Botswana is accelerating towards a constitutional crisis, with a complete shutdown of Parliament, if the interpretation of the Constitution, by some legal minds about the ascendance of President Mokgweetsi Masisi is anything to go by. According to the legal train of thought President Mokgweetsi Masisi’s presidency is not substantive, and if it is not made substantive by Saturday, the country will head for an early election as parliament automatically dissolves. In a week which witnessed the Umbrella for Democratic Change (UDC) boycotting the nomination of new Vice President (VP) Slumber Tsogwane, as they did with the Inauguration of the new President, a debate has emerged over the legality of the presidential inauguration and the subsequent processes that flowed from his appointment.
Legal minds were left scratching their heads this week when it emerged President Mokgweetsi Masisi’s had not been elected to the highest office in the country by a majority of votes in the National Assembly. The failure to hold the election may have rendered his inauguration as the substantive President of Botswana as irregular, and that his presidency may only be valid until midnight Friday. Furthermore it is argued that unless Masisi is inaugurated within 7 days of President Khama ceasing to be president, Parliament would have to automatically dissolve and national elections would have to be held.
This week prominent lawyer Tshiamo Rantao threw the cat among the pigeons when he expressed the opinion that the constitution does not provide that the automatic succession of the Vice President to the presidency is permanent, but rather that the Constitution provides that the Vice President is installed as President only until Parliament can formally vote on the new President. Masisi ascended to the office on the night of 31st March automatically when President Ian Khama’s term ended, but under that arrangement lawyers argue, he can only be a temporary President with limited authority This temporary arrangement is valid for a maximum period of 7 days under the constitution.
Following the revelations that Masisi had taken on the substantive appointment of President without a vote in parliament. Rantao wrote on his personal Facebook page that the Constitution had not granted Masisi a substantive presidential position, when he automatically assumed the vacant office left by outgoing President Ian Khama at the end of his term on 31st March 2018.
“I have a niggling doubt that his ascendancy was constitutional, regard being had to section 35 of the Constitution which seems to me not to create room for automatic succession. Section 35(1), read together with sections 35(3) and 35(4), seems to me to envisage a situation where the Vice President only assumes office temporarily pending the election of President by the National Assembly by a secret ballot under section 35(4) and in line with the procedure under section 35(5)” he argued and sparking a spirited debate.
According to Section 35 (1) “Whenever the President dies, resigns or ceases to hold office, the Vice-President shall assume office as President with effect from the date of the death, resignation or ceasing to be President”. Read in isolation, lawyers argue, it would indicate that Vice President automatically becomes President upon the departure of a President. This is the position that Attorney General Abraham Keetshabe takes in the current edition of The Guardian when quizzed by weekly’s Dikarabo Ramadubu on the matter. Keetshabe, Ramadubu says, argues that when the outgoing President steps down, there is no gap in terms of the incoming president because the process is instant and simultaneous, the Oath of Office, according to the Attorney General is merely a formality for what has already taken place by operation of law, “What this means is, the office of the presidency, is conferred by operation of the law in the constitution of the republic” writes Ramadubu.
Another well respected Attorney, Ngakaagae thinks Keetshabe is not addressing the real concerns that have been raised. “No one is talking about the oath. We are all talking about the constitution. The AG is not dealing with the enquiry. The fact that he is choosing to strike off at a tangent suggests he has no answer. His is a separate discourse”. Ngakaagae agrees with Rantao, that the President, in order to assume all the executive powers under the Constitution needs to be elected by Parliamant and notes that the Attorney General fails to address the subsequent provisions of the Constitution that mandate the vote within 7 days. Critiquing the Attorney General, Ngakaagae points out that one can only assume an office if its vacant and that Masisi could not have assumed office while Khama was still sitting as president.
Other lawyers have argued that a substantive position of Presidency is not envisaged by the constitution, other than after general election, except where the President is voted in by Parliament. The legal minds ask that Section 35 (1) be read with the rest of the subsections of that part of the constitution. Youthful lawyer Kago Mokotedi pursues this argument when commenting on Rantao’s assertion.
