The legal, constitutional implications

In this thought piece I suggest that occasionally our constitution does whisper in its silence, and

one must listen carefully. Sometimes it gives the impression that it speaks in tongues too. I

suspect it is because our constitution may not be well understood even amongst the learned

that a few friends in the legal fraternity and some former members of the executive have asked

me to share my opinion publicly on the above subject matter and answer some practical and

specific questions that may arise in the event none of competing political parties manages to

win an outright majority of 31 seats and form a government on its own, in the coming elections.

A situation when no political party wins a majority in Parliament is called a hung Parliament.

This opinion rests mainly on the textual provisions of both the Presidential Elections Act and the

constitution - and concedes they may be scope, as may be permissible, to utilize the

constitutional conventions or practices arising out of our colonial history or heritage – although

this is heavily contested.

Our republican constitution must be understood in the context of its history and specific

circumstances prevailing at any given time. Part of our constitutional DNA as a republic arises

out of our history and our inheritance of some Westminster traditions. In terms of the scheme

of our constitution, the election of the President is foundational to formation of government.

Once that is achieved, it is easy for the various pieces of the puzzle to fall in place – bearing in

mind that the political chase game may dictate the numbers game. The practical question or

challenge, in circumstances where none of the presidential candidates manages to secure 31

seats is the difficulty of electing a President without a majority. This would mean that the party

with the largest number of seats or significant numbers must negotiate or forge alliance to raise

the required majority before a presidential candidate can be presented for election.

Mindful that the election of the President may be a function of political chess game, below I

attempt to address some practical questions that may arise in the event none of the of the

competing parties manages to win 31 seats.

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What happens if no party achieves an absolute majority of 31 seats to form a government?

The answer is that if the Chief Justice, as the Returning Officer, pursuant to section 32 (3) (d) of

the constitution declares that no presidential candidate has reached the required 31 seats, and

therefore no candidate has been elected, the new National Assembly shall meet within 14 days

after the results of the elections has been ascertained to elect a President.

Who qualifies to be a presidential candidate where the election of the President moves to the

National Assembly (floor of Parliament)?

The Constitution of Botswana (Section 32 and 33(1)) outlines the process and or requirements

of the election of the President. Section 33(1) of the constitution provides that a person shall be

qualified for election as a President if he or she is a citizen of Botswana by birth or descent; has

attained the age of 30 years; and is qualified to be elected as a Member of the National

Assembly. In my mind, it seems plain, from the above, that any Motswana who meets these

criteria may be nominated and be a candidate for election, if none of the presidential

candidates reaches the required constitutional threshold to be declared the winner. Partisan

dynamics may make it difficult for this Motswana candidate to raise the required ten Elected

Members to nominate him or her to be a candidate, but it is not impossible. It is also possible

that if the partisanship creates a stalemate such that none of the party leaders can be

nominated as a presidential candidate, as a way of a compromise and possibly to avoid fresh

elections, MP’s may decide that it is prudent to opt for a third (independent) candidate.

The above notwithstanding, it seems clear to me that in terms of the constitution, persons who

qualify to be nominated presidential candidates, in the second round (where the National

Assembly must elect a President), need not have contested for the Presidency in the elections –

and need not be a member of any party or an elected member of the National Assembly.

The election of the President by the National Assembly as contemplated by section 32 (6) (b) of

the constitution shall be conducted in such manner as prescribed by section 35 (5) of the

constitution.

Section 35 (5) essentially provides that in an election of the President the following is required:

 The Speaker shall preside at the meeting and conduct the election.

 A person may be a candidate if, prior to the sitting of the National Assembly, he is

nominated by not less than 10 members of the National Assembly.

 At the election of the President every member of the Assembly, except the Speaker shall

be entitled to vote.

 The votes of members entitled to vote shall be by secret ballot.

 A presidential candidate who receives at least 31 votes shall be declared elected as

President.

 Several ballots, up to a maximum of five (5) may be taken, provided only one ballot may

be taken at any sitting of the Assembly.

 If after the first ballot and or subsequent ballots no President is elected, Parliament shall

stand dissolved and in the case of a presidential election held pursuant to section 32 (6),

the said election shall be void.

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It may be useful to view the consequences of elections in two stages: the first stage being an

election of a President and second stage being formation of government – choosing a cabinet.

These two events are inextricably linked but distinct events, constitutionally speaking. Once the

President is elected, he or she is free to form a government, by appointing members of the

cabinet. This government can be a coalition government formed by MPs from different parties.

Does our Constitution envisage formation of a Minority Government?

