I have previously written on the subject of the Rule of Law but I feel compelled to revisit it on the basis that His Excellency the President Ian Khama suggests that he has complied with it during his term of office. The Botswana Gazette newspaper dated 31 January-06 February 2018 quotes him as having said that “I respected the Constitution during my term, African countries Presidents are power hungry.” But living examples and incidents show that the President, if I were to apply the South African Constitutional Court judgement, ‘failed to uphold, defend and respect the Constitution as the supreme law of the land…’ The President has during his term of office, selectively applied the Rule of Law whenever it suited him and his party, the Botswana Democratic Party (BDP). In this conversation, I will focus on how the President has failed to uphold the Rule of Law by circumventing State institutions and ignoring judicial rulings. Murray Gleeson says the “The essence of the Rule of Law is that all authority is subject to, and constrained by law.” If the President subscribes to this statement, he should readily concede that his authority has not been to the extent possible subjected to, and constrained by law. If he doesn’t, it would suggest that he subscribes to his own and convenient principle of the Rule of Law which would be at odds with its generally acceptable definition. In discussing the circumvention of State institutions and ignoring judicial rulings, one has to be alive to the powerfulness of the President particularly in terms of Section 47 (1) of the Constitution. Without quoting it verbatim, it confers on the President immense executive powers, the exercise of which is solely on his own judgement with no obligation to solicit advice from whomsoever. In this regard, one could cautiously argue that notwithstanding the strict intentions of the framers of Section 47 (1), it could be used by the occupants of the position of President whoever it could be, to use it for self-preservation. It would follow therefore that alive to these immense executive powers, the Rule of Law would in all likelihood be the victim because such powers would not be subject to, and constrained by law.
It is common cause that the President will be vacating office shortly thereby complying with the two- term Constitutional requirement. This it must be stated, is commendable on the President in view of the current precedence in the continent where leaders temper with their Constitutions to prolong their stay in office. In this regard, I score him ten out of ten. It would appear that this is the highest he would score in this conversation given his overall blemished record in upholding, defending and respecting the Constitution as the supreme law of the land as will be shown hereunder. The President however and somewhat uses his compliance with the two-term requirement as the basis on which he posits that he has respected the Constitution and consequently upholding the Rule of Law. The Botswana Gazette referred to above quotes the President to have said that “Everyone has to observe and respect the rule of law regardless of the status and President has to set an example that the Constitution is respected and followed even if it does not suit you…” The President with respect, is the last person to call upon everyone to observe the Rule of Law because history has already recorded him and harshly so, as one of those African Presidents who have not observed it during his tenure. This history follows hereunder.
Circumventing State Institutions
For any constitutional democracy to flourish and serve humanity, State institutions play pivotal and complementing roles to ensure that the Rule of Law is upheld by, in the words of Murray Gleeson that “all authority is subject to, and constrained by law.” For this to happen, these institutions should be allowed in all manner possible to be fully independent (and not cosmetic) from all forms of influence, manipulation or inducement. The immediate threat to these institutions are politicians from the ruling party. This is by virtue of them controlling the levers of power and authority whether lawfully conferred or self-conferred. These institutions do not independently source funding from parliament neither do they source their staffing and so on. Ministers, who are themselves under the direct supervision of the President, do the bidding for them. Once somebody does your bidding, you immediately outsource your independence to them. When the President assumed power, he moved State institutions to his office where he naturally has complete control over them. These are the Directorate on Corruption and Economic Crime (DCEC), Directorate on Intelligence Services (DIS), the Ombudsman, Department of Broadcasting Services (DBS) and others. While on paper these institutions are said to be independent, the fact that they are under the direct control and supervision of the President is reason enough to disable them from independently performing their oversight functions as required by law. No other intelligence is required to otherwise describe this arrangement.
How do we for example expect, if need be, the DCEC to investigate the President and those close to him for corruption if it reports directly to him with its head personally appointed by him? How do we expect DBS to give equal airtime on radio and television to opposition parties or to other Batswana organisations other than the BDP when the same reports to the President? One still vividly remembers the Botswana Television employee who was transferred just before the 2014 elections because he was not trusted by the powers that be to give preferential treatment to the ruling party – whatever it was? In this respect, State institutions were systematically reconfigured by the President the result of which was or is to profoundly circumvent the Rule of Law. A solid Wall of Berlin was constructed to preserve and consolidate massive executive power and influence. As the cherry on top and as already stated, people who lead these institutions are directly appointed by the President who in the circumstances, become blindly loyal to him. The consequences of blind loyalty are pretty obvious where I do not have to state them. As we all know, politicians thrive on and relish blind loyalty.
Ignoring Judicial Rulings
International institutions that have previously lauded Botswana as a country that upholds the Rule of Law have now turned their backs on this belief. Amongst these are Transparency International and Mo Ibrahim Foundation. I need not go into the details for I am talking respectfully to the audience well aware of these institutions. We are all aware that citizen litigants in whose favour courts have ruled are struggling to get these orders effected because the executive is simply not happy with them to enforce. This has become a common feature under the President as demonstrated by his own refusal to appoint Justice Motumise even when the Court of Appeal had so directed. We are all well aware that the President recently and grudgingly appointed Justice Motumise a High Court judge after the highest court in the land had ruled that there was no valid reason not to do so. This was after the Judicial Service Commission had recommended him for appointment. For the President to have tried to unnecessarily defy at such high cost the Court of Appeal is a serious act that borders on the Rule of Law. But the decision of the highest court in the land did not suit him yet he had to grudgingly comply with it. We will be well aware of what a grudge decision means. The Francistown High Court had ruled that two Ugandan refugees who had a matter before it should not be deported before that matter was resolved. This order was deliberately ignored by the President with the Ugandans reportedly denied reasonable access to legal representation and subsequently deported in the dead of night. Even if he wanted to deport them which he eventually did anyway, what irreparable harm if any would he have suffered had he respected the court order in the name of the Rule of Law? Botswana would have been the last country in the world to be expected to treat people who had run away from persecution in this manner. If I were to list other examples of ignoring judicial rulings, it would be as good as writing a book.