Section 35: a deal sealed in patriotism?

SHARE   |   Wednesday, 02 May 2018   |   By Omang Kilano

It is such ingenuous insights that we need in our compatriots which when applied constructively and optimistically can help to build and develop our country and society towards the greater good for our citizens.

Before we build an argument over what’s constructive and what’s optimistic in postmodernist times, it will be useful to advise that the issue as muted and debated by our learned lawyers is of utmost importance even to can disrupt the even tenor of national our national being.

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Suffice to observe that Section 35, synonymous with “The Masisi ouster” is a fact that demonstrates yet again that a constitution is a manmade tool for his own service.  There is nothing wrong with repairing your own tool. Notwithstanding the motivation with which it was brought to the fore, known to everyone as it were, section 35 has come as a rude shock to the ineptitude of our legal negotiators and drafters.

It is clear that even from a common sense and literal interpretation of the wording (not that there are any other worthy for to judge),

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There is a dimension here (Guardian 4/418), that Section 35 and its subsections 1, 2, 3, 4 and 5 do not read and work harmoniously with each other as ought to have been the intent and purpose of the legislators and their drafters. A new dimension shared by Rantao when he argues that the framers of the Constitution would not have intended a chaotic and embarrassing situation of this magnitude to befall the peoples of Botswana where its President would have limited power over his charges. Even more poignant is the assertion that Masisi as president would not like to be denied `the full exercise of the President’s powers: “That is not what the parliament intended when it came up with section 35…, for that construction of section 35(1) would render absurd our entire constitutional scheme”. How very true. No one can create a situation that is bound to throw them into a chaotic limbo.

Perhaps the national currency equivalence to the million-dollar question” would be when section 35 was formulated and for what express intentions and purposes.  The section was created in 1997 to pave way for Festus Mogae and subsequent other people to succeed Mr. Masire as fully fledged President of the Republic with the complete powers that come with the office. And how may we wiggle out from the section if it turns out it was badly crafted as to confuse and bastardise our express intentions and purposes?

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A mathematical reconstruction of the quandary in which we find ourselves is three dimensional. First, there is veiled dagger in whether or not the National Assembly is itself duly constituted when some or all of the members have not satisfied the bonafide requirements of the Electoral Act. If indeed it is true that some or all MPs have not lodged their “returns”, then it follows that the house will not be duly constituted as according to the letter of the writ of elections in question. In simple terms: where there are NO MPs (if disqualified by failure on the requirement of returns) then there is no Parliament. No Parliament equals No Speaker. No speaker equals no one to bend over and invoke Section 35 (4) for the election of President. That would be a limbo we may not want to celebrate at any time and by whatever means.

The second dimension, the Masisi nemesis, advances that Section 35 and the subsections in question when read together discount Masisi as substantive president. Instead he is to be recognized as interim albeit with circumscribed powers awaiting the election of President as at section 35(4).  A matter that could not have been the intention and purpose of the legislators and drafters, thanks to Rantao’s insightful anecdote. For if that were the intention and purpose of the framers of the constitution, then they would have intended and purposed to throw the country and nation into the limbo we find ourselves in.

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The third dimension has to do with Masisi’s substantive presidency being denied at section 35(2) and 35(3) whereupon the Speaker is charged to convene the House of Assembly for the purpose of electing a substantive president. The snag however is that when all 3 dimensions are considered together, there will be No Speaker to convene Parliament nor MPs to heed the call. Another limbo to which the framers of the constitution would not have intended or purposed, particularly when motivating for Mogae’s succession after Masire and the manner in which he discharged the duties of President. For that would be what Rantao rightly calls a chaotic and embarrassing situation.

Everyone agrees that the section is faulty and as with all other faults needs repair so that it says and means exactly what is intended. We shall do well to remember that it is the intention and purpose of section 35 that is being probed for its harmonious and practical application. It will be most helpful when all those endowed with the elegance of garb to not camouflage the truth by the jargon of the guild and to tread carefully yet again in seeking to elevate the virtues in reason and logical thought. If its broken, mend it.

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M.D Lecha



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