ADAM PHETLHE
In terms of the UDC communication dated 12 September 2022 titled ‘Re: Expression of Interest To Contest 2024 Elections Under UDC’ and signed by Advocate Duma Gideon Boko, it says ‘The UDC NEC at its meeting resolved to ask all its seating MPs and Councillors who have been expelled or are members of the Botswana Congress Party (BCP) to in writing communicate Expression of Interest to contest the 2024 General Elections under its ticket. The deadline for the Expression of Interest is 26th September 2022. It was further resolved all those who submit the Expression of Interest will automatically become the party’s candidates on the 2024 General Elections’. UDC President announced a fortnight ago or so that the party will write to the Speaker of the National Assembly to inform him the non-compliant MPs are no longer members of the UDC. This move will expectedly cause the Speaker to declare such seats vacant and consequently by-elections called to fill them. But are by-elections a sealed deal once the UDC has communicated with the Speaker? Probably easier said than done! It is my considered view that ‘The Expression of Interest’ communication is possibly borne out of the vicious fight between Adv Boko and Hon Dumelang Saleshando wherein the targeted MPs and Councillors become the collateral damage. It is in the context of the ‘Expression of Interest’ communication that I bring the two instruments because they are relevant in dealing with the circumstances under which a vacant parliamentary seat is created. What do the two instrument say are the circumstances under which a seat could be declared vacant?
Before attempting to answer the question, a few issues in my view are hidden in the said communication. Specifically, the communication is targeting BCP aligned representatives in order to oust them from their elected positions. This owing to the strained relationship between Boko and Saleshando and by extension between UDC and BCP. The communication firstly, stands to serve as an attractive and juicy carrot dangled in front of BCP MPs and Councillors on the understanding that they will have a free ride to the 2024 general election. Truth be told, no sitting politicians want to be challenged hence highly likely some will be attracted by the attractive, juicy carrot. Secondly, it puts untold pressure on these members considering we have long reached and perfected the politics of the stomach where principles and values of political parties are rendered inconsequential. Thirdly, it seeks to bring instability in the BCP in that while it has issued a statement to the effect that none of its members should comply with the ultimatum, the politics of the stomach could prevail and render BCP instruction of no force or effect. In the process, those who do not comply with the BCP instruction will be running the risk of expulsion. The recent expulsions of five now four MPs is the case in point All in all, this is a political ploy meant to counter the BCP aligned by ejecting them from parliament and Council chambers with the hope that those positions will be filled by UDC friendly individuals. Only time will tell if the ‘Expression of Interest’ will deliver the expected crushing blow on the BCP.
I am going to rely on the Floor Crossing Bill with respect to circumstances under which a seat can be declared vacant because I could not access the law itself on the same. The Bill provided that ‘The objective of the Bill is to cause a vacancy in the seat of an elected MP who resigns from the political party on whose ticket they were elected to parliament….Similarly, it seeks to cause a vacancy in the seat of an elected member who, having being elected to the National Assembly, as an independent candidate, becomes a member of a political party’. I am assuming these provisions were passed into the actual law in their original forms. It is worth it to see what the Botswana and Uganda Constitutions provide for MPs to cease to be such.
Section 68(1) of Botswana Constitution on Tenure of office of Members provides that ‘The seat of an Elected Member or a Specially Elected Member of the National Assembly shall become vacant (a) upon the dissolution of Parliament; (b) if he or she is absent from the sittings of the Assembly for such period and in such circumstances as may be prescribed in the rules of procedure of the Assembly; (c) subject to the provisions of subsections (2) to (3) of this Section, if any circumstances arise that, if he or she were not a Member of the Assembly, would cause him or her to be disqualified for election thereto….’. Section 68 (2) in particular states ‘If circumstances such as referred to in paragraph (c) of this Section, if any circumstances arise in relation to a Member of the Assembly by virtue of the fact that he or she is declared insolvent, adjudged to be of unsound mind, sentenced to death or imprisonment, or convicted of an election offence, he or she shall not be allowed to vacate his or her seat…’. Clear as daylight.
