Constitution must guarantee socioeconomic rights
NGO motherbody starts the ball rolling
Botswana Council of Non- Governmental Organisations ( BOCONGO) is working on establishing a Civil Society Working Group on the Review of the Constitution.
The country’s civil society motherbody hit the ground running, spearheading discussions that would be significant in the process of the Constitutional Review.
Earlier, they launched the African Peer Review Mechanism ( APRM) Report for Botswana that highlighted 12 significant governance issues that needed close attention as the country plans to review the Constitution.
Chairman of BOCONGO, Olebile Machete said this week that Botswana needs to reflect on the extent to which the Constitution nurtures democracy and provides an environment conducive for the will of the people of Botswana to reign supreme.
“Can we look to our Constitution for enhancement of our democracy? For example, the Constitution mandates Judicial Service Commission ( JSC) to appoint Members of the Independent Electoral Commission ( IEC), while the Secretary of the IEC is appointed by the President,” Machete said.
He added that the JSC is appointed by the President with the exception of one member who is a nominee of Law Society of Botswana.
He said working with the President, the same JSC appoints judges of the High Court, while the President appoints Court of Appeal Justices.
He said Parliament, which is the only mandate holder of the people, would seem to be limited in its role as a third government, further explaining that unless in other jurisdictions where an aspiring Judge is subjected to a public interview led by a Select Committee of Parliament.
“In this case, it would seem Parliament doesn’t even have a say in the appointment of members of the IEC,” Machete says. Machete, who was speaking at the Constitutional Review consultative forum organised by BOCONGO in collaboration with South African Institute of International Affairs ( SAIIA) said this is the time to consider ratification of the International Convention of Economic, Social and Cultural Rights.
He said while the Constitution as it is guarantees citizens political and civil rights, it does not guarantee socioeconomic rights.
He argued that there has been some school of thought that although the Constitution guarantees some of these civic and political rights, the same constitution subjects enjoyment of some of the rights, to a subservient act of Parliament that limits the enjoyment of the very right guaranteed by the Constitution.
“Is it not time for us to consider the guarantee of socio- economic rights by the Constitution. For example, is it not time that we looked to the Constitution to address issues such as land rights? Is it not time that we looked to our Constitution to address the prevalent lack of access to land bedevilling the country, while chunks of our land lie unproductive for one reason or another?
“Issues such as right to Healthshould provision of the same remain a privilege to the populace or should it be a fundamental right guaranteed by the Constitution?” Machete wondered.
As far as accountability and oversight are concerned, Machete said this envisaged Constitutional Review gives the nation an opportunity to enhance oversight. He wondered whether currently Parliament is empowered to provide the obligatory oversight.
Further questioning whether there are sufficient constitutionally established and protected institutions to support oversight functions such as is the case with Chapter 9 institutions in South Africa.
“What would it take for these imperatives to be achieved? We have seen utilisation of the Institutions seriously holding the Executive accountable in South Africa. Is it not the Botswana that we want, where we are provided with sufficient assurances?” he asked.
Further, he added that these issues would form significant arguments for the political leadership to consider during the impending Constitutional Review.
Machete said the contribution of NGOs to the country’s development over the years, in different facets of society provides them with a right mixed bag for them to engage on serious issues of national interest as their contribution draws from both the diversity of their services at the grassroots levels, as well as appreciation of how legislation, policies, and programmes affect those that they serve.
When NGOs launched the APRM, the hope was that the 12 identified governance issues including, Human Rights, Separation of Powers, Transparency and Accountability, Vulnerable Groups, Education, Sustainable Development and Natural Resource Management, Access to Land and Infrastructure, Food Security, Crime and Security and Foreign Policy would inform the new Constitution.
President Mokgweetsi Masisi’s government on the other hand, has expressed the desire to commence the Constitutional Review as soon as practically possible. This week, Minister of Presidential Affairs, Governance and Public Administration, Dumizweni Mthimkhulu said the constitution is a sensitive document and should, therefore, be reviewed with utmost caution and sober minds.
“I am certain that nobody in Botswana wishes for this envisaged process to be a cause of untenable divisions amongst us. Thus far, we have been a united and proud nation, and we must maintain the status quo,” the junior minister said.