Ideally, this title should be ‘the Independent Electoral Commission (IEC) upholds its independence’. The reason we use the word ‘integrity’ and not ‘independence’ is that, as shall be argued below,Botswana’s IEC is largely not independent both legislatively and operationally.
Yet, it ought to be stated that the recent case where the IEC refused to accept the ruling Botswana Democratic Party (BDP)’s nominee, Ignatius Moswaane, for the Francistown West bye elections because of a court order barring such upholds the IEC’s integrity and shows its respect for the rule of law. Clearly, if it lacked integrity and respect for the rule of law it would have defied the court order and accepted Moswaane’s nomination to appease the government and/or to avoid government’s wrath.
Without undermining the importance of integrity as a universal ethical principle, I wish to argue that the overriding constitutional imperative for such bodies as the IEC ought to be constitutionally entrenched independence, not just integrity.Unlike independence, integrity, as a value, resides mainly with individual natural persons and may not be a constant considering that members of the IEC change. For such juristic bodies as the IEC, therefore, relying on integrity alone is not advisable because different Commissions may have differing levels of commitment to integrity.
That the current legislation casts doubt on the independence of the IEC is incontrovertible. The fact that in terms of section 65 A(1) of the Constitution of Botswana members of the IEC, namely,(a) the Chairperson, (b) a legal practitioner and (c) five other persons who are fit, proper and impartialare appointed by the Judicial Service Commission (JSC) whose members (i.e. the Chief Justice, President of the Court of Appeal, the Attorney General, the Chairman of the Public Service Commission and a person of integrity and experience not being a legal practitioner appointed by the President), save for one member of the Law Society nominated by the Law Society, are presidential appointees, and/or members of the executive undermines the IEC’s independence.
This, is however, moderated by the fact that the five other persons are appointed by the JSC from a list of persons recommended by the All Party Conference (APC). It is, however, disconcerting that in terms of section 65 A(2) of the Constitution of Botswana where the APC fails to agree on all or any number of the persons up to dissolution of Parliament, the JSC shall alone appoint such person or persons as are necessary to fill any vacancy. The JSC members who have allegiance to the executive may deliberately cause and/or perpetuate such disagreement so that the JSC singularly appoints the five other persons.
Doubts on the IEC’s independence are also caused by the fact that in terms of Section 66(2) of the Constitution of Botswana, the Secretary to the IEC is appointed by the President acting alone. Also, operationally, the IEC depends on government for its budget; personnel and all other resources.
The IEC’s independence can be achieved by entrenching in law that it is independent and subject only to the Constitution and the law. Further, law should also provide that the Commission shall be impartial and shall exercise its powers andperform its functions without fear, favour or prejudice. In South Africa, for example, such provisions exist at section3 (1) and (2) of the Electoral Commission Act 51 of 1996.
The IEC’s independence can also be enhanced by providing that for one to be elected its member he or she (a) should not, at that stage, have a high party-political profile; (b) should have been recommended by the National Assembly(NA) by a resolution adopted by a majority of its members; and (c) should have been nominated by a committee of the NA, proportionally composed of members of all parties represented in that Assembly, from a list of recommended candidates submitted to the committee by a designated panel. In South Africa, for example, such a provision exists at section6 (2) of the Electoral Commission Act 51 of 1996.
The panel which recommends candidates for the IEC should not resemble our JSC in its executive domination. Rather, it should be plural and diverse and consist of such entities as the judiciary, civil society, the labour movement, the private sector, etc. In South Africa, for example, section6 (3) of the Electoral Commission Act 51 of 1996 provides that such a panel shall comprise of (a) the President of the Constitutional Court, as chairperson;(b) a representative of the Human Rights Commission;(c) a representative of the Commission on Gender Equality; and (d) the Public Protector.
The IEC’s independence can also be enhanced by providing that the Commission appoints its Secretary; the Secretary in consultation with the Commission appoints the Commission staff and the Commission prescribes the conditions of service, remuneration, allowances, subsidies and other benefits of the Secretary and Commission staff as is the case in South Africa in terms of section12 (1), (4) and (5) of the Electoral Commission Act 51 of 1996.
Further, the IEC’s independence can be promoted by providing in law that the Commission’s duties and functions shall be defrayed out of money appropriated by Parliament for that purpose or received by the Commission from any other source.
It ought to be stated, however, that elements of independence exist with the IEC. Such include the role of the APC in the appointment of the five other persons; the security of tenure for the Chairperson and members of the Commission which, in terms of section 65A (5) of the Constitution of Botswana, is a period of two successive lives of Parliament; and the provision that in terms of section 66 (8) of the Constitution of Botswana the Secretary may be removed from office only for inability to perform the functions of his office or for misbehavior and that such removal shall only be done by the President following a recommendation by the tribunal appointed in terms of section 66(9) of the Constitution of Botswana. The latter, however, may be manipulated for personal and political expediency since such a tribunal is unlikely to make a recommendation against removal.