Constitutional Review Process runs the risk of illegitimacy, public rejection
Long before he established the Commission of Inquiry without public participation, President Mokgweetsi Masisi was under tremendous pressure to set the ball rolling on the Constitutional Review Process. The pressure is still sustained particularly from the Opposition, civil societies, legal scholars and some members of the public. These structures had become increasingly edgy considering the President’s term in office is edging closer to the mid-way period. In the meantime, he held his cards very close to his chest by not providing an inclination as to how he intents approaching the process. It was anybody’s guess.
When he finally revealed the colours of his cards, almost everyone was surprised if not shocked by the revelation. The horses had literally bolted so to speak. Loud voices are still raised to fever pitch levels to the effect that Parliament and public participation in the Constitutional Review Process are a prerequisite to ensure legitimacy during and once the process is over. But lo and behold, the President has rendered the process exclusively his own considering the route he has adopted. At the end of it all, the Commission Chairman who is the immediate past Chief Justice, Maruping Dibotelo, will present a report to the President for him to decide on his own what to do with it. Nobody knows whether he will make it public or not.
By rendering the Constitutional Review process exclusively his own and choosing to be tone-deaf to dissenting stakeholders’ voices, Masisi is displaying dictatorial tendencies to such an emotive national issue the implications of which are too ghastly to comprehend. I have made the following point before and I am compelled to repeat it: why has the President kept Parliament at arm’s length yet it is the ultimate institution vested with the power and authority to review and/or amend the Constitution as per Sections 86 and 89. It would have done Masisi a lot of good if he had explained why he chose the Commission of Inquiry instead of a different approach. The President’s approach is more or less like the Chairman of the Judicial Service Commission outsourcing the process of interviewing candidates for judgeship to an external body solely appointed by the Chairman with the Chairman later coming to the Commission to seek endorsement and validation of the results of the interview. It stands to reason along the same vein that once the Commission would have handed the report, the President will more likely approach Parliament to endorse the findings and recommendations of the Commission.
Most certainly realising in his view that the President was following a dangerous route, the Leader of Opposition, Dumelang Saleshando wrote the President before and after he established the Commission of Inquiry on the basis that the Opposition bloc represents about 48% of the voting population. In addition to this, is the aspect of inclusivity. Masisi was, and is still duty bound to respond to the two letters on account that the Opposition bloc is Constitutionally empowered to demand answers from the Executive led by the President. The same answers are demanded and provided in Parliament. For Masisi to ignore responding to Saleshando’s letters let alone acknowledging receipt is not only demeaning the position but also ignoring the 48% referred to above. To be brutally honest, the President is ignoring almost half of other Batswana voices in the Constitutional Review process.
Civil society voices including trade unions whose main mandate amongst others is to be the voice of the voiceless, have not been left behind in criticising the President’s ‘lone ranger’ attitude in the Constitutional Review process. Some of the trade union leadership tried in vain to meet the President. It puzzles me why would he shut them out after driving the narrative that his government was on good talking terms with them. The narrative implied the President would be ready and willing to give them an ear however uncomfortable issues raised could be. Since the process has begun on his terms of reference and the horses have bolted, it will be moot for the meeting to take place. But all is not lost since the process could still be salvaged for the public good. As matters stand, it is fair to say only the President’s believers have been catered for in the Constitutional Review process since the other voices who as a matter of course have a vested interest in the process as well, have been firmly shut out.
It is surprising that after publicly pronouncing he has resolved to lead a country of inclusivity, the President has all but somersaulted on this resolution. I had all the confidence that he could not renege on the inclusivity promise. But here we are….it has happened, it is happening and looks set to happen in the future. A question should be asked: why is the President embarking alone on a national issue of such magnitude and importance? Well, it is not difficult to find out. The President and his party believe and wrongly so, that they have a monopoly of wisdom and architecture to identify and provide solutions to the country’s political and socio-economic problems and challenges. This believe is premised from the fact that they have won elections to govern the country and therefore, require no external assistance to govern the country. It is correct that the Botswana Democratic Party (BDP) has won elections. But in a true Constitutional democracy, the winners of elections do not have a monopoly of superior thinking. That is why the President had correctly talked about an inclusive society where no one is left behind. He was recognising and appreciating the fact that while his political party the BDP had won elections, other Batswana who had not voted for his party, were still entitled to play a critical role in the national issues of importance like the Constitutional Review process amongst others. We continually witness how the BDP in parliament rejects about everything from the Opposition and civil societies however beneficial they could be to the country. In the context of the BDP’s behaviour and conduct in parliament, it is fair to conclude the President has taken a cue from his political party or vice versa. Now that in the bigger schemes of things the Constitutional Review process is essentially the President’s sole project, what is likely to become of it once the Commissioners have submitted the report on Independence Day this year? It brings me to the question of whether all Batswana will regard it legitimate and by extension, have confidence in it. But what is legitimacy in the context of the process?
Brian Chau describes it as ‘procedural framework and the actual process of drafting are both critical elements in establishing Constitutional legitimacy’. If this description is anything to go by, it stands to reason the Constitutional Review process falls far too short to claim the legitimacy tag.
The point of departure is to say upfront that there is no way the process will be deemed legitimate in order to inspire public confidence on account that the 48% will feel neglected or denied and justifiably so, of a life changing opportunity to have participated in the process from the word go from which a buy-in from them could be achieved. Civil societies that have opposed the route the President has chosen will deem the process a sham. Not only is legitimacy and confidence expected from all the citizens represented by their various structures, but equally so from the international community. It is the same as expecting the international community to have faith and by extension legitimacy in our electoral process when the BDP still refuses to the proposals to amend the Electoral Act and most importantly, to create a truly Independent Electoral Commission from its close proximity to political leadership in power. Botswana has been referred to as a beacon of democracy notwithstanding the glaring flaws that continue to be exposed. One would have expected the Constitutional Review process to have redeemed our battered beacon of democracy. But what you see, unfortunately, is what you get. Our democracy conundrum is further worsened or complicated by the kind of repressive Bills currently before parliament amongst them the much roundly criticised Criminal Procedure and Evidence (Controlled Investigations) Bill, 2022 wherein government will have a free reign amongst others over our civil liberties in a fashion least expected in a thriving democracy.
In conclusion, the President has resolved to remain tone-deaf to the official Opposition in parliament, various civil society groups with some having made formal applications to engage him including trade unions. From my observation, his demeanor depicts someone whose attitude is my way or the highway. The swelling disapproval of the route he has adopted to review the sacrosanct law of the land particularly from key structures whose mandates are to promote our democracy for the greater good of Batswana is so telling that the process stands no chance to claim a shred of the required legitimacy and the buy-in. It is sad the President who came in on a whirlwind ticket of morero (consultation) and inclusivity has abandoned the ticket at a crucial point when it is most desirable.