The Botswana Congress Party (BCP)’s last ditch effort to avoid litigation over the legitimacy of the Mokgweetsi Masisi presidency was met with a curt response by the Minister for Presidential Affairs and Public Administration Nonofo Molefhi.
Addressing parliament in response to three urgent questions raised by Selebi-Phikwe West MP Keorapetse Dithapelo last Thursday, Molefhi advised that there was no violation of the constitution as there was no vacancy in the transition at the Office of President from former President Ian Khama to President Masisi.
Molefhi informed parliament that “The end of tenure of office of the Former (sic) President on 31st March 2018 did not create a vacancy as to require the conduct of elections in terms of the sub-section.” The minister went on to add that the speaker was under no legal obligation to call for an election in terms of section 35 (4).
The BCP wrote to the Speaker of Parliament on 10th April demanding compliance with what they understand to be the constitutional requirements for the appointment of Masisi as president. According to the correspondence, the BCP holds the view that in order for Masisi to assume the full functions of the Office of President, the National Assembly needs to convene an election and vote him into the substantive position. In addition, the BCP contends that regardless of whether the president assumed office with full executive authority under section 35 (1) of the constitution, Masisi could only have invoked the “automatic succession” provision if a vacancy arose at the end of former President Khama’s tenure in office. The opposition party regards the constitutional provision that calls for an election of the president in parliament as mandatory and an integral component of the country’s democratic values. Neither the Speaker nor the Attorney General responded to the correspondence.
According to sources within the BCP, the party decided to address an urgent question in parliament in a last-ditch effort to avoid litigation and the possible consequences such litigation may have on the sitting of parliament. Lawyers acting for the party have revealed that due to the legal interpretation on the calculation of days, the 7 days stipulated in the constitution for holding the parliamentary election expired on 12th April 2018.
Legal experts differ on the consequence of the Attorney General’s advice to parliament.
Sources within the BCP have revealed that the party intends to proceed with the litigation as the section and the amendment that gave rise to “automatic succession” is open to debate, creating uncertainty for the country as a whole.
According to one party insider, the constitution ought to be interpreted in a manner that promotes democracy by the electorate and their representative- and should not be given an interpretation that undermines the voice of people’s representatives in the National Assembly. The source argues that parliament and the courts are the watch dogs against executive overreach and must guard against enabling an environment that can create authoritarianism.
Having exhausted all avenues to address their concerns the path is now open to approach the court, says the source. Automatic succession has caused public outcry since its introduction in 1997. Political Scientist and lecturer at the University of Botswana, Professor Good, was purportedly deported for speaking out and publishing an article condemning the practice as not being democratic. According to Professor Good, the practice made Botswana a flawed democracy. International human and civil rights organisations have endorsed this view of Botswana’s democracy.
The court will now, should the BCP proceed with the litigation, have to decide on a key constitutional governance issue.