Last week Deputy Speaker Kagiso Molatlhegi ignored the numerical majority of the Opposition in parliament, adding yet another nail in the coffin of Botswana’s Republic, The Botswana Gazette analyses the daylight trampling of the nation’s democratic republic principles.
Parliament convened for the final sectoral debate on Governance, Safety and Security under NDP 11 and after Minister of Defence, Justice and Security, Kgathi’s final response to the debate, he called for its adoption and implementation. Molatlhegi called for a vote on the motion. In terms of the Constitution and the Parliamentary Standing Orders, the vote is required to be determined by a simple majority of those present in Parliament, so long as they comprise a quorum.
Opposition was in majority, 15 against 10 members of the ruling party, giving a total representation of 25, and comprising a quorum. The House, according to members of both sides of the political divide voted along political lines with the Opposition bloc voting en masse against the adoption. Molatlhegi ignored the numerical superiority of the Opposition and adopted the motion. When faced with the outrage by the Opposition the Deputy Speaker informed the House that the “yes” of ten members of the BDP was louder than the “no” of fifteen members of the opposition, claiming that he was unaware of the opposition majority present.
The House is physically divided into two benches, to the right (of the Speaker) being the ruling party’s caucus and to the left the Opposition. The representation of each political faction being clearly discernible.
The duty of the Speaker, and Deputy Speaker as set out in the Constitution and the Standing Orders is to act impartially. The Speaker’s duty, first and foremost is to uphold the Constitution and the constitutional values. The Speaker’s duty is to have no preference for one party over the other.
Molatlhegi’s disregard for the majority vote of parliamentary members present at the vote, undermines the national ethos enshrined in the Constitution. The failure to uphold the majority vote of those present, is not of consequence because of whether NDP11 would have been adopted or not. The BDP members, in the face of a majority “no” vote would have called for a “division” and those members loitering outside the august chamber would have been called in to cast a vote. The motion would then have passed on simple majority of the ruling party. Ignoring the Opposition majority vote and ignoring Parliamentary processes is significant because it is reflective of the sign of the times. It illustrates that the ruling party acts, with impunity, against principles that the nation adheres to; rule of law and human rights.
Botswana is a Sovereign Republic as defined by Section 1 of the Constitution, raising important but fundamental distinctions to that of a Democracy. While both political ideologies are used interchangeably there are notable differences and overlaps.
A Democracy, in its simple form envisages the rule by an all-powerful majority; an individual, or a group of individuals comprising of the minority have no protection against the unlimited power of the majority. It is a case of majority over all. Under a democracy proper, the government constraints are unlimited; the majority can impose its will on the minority.
A democratic Republic such as ours, is however a representative democracy with a written Constitution of basic rights that protect the minority from being completely unrepresented or overridden by the majority. A democratic Republic is characterised by governing according to the rule of law under which the government of majority is unable to take away inalienable rights. The elected are bound by an oath to the Constitution, voting “together” to create laws to address concerns of the electorate in a democratic manner in parliament; that is by a majority vote.
The Deputy Speaker, in ignoring the Opposition majority vote ignored the basic precept of Section 1 of the Constitution; that Botswana is a republic governed by the rule of law; the rule of law which promotes and does not detract from greater government accountability on issues of Human Rights and the progressive development of transparency in all arms of Government. In ignoring the majority position last week, the Deputy Speaker is merely conforming to current positions adopted by Government under the current ruling party.
The Attorney General acting on behalf of the ruling party led government, has been criticised by the Courts for arguing that members of the LGBT community do not constitute “persons” as defined in the Constitution; that a death row inmate does not enjoy Constitutional rights as protected under the provisions relating to basic rights of an individual; that foreign inmates ought to be treated as lessor people and not availed Anti-retroviral treatment. Such positions go against the tenets of a democratic Republic that ensure the protection of a minority.
Since 1998, the nails in the Republic’s coffins have regularly been pounded into place with the consolidation of authority in the Executive, whether in the form of oversight in the Electoral Commission; the appointment to the Judiciary and undermining its independence and oversight; the curtailing of the media with unlawful arrests and sanction; the control of the Director of Public Prosecutor; the oversight and control of the Directorate of Intelligence and Security Services (DISS), the Directorate on Corruption and Economic Crime and furthermore the Office of the Ombudsman. All positions that are antithesis of a democratic republic.
According to former President Festus Mogae, the current regime has shown a marked disregard for the rule of law and fundamental freedoms; moving away from the constitutional ideals that marked the nation as a “beacon of democracy”. The current populist politics of the day around charismatic leaders seeking to appeal to and claiming to embody the will of the people in order to further their agendas, no matter how well intentioned have contributed to undermining the national ideals.
Specially Elected Member of Parliament Honourable Bogolo Joy Kenewendo gave voice to pertinent issues under NDP11, stating “Lastly, we are known as the beacon of democracy and this NDP11 chapter should embody our spirit of peace, good governance and guarantee continued free & fair elections”. Kenewendo called for, among other issues, the raising of the “age of consent” because “The age of consent in the Penal code is 16. It needs to be aligned with the definition of a child under both the Interpretation Act and the Children’s Act which is 18.” The position is wrong in law. Under the Interpretations Act, the age of majority is 18. Under the Children’s Act a child is defined as a person who has not attained the age of 18. The definition of a Child and the age of Majority bare no relation to the age in which a person may give sexual consent.
The view, well intentioned as it may be is a populist view without regard to the legal ramifications that it will create; the criminalisation the sexual conduct of consenting minors under the age of 18.
Kenewendo is sadly a reflection of her peers. Minister Kgathi in discussing issues pertaining to Bail of persons suspected of a crime, relies on the “public outcry” in this respect. His presentation gives no indication of any survey done or where the “public outcry” has been voiced basing his decision on unsubstantiated populist views that bail conditions must be restricted thereby undermining the rule of law and the cornerstone of our republican democracy. Kgathi, in condemning Boko’s response on the issues of bail says the position is “… legal jargon only (sic) which is the provision of the law; as opposed to hearing the views of ordinary citizens, whether that view is misplaced or not,” ignores the Courts position when it declared that the denial of bail for those charged with rape was unconstitutional, and that Unity Dow when she was a Judge, now a member of parliament in his caucus, ruled that the provisions of bail in respect of motor vehicle theft were unlawful. The position of Kgathi is symptomatic of the populist position to the disregard of the rule of law, as he clearly sets out by concluding that the views of ordinary citizens must intercede over the judiciary.
Kgathi and Kenewendo’s position is uninformed by the rule of law. It is based on public opinion or Public Policy, the former of which has no place in courts of law according to numerous local and international judgements. “Public Opinion” or “public policy” as opposed to “Public Interest”, has the potential to undermine our Republic’s constitutional imperatives of human rights. Our court has repeatedly reaffirmed the position that public opinion is a “very unruly horse, and once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.”
The Judiciary ought not to be influenced by either government or public opinion. Kgathi strikes the additional nail in the Republic’s coffin when he seeks to do both stating “Madam Speaker, it was in this context that I was simply going to convey customer feedback to the Chief Justice, and not in any way to express any view about how the Judiciary should perform its functions.”
The Deputy Speaker in ignoring the majority opposition vote acted on the entitlement of 50 years of one party rule and the political hierarchy that it has created, devoid of policy and adherence to the rule of law.
Our perfect “beacon of democracy” illustrates that it neither needs nor wants voting rights. Behind the façade of representative democracy lies the reality of an oligarchy run by plutocrats.
Clear daylight trampling of the nation’s democratic republic principles in the process.