I have been asked to speak on Botswana’s quest for a transformative constitution in the backdrop of a presidency driven constitutional reform process that has now yielded the Constitutional Amendment Bill of 2024, still under discussion, and in all probability, likely to pass as per the wishes of the executive, on the main. Towards the end of my discussion of this broad topic I will discuss the issue of the amendment power, and pose the question, possibly novel amongst lawyers – particularly students of constitutional law, whether Parliament is at liberty to amend the constitution, as it wishes.
It is convenient to start this conversation from the 1st of December 2021. In December 2021 his Excellency the President of Botswana, acting in terms of the empowering provisions of the Commission of Inquiries Act established a Constitutional Review Commission led by my brother, former Chief Justice Dibotelo. The Commission was given 9 months to undertake its work and submit a report to the President which it did.
The model of revising the constitution was to invoke the Commission of Inquiries Act, which was not the best approach having regard to international best practice. This is so because under the said Act the Commission is appointed by the President alone. The Commissioners are appointed by the President alone. The Terms of Reference for the Commission are also the sole prerogative of the President.
The Commission was accountable to the President alone. This approach was adopted by Zambia, in the past, and it caused a lot of unhappiness and frustrations amongst civil society formations, as it did in Botswana.
The approach that Botswana choose is at variance with international best practice as it excludes other key stakeholders, such as civil society and all political parties that must be meaningfully involved from beginning to end. Botswana had many options on how to review a constitution ranking from the best to the worst models and it chose to lower the bar and adopt an exclusionary model. In choosing this model the government betrayed the aspirations of the people who wished to see the most progressive homegrown constitution to govern their lives. And whilst this is plainly a dream deferred, it is also, by all accounts, a dream deferred. I am however certain of one thing: the current generation, led by Motheo o Mosha and other allied progressive formations shall one day correct this historic injustice on our people. This much is certain to happen, one day.
It is generally acknowledged that only an inclusive process can yield a legitimate constitution that the people can proudly own.
It is important to appreciate that constitutions are primarily about political authority and power within a state; where it is located, and how it is conferred, distributed, exercised, and limited among the separate organs of the state and in relation to its subjects. Constitutions deal with both the substance and procedures regarding these matters.
The principle that a constitution must reflect the will of the people derives legitimacy from the fact that sovereign power rests with the people. And the people delegate this power as they wish. The Universal Declaration of Human Rights proclaims in ringing terms that the will of the people shall be the basis of the authority of government; this will shall be expressed by periodic and genuine elections.
The above principle was given further effect by Article 24 (a) of the 1966 UN International Covenant on Civil and Political Rights which entered into force in 1976, which provides that every citizen, shall have the opportunity ... to take part in the conduct of public affairs either directly or through freely chosen representatives. This principle forms the basic relationship between citizens and state. When it is set out in a national constitution, it results in a contract between a government and its people.
The status of most written constitutions is that they are ‘the highest law of the land’, overriding all ordinary legislation. Thus, the creation and reform of a national constitution is vital for lasting peace, good governance and stability of a state and should ideally be an honest expression of a national consensus. This underlines the importance of the requirement of Article 24 (a) of the Covenant that citizens participate ‘directly or indirectly’ in public affairs, a critical part of which is the constitutional review process.
In the last few decades, several countries in Africa embarked on constitution making or reviews with varying success. Whilst some constitutional review processes were people driven or centered, others were elitist in approach and driven by politicians who had partisan agendas.
The literature on constitution making process in Southern Africa suggests that there are typically three phases of constitution making:
(1) the first phase that took place at independence. This was led by colonial powers; It simply conferred self-rule and outlined the basic structure of government with a modicum of human rights.
(2) The second phase was characterized by amendments after independence, that tended to concentrate power in the presidency;
(3) The third phase is often associated with a wave of democratization. During this phase an attempt was made to promote political pluralism, good governance, constitutionalism, and the rule of law.
As for the content of constitutions, recent constitutional reviews have drawn lessons from the Universal Declaration of Human Rights of 1948 and other international, regional, and sub-regional instruments, including other successful constitutional processes.
Why Constitutions?
It may be important before going further in our discussions, to say why constitutions are so important. Experience has shown that men and women who are invested with power tend to abuse it. It is precisely because of this potential abuse that countries have fashioned constitutions that can constrain the exercise of power. In a way constitutions are founded on mistrust of those wielding power at any given time.
There are five broad reasons why constitutions are important. Firstly, Constitutions provide for the foundation of almost every nation’s legal system. A constitution is a statement of values and is an embodiment of a contract between the governments and the people of any nation.
Secondly, in many legal systems, constitutions are superior to all other laws, making them critical tools for overturning discriminatory legislation. For instance, in India, in 2017, the Supreme Court ruled that the traditional practice of “instant divorce” in Islamic marriages which allowed men to legally divorce their wives by saying the Arabic word for divorce three times violated the constitution’s protection for gender equality.