For the purposes of this thought piece, by minority government, I mean a government that

does not command a majority. This is usually (but not necessarily) led by a party that secured

the highest number of seats. Our constitution does not provide explicit guidance for the

formation of a minority government. It seems to me that the key to formation of a government

is to first elect a President. Once the President is elected, he can appoint a cabinet made up of

members from different parties.

How would a Minority Government be constituted?

If no party can reach the 31-seat majority, a minority government could theoretically be

constituted by the largest party, provided it can gather enough support to elect the President

and pass essential legislation. The constitution and the Presidential Elections Act do not rule out

this possibility.

The Silence of the Constitution

I earlier indicated that our constitution does not specifically give guidance on the possibility of a

minority government, nor does it seek to regulate formation of coalition government. This

raises an interesting question: does our constitution speak in its silence; can it speak in

tongues?

It is possible for our constitution to speak in its silence if we accept that constitutional

conventions and practices can be used to interpret a constitution. Constitutional students and

scholars of Constitutional History have debated the question whether constitutional

conventions apply to written constitutions such as ours or not. Some scholars argue that

constitutional conventions are not law and may not be used. The problem in our country seems

to arise because, unlike modern constitutions, it is not exhaustive, and it is silent or ambiguous

on some of the pertinent questions that may arise owing to no party winning an outright

majority. The situation is not good as it may lead to a situation where judges may be tempted

to fill in gaps and then risk being accused of legislating. Our courts – the justices of the superior

courts, must always be weary of being the overlords of the constitution.

Some scholars argue that the use of constitutional conventions or practices in the context of a

written constitution is deeply problematic. Those who consider the application of constitutional

conventions and practices raise two arguments:

First, when does something acquire the status of constitutional convention of sufficient

certainty to be recognized and applied, which might warrant reliance on them to assist with the

interpretation of the constitution. And a related question is: who decides on this? It is further

argued by some constitutional scholars that the fact that those in power have always done

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something in a certain way (but in very different circumstances) does not necessarily create a

credible constitutional convention.

Second, there is a difference between relying on constitutional conventions to interpret specific

provisions of the constitution, on the one hand, and (in effect) inserting conventions into the

text of the constitution to “fill in gaps”. So, the difference between interpreting the text and

inserting new provisions may be deeply problematic with far reaching consequences for the

rule of law. This scenario increases the risk of partisan contestation about the use of

conventions which could have an impact on the legitimacy of the government.

It seems to me that the arguments in favour of the use of conventions might be less

problematic in a homogeneous and relatively harmonious society or a society with low levels of

political partisanship and distrust. In Botswana they may well be a development in the direction

of political partisanship and distrust. To this extent, establishing the principle that the

constitution does not only mean what it says, but what it might have wanted to say – based on

conventions – might not be a recipe for harmony.

Given the above arguments, whilst a court of law, owing to our history, may find scope to rely

on constitutional conventions, developed centuries ago in the United Kingdom, this is

something that may also not be easily embraced, for the reasons advanced earlier. Further,

those who are skeptical about relying on constitutional conventions to interpret a written

constitution argue that such an approach looks like importing rules made by the powerful to

benefit the powerful.

Some of the questions I attempted to answer here were apparently raised at the constitutional

and independence conference, and the participants thought the answer lies in relying on

constitutional conventions and practices, rather than overregulate.

In summary it is my opinion that:

• Eligibility for presidency: Non-elected citizens can stand for the presidency if

they meet constitutional requirements.

• Minority government: A minority government may be feasible if, the National

Assembly is first able to elect a President.

• Constitutional conventions: The jury is still out on the use of constitutional

conventions, given the contested nature of using same in the context of a

written constitution. The United Kingdom where these conventions originated

has an unwritten constitution and the use of constitutional conventions may be

appropriate.

• The position might arguably be different if they were well established and

uncontroversial constitutional conventions that can ensure the smooth

implementation of the provisions of the constitution.

Conclusion

It seems plain to me that our current constitution is flexible enough to answer some of the

constitutional questions that a hung parliament may pose, without breaking. In its nature a

constitution is supposed to be elastic to accommodate some unforeseen challenges. However,

in the long run our constitution must be modernized to explicitly answer several known

challenges in a democracy following an election. In future our constitution must provide for

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coalition and or minority governments. Modern constitutions, such as those of South Africa are

very exhaustive in their provisions on varied matters including various permutations of transfer

of power, with the result that there is hardly any need to use constitutional conventions or

practices.

*Judge Dingake is a Justice of the National and Supreme Courts of Papua New Guinea and the

Residual Special Court of Sierra Leone to add: He is also a Professor of Public Law at the

Universities of Cape Town in South Africa and San Beda University in Philippines, facilitating

postgraduate modules in:(a) Judging in a Constitutional Democracy and (b) Constitutions,

Constitutionalism and the Rule of Law respectively.