In particular Section 35 (4) states, “If the office of President becomes vacant, the National Assembly shall, unless Parliament is dissolved, and notwithstanding that it may be prorogued, meet on the seventh day after the office of President becomes vacant, or on such earlier day as may be appointed by the Speaker, and shall elect a person to the office in such manner as is prescribed by the next following subsection and, subject thereto, by or under an Act of Parliament”. Those that support Rantao’s contention argue that no substantive President can be appointed except through the parliamentary process, which is explained in detail under Section 35 (5). They argue further that Masisi’s Presidency, without him having been elected under Section 35 (4), is only valid from 1st April until 7th April, marking seven days since Khama’s left and the office became vacant. Following this argument what ought to have happened was that on 1st April, over and above taking his Oath of Office as President, Masisi was supposed to have been properly nominated, voted in Parliament, and formally ascended.
Youthful lawyer Kago Mokotedi concurs with Rantao’s interpretation. “I agree with Tshiamo Rantao’s interpretation. It would appear that Masisi and his legal team only read and relied on section 35 (1) and no further! Provisions of the Constitution must be read in wholesale, and not in isolation to one another! If the Constitution of Botswana did not have Section 35 (3), (4) and (5), the ‘inauguration’ of His Exellency Masisi would be valid and constitutional. What must obtain when a seating president vacates or ceases to hold office, as it is the case with Khama, in terms of BW’s constitution, is clear and free from any ambiguity from the plain reading of the Constitution, and there is no need to seek an alternative interpretation. Masisi’s ‘inauguration’ must be temporary and he can only exercise powers of the President after being duly and constitutionally elected by Parliament” he asserts.
Veteran lawyers such as former Chairperson of the Law Society of Botswana Lawrence Lecha, Joao Salbany and Kgosi Ngakaagae have weighed in, arguing that Masisi’s appointment has not been made substantive and that the country may not have a substantive President by midnight today (Friday).
If this argument is correct then, lawyers argue, there is no such thing as automatic-succession in the formal definition of the phrase, given that the ascendance of the President through this dispensation is only a stop-gap. “In other words, my reading of our Constitution is such that automatic succession is not provided for contrary to popular belief. Politically, I think Honorable Masisi would still be elected by the National Assembly due to the obvious ruling party majority, but I doubt that his assumption of office currently is constitutional. I may be wrong, but if I am right, then those in authority should correct the problem in the interest of the rule of law. Should this be challenged in court, one imagines that there would be good prospects of success, and that could embarrass the nation,” expressed Rantao.
If this interpretation is correct, then the process of appointing the President has to be done according to the Constitution. The Botswana Democratic Party has to nominate him for the position, whereupon Parliament would have to meet and vote on the candidate, other political parties would be able to do the same should they chose to do so. If the process is not followed a worse prospect may await the country. According to legal minds, if a substantive President is not in place by midnight Friday, automatically Parliament is said to have been dissolved, a process which would then kick start the calling of a fresh election.
Salbany argues that the delay in appointing President presents grave prospects. “VP assumes office with limited capacity under 35 (1) but there has to be an election for the President under 35 (5) for him to enjoy the full authority of that Office. This needs to be done within 7 days (or earlier). The candidate needs to secure at least half plus one votes of the TOTAL number of Members of Parliament (less the Speaker and Attorney General). In the event that no election is held for the Presidency within the stipulated number of days then Parliament would stand dissolved and national elections would need to be held. It is a given that with the absolute majority that he enjoys Rre Masisi would secure the presidency, but the Constitution still needs to be adhered to,” he argues.
Salbany adds that given the various interpretations that have been given to section 35 of the Constitution, it may ultimately fall to the Court to interpret how the President assumes office under the section. In 2014, acting on the instructions of the UDC, Bayford and Salbany intervened when the BDP sought to change the Standing Orders to ensure an open ballot for the election of the Vice- President. The Attorney General subsequently took up the case on behalf of the BDP resulting in parliament being suspended. Salbany argues that under the provisions of Section 35, parliament is not empowered to conduct any other business until the election of the President has been conducted, “it will be interesting to see if the Attorney General will intervene in this instance.”
If Masisi’s presidency is challenged the country could face the prospects of an early election.
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SUCCESSION IN CONSTITIONAL CRISIS?
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