Botswana’s first free elections were held in March 1965 under the supervision of the British colonial state officials. It was not until 1969 that the first post-colonial era general elections were held, under the supervision of a Supervisor of Elections as provided for in the post-independence Constitution. In particular section 66 of the Constitution stipulated that there shall be a Supervisor of Elections whose duty shall be to exercise general supervision over the registration of voters at elections of the elected members of the National Assembly. Section 66 (2) of the Constitution stipulated that the office of the Supervisor of Elections shall be held by a public officer who had been designated by the Public Service Commission for that purpose. The very first general elections of March 1965 which brought about self-government to Botswana and the second general elections 1969 were all supervised by one George Winstanley. Mr Winstanley started his career as a junior officer in the colonial administration and rose through the ranks to become the Clerk of both the colonial area Executive Council and the Legislative Council. During the 1969 general elections Mr Winstanley was the Permanent Secretary in the Ministry of Agriculture (Winstanley 2000). The 1974 and 1979 general elections were supervised by the then Permanent Secretary to the President, Mr P. L. Steenkamp, and 1984 general elections were supervised by Mr Festus Mogae, who had succeeded Mr Steenkamp as Permanent Secretary to the President. Mr Mogae went on to become the Vice President and later the President of Botswana.
Following incessant accusations and complaints from Botswana’s opposition parties that the elections were not free and fair because they were being supervised by the PSP who was directly accountable to the President (Balule 2008) the supervision of elections was transferred from the office of the PSP to a new Supervisor of Elections, who though a civil servant, was not legally accountable to the PSP for the conduct of elections. This Supervisor of Elections still relied on logistical and financial assistance from the Office of the President to run the 1989 and 1994 general elections. The situation was not helped by the fact that this particular Supervisor of Elections, Mr N T K Mmono, had once stood for elections under the ruling party ticket (Tshosa 2007).
It was only in 1997, some thirty years and six general elections (after Botswana’s independence), that electoral management was moved from the Office of the President to an ‘independent’ electoral management body, the Independent Electoral Commission (the IEC). The IEC was created in terms of the Constitution (Amendment) Act No 18/1997 to replace the Office of the Supervisor of Elections. The IEC’s mandate, as spelt out in the Constitution, is to conduct and supervise the elections of elected members of the National Assembly and members of Local Authorities, and to ensure that elections are conducted efficiently, properly, freely and fairly. It is important to note, however, that the Constitution does not define what efficiently, properly freely and more importantly for our purpose, fairly, all mean, nor does it provide guidelines or list elements of efficiently, properly, freely and fairly run elections. According to Balule (2008), a Constitution should concern itself only with the essential principles, leaving matters of detail to the legislative and regulatory schemes, such as the Electoral Act. The Constitutional amendment also established the Office of the Secretary to the IEC who is the Chief Executive Officer of the IEC. The Constitution further enjoins the IEC to direct and supervise the Secretary of the IEC in regard to the exercise of his functions under the Electoral Act. It is important to note that the Botswana constitution does not expressly guarantee the institutional independence of the country’s IEC (Balule 2008). The IEC has supervised the 1999, 2004 and 2009 general elections and subsequent bye elections. The Chairman of the IEC is an eminently qualified person who is a judge of the High Court of Botswana, and the Deputy Chairman of the IEC is required by the Constitution to be a legal practitioner. Other members of the Commission are appointed by the Judicial Service Commission from a list of persons recommended by the All Party Conference in accordance with Section 65A(3) of the Constitution (as amended).
On the surface it would appear that under this arrangement Botswana has moved from an electoral management system where government runs elections under supervisory authority, to a system where there is an independent electoral management body. But even with the creation of the IEC, perceptions that the IEC is not independent still persist. These perceptions of the IEC’s lack of independence have been rebutted by the former Chairman of the IEC, Justice Mosojane (2010a), who argues that the IEC is independent both in law and in practice. Justice Mosojane concedes however that the term ‘independent’ does not appear anywhere else in the provisions dealing with Botswana’s EMB, or anywhere else in the Constitution of Botswana, nor is it defined in the Interpretation Act. Mosojane admits that he and his colleagues have had to rely on the English dictionary meaning of the term ‘independence’ in the execution of their mandate, which, he posits, is a well known canon of interpretation of statues that where a word appearing in a statute is not defined or given special meaning, it must bear its ordinary dictionary meaning. Interestingly, Mosojane also points out that the formal independence of an EMB is not in itself a guarantee that the elections will be free and fair, and that sometimes there can be little point in making an electoral commission independent, without giving it the necessary tools to level the playing field. According to Mosojane (2010) ‘The IEC can only go as far as the law permits it to go’ (emphasis added). To grapple with these issue, one needs to examine the manner of the appointment of the IEC chief executive officer, the IEC’s reliance on the civil service personnel, the choice of elections dates and access to public media. I shall look at each one of these in turn.
The Appointment of the IEC Chief Executive
The Secretary to the IEC is appointed by the President in terms of the Constitution, and it is only the President who can remove or suspend the Secretary of the IEC from office, and even then only on recommendations of a tribunal. The Secretary may be removed from office only for inability to perform the functions of his office arising from infirmity of body or mind, or for misbehavior. The Constitution stipulates that such a person should be a citizen of Botswana, should not have been declared insolvent or bankrupt and should not have been convicted of any offense involving dishonesty in any country. But the procedure of the appointment of the Secretary has been met with suspicion by the ruling party detractors, with some seeing a continuity with pre-IEC days. Some have argued that even with the creation of the IEC, it is still the President who appoints the Secretary of the IEC, and not the IEC itself, or even the JSC. That is to say, somehow the executive does not want to let go the supervision of election in Botswana. But according to Mosojane (2010a) it matters not how the IEC chief executive is appointed, for as long as he has security of tenure and is answerable not to the appointing authority, but to the IEC. Mosojane (2010b) posits that only the IEC can question the IEC’s chief executive relative to his day to day responsibilities, and that the Constitution of Botswana, and in particular Section 66(3) on the function of the Secretary of the IEC, is supreme. Ordinarily where an Act of Parliament is inconsistent with the Constitution, the Constitution is supposed to prevail.
