Without moral and ethical integrity, a reviewed Constitution will achieve nothing

ADAM PHETLHE ON SUNDAY

Batswana are very excited, and rightly so, that the country’s Constitution is on the verge of being reviewed. From the general excitement, such review seems to be the silver bullet for the country’s political and socio-economic quagmire. Not by any stretch of the imagination. I would even dare to say that Botswana’s political and socio-economic quagmire is not, in large measure, caused by the current Constitution. I am not averse to the Constitution being reviewed because such in my view, will enhance our constitutional democracy depending on the changes brought by the review. The country’s quagmire is largely caused by the serious and pitiful lack of moral, ethical and integrity virtues across the board particularly at political leadership level. As a consequence, lack of these virtues breeds in some cases deliberate poor errors of judgement on national issues; the circumvention of the Rule of Law, accountability and transparency; arbitrary decisions in favour of the political leadership but costly to the citizenry, abuse of office for political expediency and lastly, corruption.

My definition of moral, ethical and integrity in the context of this article is for the political leadership to put Botswana first before their own parties; exercise good judgement in the interests of Botswana and Batswana without relying more on legality as a convenience and as a shield to abdicating Constitutional duty and obligations as required by the oath of office. But as it has become apparent here and elsewhere, political leadership has become a gateway to serving narrow political interests at a great cost over national interests.   

South Africa’s Constitution adopted in 1996 is regarded arguably so, as a progressive one imbedded with all possible progressive provisions to respond to society’s political and socio-economic challenges. Unlike ours, it has what they refer to as Chapter 9 institutions like the Public Protector and the Human Rights Commission amongst others. These institutions are not under the direct supervision of political leadership at the Union Buildings in that their leadership is not directly appointed by such leadership. Such appointments are made after a due process by the legislature. Yet, South Africa is seriously haemorrhaged particularly in the service delivery space just like Botswana by all manner of leadership failures caused by the lack of moral, ethical and integrity virtues. The revelations at the Commission of Inquiry into State Capture bear naked testimony to the serious lack of bureaucratic  and political leadership if such revelations are ultimately tested and proved correct. If a similar Commission were to be established here, similar revelations would obtain. Donald Trump at the time of writing this article, was on trial in the US Senate after being impeached by the House of Representatives for having violated the oath of office whereupon he commanded and incited his supporters to invade the seat of US government, The Capitol. His oath of office demanded that he was the first person to defend The Capitol. Only someone with no moral, ethical and integrity would behave like Trump. The point I am driving is that whatever good and progressive Constitution one has, it counts for nothing in the bigger scheme of things if the political and other leadership is not grounded in these compelling, necessary virtues.

Because the political leadership has overtime gotten away with murder owing to the fact that there have been no consequent management, this conduct and attitude have become so ingrained and entrenched that nothing apart from the paradigm shift will bring change. The sad reality is that the Reviewed Constitution will still have to be implemented by the same political leadership whose DNA is pitifully allergic to moral, ethical and integrity virtues which have caused it to dismally fail to implement the current Constitution whatever its shortcomings are. That is why countries like South Africa and Botswana find themselves where they are in terms of principally, the socio-economic challenges.

Political leadership thrives on exercising unfettered political power some of which is, in some instances, self-created largely for political expediency than anything else. This political power is vested in the members of the Legislature and the Executive of majority parties because these two structures define and chart the way forward. I will ignore the minority membership of the Legislature because at the end of the day, it counts for nothing in terms of holding the Executive accountable because of inferior numbers.  In the majority members of the Legislature is a structure called the backbench. In the words of the South African Constitutional Court judgement of 2017, it held “Those who represent the people in Parliament have thus been given the Constitutional responsibility of…..not only [passing] legislation but also bears the added and crucial responsibility of scrutinising and overseeing executive action.” The highlighting is for emphasis.

Would the terms of Constitutional Review seek to remove the immense power vested on the President of the Republic? (I am not referring to the incumbent but the office) I am thinking for example in the context of Section 41(1) of the Constitution with respect to presidential immunity. Would these terms seek release oversight institutions like DCEC, Ombudsman and others from the Office of the President in order to enhance our democracy for objective accountability, The Rule of Law and transparency? Would the IEC be permitted to stand truly independent for obvious reasons?  Given the fact that these issues have been raised before both in the Legislature and the broader society without success, it should go without saying that it is highly unlikely that the very same political party leadership will seek to change the status quo.   

The backbench has over the years failed to exercise the responsibility of ‘scrutinising and overseeing executive action.’ This failure is largely caused by the fact that the backbench is intrinsically tied to the Executive by virtue of political party affiliation to the extent that it fails to hold their colleagues in the Executive seriously, honestly and meaningfully accountable. Consequently, the Executive is given a free ride to some extent violating the very Constitution they have sworn to protect and defend. For example, the oversight function committee on the Directorate of Intelligence and Security Services has not been constituted until recently let alone functioning for about a decade or so notwithstanding the provisions of the Act. The backbench should have taken the Executive to task for not constituting this committee as required by the DIIS ACT. In equal measure, the backbench should have asked the Executive to account for the P 100 billion matter firstly as its oversight obligation to do so and secondly, given the immense public interest on it. The point I am making here is that the backbench has failed, and continues to do so in failing to perform oversight function over the Executive. With respect to the expected Reviewed Constitution, I argue the same is more likely to obtain.

There are reasons why the backbench is so terrified to hold the Executive accountable much the same as some hard core Republicans are terrified to call Trump to order. I will mention just a few of them. Firstly, these are ruling party members who politically, are expected to toe the party line without their applying their inner consciences. Any deviation from the party position comes with dire consequences. Ask Hon Moswaane and Hon Reatile. Secondly, the backbench is well aware that should it meaningfully hold the Executive to account, this will spoil their chances of being elevated to the Executive or any other high end political office. This will also be viewed by the party leadership as embarrassing their cabinet colleagues. Cabinet members have overtime proved not satisfactorily competent or confident in answering hard and difficult questions. Thirdly, there could be no clear cut processes to differentiate between a simple misbehaving member as opposed to a backbench member demanding honest and objective accountability. While some of these could be genuine concerns for the backbench, they use them as a shield to failing to hold the Executive to account.

In conclusion, it is my considered view that with the high levels of decay in moral, ethical and integrity virtues seriously entrenched in the political leadership and with no discernible sign that these will become part of the political leadership DNA anytime soon, very little if any will accrue from the Reviewed Constitution in terms of the political leadership strictly complying than it is the case. Political leadership is more comfortable when surrounded by immense political power and authority more importantly for political expediency than for good governance, accountability, transparency and the Rule of Law. Nothing suggests remotely or otherwise that it is prepared to shed some power and authority. Bear in mind that the Executive is the main actor where it will determine how the review process unfolds in many respects.  Just in parliament on Thursday when the Vice President was answering questions on the latest acquisitions of the President’s armoured motor vehicles by the Leader of Opposition, most if not all the questions came from the opposition. The backbench was less interested in scrutinising and overseeing executive action as it is its usual modus operandi. It emerged from these questions that parliament’s permission was not sought for this acquisition. I am accepting this view provided it is correct and not just a political jab from the opposition. This as always, was not questioned by the backbench for fear of reprisals as stated somewhere in this article. I am however for the review of the Constitution. Only time will tell as they always say. I am prepared to be persuaded otherwise as always. Judge for Yourself! 

As always, you are still kindly reminded to observe and comply with Covid-19 health protocols.

adamphetlhe08@gmail.com