two. We all know that the ESP was introduced to the nation at a party event and subsequently rolled out before the legislature could firstly sit and pass a law or policy with respect to it and secondly approve its budget. BCL shutdown, despite the fact that the mine is a creation of an Act of Parliament, was effected without the direction and authority of Parliament. In these two examples, it is patently clear that the executive deliberately ignored, trampled upon and encroached on the territory of Parliament to advance its own agenda whatever it is or was. Action on the birth of ESP and BCL shutdown should have been firstly brought to Parliament after which the executive could implement its decisions whatever they could have been. The ‘unholy alliance’ between the executive and the legislature somewhat enabled this conduct. The other consequence of ‘no real separation between the executive and the legislature’ is that the civil service becomes heavily politicised which in turn renders it executive minded. Such civil service becomes too blindly loyal to the executive not on account of strictly adhering to the laid down processes and procedures in relevant instruments governing it, but on pressures from the executive for preferred outcomes. It is either you are towing the unholy line wholly in favour of the executive or you are out. Those in the civil service who are loyal to the principles of good corporate governance, accountability and transparency are too often victimised in being demoted or disciplinary proceedings stage-managed to dismiss them – events at the BTO regarding former CEO and PS is the case in point. The other point is that State institutions like Elections management, security agencies, and crime busting ones, become executive minded once their independence and mandate through their Acts of Parliament are controlled and supervised from a political office on operational matters. My point from the above is that failure to enforce separation between the executive and the legislature however silent it may be in the Constitution if indeed it is, paralyses the operations of the State much the same as it would if such separation was absent between the putative branches of government and the judiciary. Is the influence of the executive over the judiciary in Botswana a myth or real?The starting point to answer this question is that political office is sought and secured more to do with personal aggrandisement than serving the nation. This is why politicians detest and viciously resist being asked to account to questionable decisions they make. This is why they have viciously resisted for over 17 years to the Assets and Liability law. To secure and perpetuate this personal aggrandisement, some guarantees to repel any form of invasion into this space become somewhat imperative to them. Coupled with this is that elections, which could open a window to remove politicians who serve their agendas more than the nation’s, become so intensely contested and disputed to a point that those aggrieved could approach the courts to seek redress. To thwart any attempt of removing them from office for wrongdoing, an executive minded judiciary just like an executive-minded civil service must be created as a buffer zone. The law and procedure for the appointment of judges in Botswana as it currently stands, is a perfect fertile ground for the creation of executive minded judges. It should be noted that even in more robust and transparent processes, such judges could still be created. It is the process of dealing with such which differs. The current situation where some judges are suspended for allegedly receiving unlawful housing allowance while some in the same situation remain in their chambers could after all, suggest and create a perception that the latter group is in the good books of the appointing authority. The revelations by the two judges that one was loyal to the President as opposed to the Constitution because he appointed him during his time of despair and the other saying he was often influenced by mob thinking, clearly show that such judges’ conduct was in conflict with their oaths of office. The fact of the matter is that chances of a judge appointed directly by the President here and elsewhere are greatly enhanced to create executive mindedness because they are beholden to him just like Minsters are. While it is true but dangerous that ‘there is no real separation between the executive and the legislature’ because players in these structures are politicians with huge personal and political interests, the absence of this separation is harmful to the overall operation of the State because the checks and balances required for such operation in the strictest definition of separation of powers are deliberately ignored. The fact that a Minister can muster the courage to dissolve a parastatal board, unlawfully commits P17m of public funds to some unlawful deal in Dubai is proof of fatal consequences when there is no real separation between the executive and the legislature. And what’s more, no consequence management follows. This is why Montesquieu said that “Constant experience shows that every man invested with power is apt to abuse it and to carry his authority as far as it will go”. Any democracy subscribing to the argument that ‘the true separation is between those two putative branches of Government’ is as good as clinging to the analogue generation in the era digital generation. Botswana is a Constitutional democracy through which her citizens have a legitimate expectation that the three organs of State perform their oversight functions in a meaningful and effective manner to avoid conflict and uncertainty. This country is endowed with skillful and competent human capital to ensure oversight functions – what is lacking regrettably, is the will to do so owing to political and other vested personal interests. Doing so would derail the very purpose of assuming political office. True separation of powers is a must for all organs of State. Picking and choosing to adhere to the principle of separation of powers when it is convenient is not only an option, but dangerous as well. Judge for Yourself! 

Adam Phetlhe

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