Article 83 of the Uganda Constitution on how an MP can be removed provides that ‘A Member of Parliament may lose his or her seat in any of the following instances (1) On resignation in writing to the Speaker; (2) If he or she subsequently ceases to qualify to be a Member of Parliament; (3) If he or she is absent from 15 sittings without permission of the Speaker; (4) If he or she is found guilty of violation of Leadership Code of Conduct; (5) If he or she joins another party or leaves the party and decides to remain an Independent member; (6) If a member was elected as an Independent and joins a party; or (7) on appointment as a public officer’. Clear as daylight as well.
Having regard to the Constitution of Botswana and the Floor Crossing Law on circumstances under which MPs can lose their seats, would the Speaker allow those seats whose MPs would have not complied with the UDC ultimatum to be declared vacant and by elections called as a consequence? As can be read from the provisions of the two instruments, circumstances under which an MP’s seat can be declared vacant are explicitly stated. In my view, the Constitution sought through this Section to offer some security of tenure for MPs such that they do not become collateral damage in the event there is a political fallout like it is and most importantly, not of their own making. If indeed the UDC intends to oust BCP aligned MPs from parliament as a way of settling political scores, such intentions do not appear to meet the bare minimums of the circumstances under which the Speaker is empowered to declare the seats vacant pursuant to the said two instruments. The same goes for the Councillors. The intentions can only succeed in my view if the instruments are wilfully ignored by the Speaker for MPs and Council Chairmen for the Councillors.
What is not in dispute is the fact that all UDC MPs and Councillors were elected in the 2019 general election on its ticket. Consequently, there are no BCP MPs in the National Assembly and Councillors in Council chambers. This owing to the fact that there was no BCP name and logo on the ballot paper back then. Was the BCP as of now still a UDC partner notwithstanding the prevailing shenanigans engaged because the targeted are firstly their members and secondly, it is the BCP that seconded them to the UDC for the 2019 general election? I am afraid the UDC on objective facts is behaving like an employer who is fed up with his employee but fires him nevertheless without the requisite procedural processes. Wouldn’t BCP be entitled to scream nothing for us without us?
A near example of what the UDC intends to do after the lapse of the 26 September deadline is the case of Hon Saleshando who was removed from the Leader of Opposition position. While the plot was orchestrated primarily by the UDC to return the favour in the merry-go-round of settling political scores between the UDC and BCP as opposed to whether or not Hon Saleshando performed as Leader of Opposition, he did not as a consequence lose his seat. This because this is a parliamentary position earned through a vote by the majority MPs. That is why, notwithstanding the toxic relationship between him and other UDC MPs who clinically ousted him did they, subsequently, oust him from his parliamentary seat because such would have not complied with the relevant provisions of both Section 68 of the Constitution as read with the Floor Crossing law. I am deliberately raising this point to reiterate my argument that while it looks on face value that the UDC will find it easy to oust BCP aligned MPs and Councillors as I strongly believe this is the essence of the ‘Expression of Interest’ communication, it may in fact not be as easy as it looks. It will possibly not be enough to say the NEC resolved to do so.
Concluding on the premise that I have made a case that Section 68 of the Constitution and the Floor Crossing law could scupper UDC’s 26 September 2022 ultimatum that all BCP aligned MPs and Councillors should indicate in writing whether or not they will contest for the 2024 general election under its ticket, the ‘Expression of Interest’ communication to the extent it is directed at these representatives is grossly borne out of bad faith and consequently in my view, stands far too short to meet the demands of the two instruments. Otherwise political parties would at the stroke of a pen achieve the removal of people’s representatives to settle political scores they may not necessarily be part of. The Speaker of the National Assembly and Council Chairmen will have to apply the law to protect the vulnerable. Let the people’s representatives be removed in line with the provisions of the Constitution and the law but not because of the whimsical wishes of politicians underpinned by political fallout of sorts. I am prepared to be persuaded otherwise as always. Judge for Yourself!