A clarion call has been made by some in our midst for the country’s Constitution to be reformed or amended. Among these have notably been legal scholars, ordinary Batswana and opposition political parties who opined that while the current Constitution has served us well from the independence era, it has however reached its sell-by date to still be relevant in this day and age. The Botswana Democratic Party (BDP) and its government are not wholly convinced. Both believe that save for a few, self-serving and cosmetic changes here and there, this Constitution is still relevant in this day and age to promote our democracy, social justice and social cohesion in all its manifests. One shouldn’t be surprised by the BDP’s position for the simple reason that it has accrued immense benefits from this Constitution which is the nub of this conversation. Consequently, any change to the status quo could significantly erode the BDP’s grip on power going forward. In discussing the subject matter, I will highlight a few instances wherein the BDP and its government immensely benefitted and continues to do so, from the Constitution hence its unwillingness to facilitate any fundamental reforms to it.
This dispensation it must be said, was brought around 1997 by the former President Rre Q.K.J. Masire as a tool to fight against BDP’s internal battles for the control of the party. Through automatic succession, the Constitution was amended by the BDP numerical advantage in parliament where such Constitution provides that the Vice President of the Republic automatically becomes the President should the incumbent be unable to discharge his/her presidential duties owing to death, resignation and so on. As a result of the BDP’s internal battles then, Rre Masire was forced to leave office before the end of his term. This created the current situation where subsequent Presidents never finish their five-year terms acquired after the general elections. The current President of the Republic is not in office as a result of having won an election. This it must be said as well that Batswana have not elected the current BDP President which is a serious affront to democracy in the context of an individual becoming the Head of State after a general election. Whatever artificial panel-beating is attempted at justifying automatic succession, the BDP has imposed it on Batswana as a narrow party self-serving interest over the greater national interest. As we all know, the lifespan of an elected government is five years with the expectation that the President of such government would complete the term barring any compelling, unforeseen circumstances. Because of this self-serving interest occasioned by the automatic succession dispensation, the BDP wouldn’t be eager to amend the Constitution to scrap this dispensation.
Section 41 of the Constitution
According to this Section, the President cannot be taken to court for decisions he/she would have taken in official or private capacities. The highest court in the land which is the Court of Appeal, has confirmed the constitutionality and legality of Section 41 in a case where the late Rre Gomolemo Motswaledi was challenging the legality of the former President Ian Khama when he suspended him from the Secretary General position of the BDP back then. This law simply means that the Presidents are above the law which makes them susceptible to abuse their offices, corruption, manipulate other processes and procedures in their favour and those close to them. There are allegations that the current President is implicated in the National Petroleum Fund heist gripping the country. Because he is shielded from being visited by the law, he will never in the true sense or otherwise be approached by any law-enforcing agency to prove or disprove these allegations against him. Part of these allegations is that the BDP may have benefitted from the proceeds of the heist. It is a foregone conclusion that if it is so, the BDP wouldn’t be willing to change Section 41 because it is in its interest to keep it.
State institutions under the Office of the President
All State institutions meant to promote good governance, accountability and transparency in the quest to ensuring the Rule of Law are under the firm grip of the President. These are the Directorate on Corruption and Economic Crime; the Directorate on Public Prosecutions; the Independent Electoral Commission and so on. The President solely appoints and fires the heads of these institutions and on this point alone, these heads become blind loyalists to the President as the appointing authority. The arguments always provided by these heads that they are independent is a hopeless myth meant to please the master in order to keep their plum jobs. It is a broken record we have listened to over and over again. It is fair to include parliament as well because as an institution meant to provide oversight over the executive, it has spectacularly and dramatically grew cold feet to perform that function. BDP MPs have been party to voting for bad laws which they have during the passage of time and for populist purposes, turned against. One such law is the Electoral Amendment Act 2016.
By virtue of the President exercising ‘unfettered’ control over State institutions is reason enough why Isaac Kgosi’s docket has gathered dust on the shelf for so long. Nobody has mustered the courage to take him to court lest they fall out of favour with the master. Part of the reason why other NPF heists that may have taken place in the past may not be uncovered is that no institution may be able to do so because of political influence amongst others. It must be mentioned that the current NPF heist was intercepted by the bank that was meant to transmit funds to Israel. At political levels, party functionaries and the party itself for that matter would be at an enhanced advantage to have access to State resources. This because the State President who is also the party President would be at a more advantaged position to influence disbursement of such resources fully aware that he/she is protected by Section 41 of the Constitution referred to above. This should tell us that notwithstanding corruption being so rife to be referred to by some as institutionalised, there is currently no high-profile person in jail convicted for grand corruption. It could be that critical information to secure conviction is somehow withheld or that would-be suspects are protected by the powers that be. Whatever the case, the outcome is the same. No party enjoying that lifetime advantage would be willing to change the status quo by amending the Constitution.
They say absolute power corrupts absolutely. The BDP has tasted and exercised political power for over five decades and it will therefore be unreasonable to expect the party to cheaply relinquish political power. Reforming the Constitution will in itself and by itself not be in the best interests of the BDP because it will strip the President of so much power vested in him/her; it will substantially strip the President of direct influence on State institutions; it will scrap the automatic succession dispensation whose beneficiary is the BDP; it will make parliament exercise expected oversight functions over the executive and so on. This would fundamentally weaken the BDP’s grip on narrow self-serving political power interests as is currently the case. The BDP is firmly in the political comfort zone and wouldn’t want the status quo to be disturbed because it has, and continues to fundamentally serve it. The current Constitution in my view, has long reached its sell-by date and must be seriously amended in the national interest. But with the BDP’s self-serving interests uppermost, nothing suggests that the party is anywhere near to fundamentally amending it. Judge for Yourself!