The President remains above the law
Following a countrywide consultative review by the Presidential Commission of Inquiry into the Review of the Constitution of Botswana, Cabinet has rejected the suggestion by some Batswana that a President should not be above the law.
One of the recommendations by Batswana was that the Constitution seems to give the President excessive powers that seem to set him or her above the law.
Some people opposed a sitting President’s immunity from criminal prosecution and advocated the inclusion of a provision for indictment and impeachment or recalling of the President in the reviewed Constitution but Cabinet has since rejected this.
Giving reasons, they say, “Government rejected the proposal on the basis that lack of immunity will cause instability such as where the President is undergoing legal proceedings or when a custodial sentence is imposed.” Cabinet further rejected Batswana indicating that they have made comparative research with other jurisdictions such as Ghana, the Philippines and the United States of America (USA).
“Comparative research with other jurisdictions such as Ghana and Namibia indicates that immunity can be extended even after the President has left office subject to certain conditions whereas Section 41 of the Constitution of Botswana limits immunity to the tenure of office,” Cabinet argues.
Batswana had also proposed that a sitting President should be liable to impeachment in the reviewed Constitution. Cabinet has rejected this saying that the President is not the only one with Executive powers and as such he/she cannot bear the burden alone.
“The people who deliberate on the decision to impeach the President are the same people who would have been appointed by the President. A comparative research with other jurisdictions such as
Kenya,
USA, Zambia and Zimbabwe indicates that where a Constitution places the power to impeach and remove the President on persons who are in the majority in the legislative house, then it becomes difficult to exercise that power as they will vote against the motion to impeach the President and that it may lead to instability within the nation,” Cabinet believes.
Batswana had also proposed that the senior positions in government should be nominated by the President but approved by Parliament, but Cabinet has also rejected this saying a President as head of the Executive, has discretion to determine who to appoint to such positions.
On other matters, Batswana had also proposed that the government should enhance the independence of key institutions such as the Independent Electoral Commission (IEC), the Directorate of Intelligence and Security (DIS), the Directorate of Public Prosecutions (DPP), the Directorate on Corruption and Economic Crime (DCEC) and the Financial Intelligence Agency (FIA) as well as the office of the Ombudsman.
Batswana said for the organs to be seen as independent, they should seize reporting to the Office of the President (OP) but they should report to Parliament instead, but Cabinet rejected this too. Cabinet believes that the legislative instruments that established the institutions already require them to report to Parliament and that the President, as head of the Executive, has discretion to determine who to appoint to these positions.
Batswana had also wanted the new Constitution to allow for non-performing ministers and councillors to be recalled, but Cabinet has refused. They say it will be difficult to define non-performance in relation to members of Parliament.
“That recall will create a vacancy in the National Assembly or in the council requiring a by-election which has financial implications,” they argued.
There was also a proposal from Batswana that voting in Parliament should be done through a secret ballot to assert the independence of Parliament, but Cabinet rejected this saying Batswana need to know how their representatives vote for issues in Parliament.