While Justice Mosojane position should be reassuring, it appears that there is an ambiguity with regard to the relationship between the Permanent Secretary to the President (PSP) and the Executive Secretary of the IEC. Following allegations of the meddling of the Executive branch into the affairs the IEC, the PSP issued a public statement in which he stated that his office is mandated by law to manage and supervise the entire public service, including independent departments such as the IEC, and that as the PSP, he is Constitutionally mandated to monitor the performance of all senior public servants (Molale 2008). This was in apparent reference to a public statement attributed to Justice Mosojane, in which the Chairman of the IEC was quoted as saying that the PSP wants to test his powers against everybody and often recognized no boundaries. According to the PSP, the allegations of his meddling arose as a result of his lawful actions exercising supervisory and managerial functions in respect of the IEC’s staff. Molale argues that it is in the conduct of elections that the IEC operates independently. A closer reading of this section 66(3) of the Constitution also seems to give credence to the position of the PSP, in that it only says the Secretary of the IEC is subject to the direction and supervision of the IEC in his general supervision over the registration of voters for elections and over the conduct of such election. In other words, the independence of the Secretary of the IEC is limited or restricted to the supervision and registration of voters only, and in other respects, the IEC chief is accountable to the PSP, like other senior public officers of his rank. As Molale points out ’it is in the conduct of elections that the IEC operates independently, and I, as the PSP, have never interfered with that process’ (Molale 2008, emphasis added).
In stating so boldly and forcibly his powers in relation to the IEC Executive Secretary, the PSP has inadvertently buttressed the public perceptions and the argument by Balule (2008) that Botswana’s IEC lacks the necessary administrative independence. But the limitation or restriction on the mandate of the IEC and its chief executive to the supervision of elections only is inconsistent with section 65(A) (12) (c) of the Constitution which imposes an obligation on the IEC to ensure that elections are also conducted fairly in addition to being conducted efficiently, properly and freely. But as Mosojane (2010a) points out, “The IEC can only go as far as the law permits it to go’. This public spat between the PSP and the former IEC Chairman reveals that Botswana has not successfully moved away from an electoral management system where government runs elections under supervisory authority, to an electoral management system where the electoral management body is completely independent of government. It also raises questions about whether it was the intention of the country’s lawmakers to make Botswana’s IEC only narrowly independent with regard to the registration of voters and supervision of elections, and not in all respects, such as leveling the political playing field to ensure that elections are also fair, as opposed to just being conducted efficiently, properly and freely. This leads to the conclusion that the Botswana government, and the ruling party in particular, are not yet ready to give up its complete control of the IEC.
Botswana’s IEC Reliance On the Civil Service.
Botswana’s EMB has no staff of its own and relies on civil servants to conduct and run its affairs, including its daily activities. The IEC staff remain civil servants, governed by the Public Service Act, its terms and conditions of service and the general orders. These civil servants can also be transferred or re-deployed to other government departments and can be moved from those departments to the IEC, all at the pleasure of the Director of the Public Service Management, who is himself accountable to the PSP. Molale (2008) is on record stating that as the PSP, he is Constitutionally mandated to appoint, transfer, discipline public officers, including IEC staff. Since its inception, the IEC has held several workshops and a number of recommendations have been made on how it can improve its image and deal with the perception that it is not independent of government (Botswana Government 2005b; Sedudubudu and Lekorwe 2005, Rukambe et al 2010). But many important proposals that can enhance the independent stature of the IEC have to be vetted by the Executive arm of government. This was revealed, perhaps inadvertently by the former minister responsible for parliamentary affairs, Mr Phandu Skelemani (2006) when addressing the Committee of Supplies on the 2006/2007 budget estimates. The Minister pointed out that “The Independent Electoral Commission has compiled recommendations from stakeholders’ workshop and has forwarded them to his office for consideration and possible approval by government’ (emphasis added). Some of the recommendations were that:
a) the IEC should determine its staffing needs and recruitment policy, and develop appropriate terms of employment that are consistent with the nature and status of the institution.
b) IEC should be accountable to Parliament and should present and defend its own budgetary requirements at a parliamentary committee stage.
c) Secretary of the IEC should be appointed by the IEC to whom he is accountable, rather than the President.
d) the task of the delimitation of constituency boundaries is given to the IEC.
e) the general election date should be fixed in the Constitution and should not be the prerogative of the President or Minister.
None of these recommendations have been approved by government by the time Botswana went for its 10th general elections in October 2009. The foregoing discussion reveals that Botswana’s IEC is structurally dependent of the executive and therefore lacks the necessary institutional independence (Balule 2008). It is submitted here that an IEC that is structurally dependent on the government of the day and lacks institutional independence cannot realistically be expected to be able to ensure that elections are free and fair. This is the point to which I now turn.
*Professor Mogalakwe teaches Sociology at the University of Botswana. This is an excerpt of an article published by Journal for Contemporary African