The People’s Constitution

he Constitution is a living document. At all material times, it must breathe life. It must carry the aspirations of the people.

The Constitution is a fortress to which citizens find refuge in times of peril. It is the ultimate adjudicator in times of dispute. The Constitution provides for a Bill of Rights, guaranteeing to one and all, the inalienable rights that every person is born with. It must equally spell out what are generally referred to as ‘third-generation rights, the socio-economic rights. The question of Constitutional review has reverberated for the longest period in this country. In fact, former Member of Parliament for Gaborone Central Dr. Margaret Nasha says it has been under discussion since the 1970s, when the late MP for Tswapong, Gaefalale Sebeso moved a motion on the Independence of Parliament. Well, it seems there’s now a concerted effort to pressure the current Botswana Democratic Party (BDP) government to honour its word as well as the promises it has long made to Batswana. President Mokgweetsi Masisi is on record promising countless times that his government would carry a comprehensive review of the constitution. He is now in his second year in office, and barring the Covid-19 pandemic, should have delivered on this one promise. First, there was that muffled explanation about the introduction of mother-tongue teaching in public schools as an excuse for not starting the comprehensive review of the constitution. Well, now that the Minister of Basic Education, Fidelis Molao has elaborated how that process of mother-tongue instruction is going to be undertaken in public schools, we can all assume that the ground is ripe for the Constitutional review to begin in earnest. Furthermore, another mitigating factor is that the one-year State of Public Health Emergency is finally coming to an end on Independence Day this year. This is a perfect opportunity for Masisi to endear himself to Batswana, to whom he has professed an abiding love, by heeding their pleas and immediately starting the Constitutional Review. Perhaps what may pose a little distraction could be the envisaged Motion of No Confidence that the Leader of Opposition and Member of Parliament for Maun West, Dumelang Saleshando intends to bring against Masisi’s government when Parliament resumes in November. But, with the benefit of hindsight, having been there when the late Dr. Kenneth Koma pulled the same stunt on the late Sir Ketumile Masire’s government – I can unflinchingly vouch that Saleshando’s attempt will be just another damp squib! In any case, recent voting patterns in Parliament also attest to the preposterousness of the Alternative Group’s prospects given that MPs especially from the Ruling Group don’t vote with their conscience, but along the party caucus line.

So, let’s forget the Motion of No Confidence for a moment because it is inconsequential for the purpose of this column, but yes, it will certainly provide a publicity boost for the UDC ahead of the 2024 general election, but then again, that’s providing they can sustain the momentum! Let us concentrate on the Constitutional review. Let’s start with the so-called principle of separation of powers between the three arms of government – Executive, Judiciary and Legislature. What the Constitution currently provides for is an Executive President whose influence permeates all the other arms of government. Now that we know how precarious such a position places us, thanks to the recent apocalyptic epoch which was presided over by Masisi’s predecessor, let us undertake a dispassionate plebiscite to solicit unadulterated views of Batswana on this question (separation of powers). In previous submissions that he made in various forums, Dr. Koma has also written passionately about the need to dissolve the House of Chiefs (Ntlo Ya Dikgosi) and in its stead creating what he called a ‘House of Representatives. This would be a House constituted by what you would normally call civil society groups, including representatives of minority and special interest groups. It is time we honoured Koma posthumously by seriously interrogating his views. This Koma is the same visionary that bequeathed us what we today know as the Independent Electoral Commission; who ensured that 18-year-olds enjoyed the right of franchise as well as extended the same right to Batswana living outside (proxy voting). Past the separation of powers, which certainly is a loaded topic straddling power relations between the three arms of government, the appointment of Ministers, MPs, and Judges, we must also consider whether to directly vote the country’s President or adopt a hybrid system between UDC’s preferred system of Proportional Representation or the BDP’s Winner Takes All. Again, let me confess that I really don’t know of any country that directly votes for its president. My contention is that the Presidential candidate is a product of a Political Party and that the Party, through its internal mechanisms (primary elections) elects this candidate.So, frankly speaking, and in all truthfulness, the people (electorate in a general election) are merely being used to endorse a party candidate, unless you want to pretend that Political Parties are themselves, democratic institutions! It is axiomatic therefore, that the people really have no say whatsoever in the party’s internal processes that eventually produce this candidate. Their only usefulness is to endorse this party candidate in a five-year electoral ritual euphemistically called democracy, which is nothing but a ploy designed to lull and dampen the minds of men.Indeed if we want to speak of a separation of powers, we must revisit our traditional forms of governance to see how executive powers were invested in and performed by the Kgosi; how the Kgotla performed the function of Parliament, and how Dikgosana, Mephato (Age Regiments) and the Kgosi exercised judicial powers.

Yes, I concede that the Kgosi was and is not elected but assumes that function by virtue of birth. This makes his appointment contentious and undemocratic, but do tell me, which system is democratic? These are some of the questions that I expect to be raised in the Constitutional review, as Batswana finally participate in a process that will define their destiny and that of their progeny The Constitution must clearly spell out and define the individual’s relation to the State and from that basis, the State’s relation to the individual.

The protection of every citizen’s rights and the unfettered exercise of these rights must take precedence in a Basic Law, which is the product of a collective. This is my one-Thebe submission for now. I implore our leaders to ensure transparency in this exercise so that it can enjoy a semblance of legitimacy!