Thirdly, modern constitutions refer to or acknowledge the binding nature of certain international human rights instruments. This enhances the protection the Constitution offers to people.
Fourthly, Constitutions can protect people from policies that undermine equal rights.
Fifthly, Constitutions are important in shaping public policy and programs.
Finally, Constitutions are an important tool for civil engagement, education, and activism. In India activists undertook 115 days march to establish a constitutional right to education. In Kenya civil society groups published copies of constitutions in Braille. In Germany, newly arriving refugees receive copies of a Bill of Rights in Arabic.
With all the above in mind, it is important to say, as I always do, that a constitution is not a panacea for all societal ills. It is a promissory note. It requires judges who can transform these promises into tangible deliverables when called upon to do so. That explains why it is important to ensure, when reviewing a constitution, that the provisions around judicial functions are strengthened and placed beyond the reach of politicians. These provisions must guarantee independence and impartiality, the key attributes of a credible judiciary.
With the above in mind, it is easy to appreciate that a constitutional review is a rare opportunity offered to a nation to ensure that everyone contributes to the establishment of ground rules that will ensure that each one of us and future generations have a fair and equal chance in life to succeed and be happy people.
In a continent where the rule of law and equal worth of all persons are under constant attack, fashioning a constitution that can act as an effective shield is imperative. We all need strong progressive constitutions to live a life that can guarantee human dignity.
What then is a Constitutional Democracy?
Constitutional Democracy
The key characteristics of a constitutional democracy include the following:
i) Popular sovereignty. This basically means that the people are the ultimate source of power, and the authority of government is based on the will of the people. This element of a democratic order finds recognition in many international legal instruments including the Universal Declaration of Human Rights of 1948 (UDHR).
ii) Majority rule and respect of minority rights. A democracy recognizes that the majority must have their way on how a country is run but it does not permit the tyranny of the majority over the minority. In a constitutional democracy the rights of the minority must be protected and respected.
iii) Limited government. In a constitutional democracy the powers of government are limited by law and the dictates of the constitution.
iv) Institutional and procedural limitations on powers. In a constitutional democracy there are certain institutional and procedural mechanisms which limit the power of government.
These include:
The doctrine of separation of powers
Powers are separated among the 3 branches of government being the Executive, the Legislature, and the Judiciary. However, there is occasional inevitable overlapping of functions among these 3 branches of government.
Checks and balances
The above 3 branches of government are required to check each other. For instance, checks and balances may include the power of the court to review Executive action. In exercise of their power of review the courts may declare actions of other branches of government to be contrary to the constitution and therefore null and void.
Due process of law
In a constitutional democracy, the individual rights such as the right to life, liberty, equality, and non-discrimination are guaranteed under the constitution and the rulers are obliged to respect those rights.
Periodic free and fair elections
In a constitutional democracy, elections should be held regularly, and such elections must be free and fair. At the end of the elections and once the will of the people has been ascertained, transfer of power must take place in a peaceful and orderly fashion.
What is a transformative Constitution?
The concept of a transformative constitution encapsulates two notions: transformation and constitutionalism. Transformation entails bringing about fundamental and far-reaching change in a structured way. It entails change for the better. For lack of better phraseology, you can say it entails far reaching engineering of society. Under a transformative constitution the State cannot be a bystander in shaping society in which individuals can fully enjoy their rights. A transformative constitution obliges the courts to interpret the constitution with reference to specific social and economic context prevalent in the country as a whole.
In the context of South Africa, Albertyn and Goldblatt, writing the South African Journal of Human Rights in 1998, wrote that transformation requires: “require a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines...”
In the context of Botswana, a transformative constitution would have to deal squarely with the distribution of power and break the over concentration of power in one authority. It must also address unequal and insufficient access to necessities of life, housing, food, water and health. This is so because if these inequalities exist, the quest for substantive equality would always ring hollow. A transformative constitution aims to reduce, and ultimately eliminate, the disparities in wealth and power.
The quest for economic justice for every person must go hand in hand with a legal system that can hold all those who wield power, whether public or private accountable. The legal system must ensure that every exercise of public power is justifiable. Mureinik, writing within the context of the changes occasioned by the democratic constitution of South Africa, wrote about a shift from “ a culture of authority” to “ a culture of justification” – “a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests of the cogency of the case offered in defence of its decisions, not the fear inspired by its command..”
It must also be emphasized that transformation is not a temporary phenomenon. It is a permanent ideal, a dynamic way of looking at the world that creates opportunities for every person to realize his or her potential to the full.
Constitutionalism is premised on fear of unlimited power – and on the infallibility of human beings and emphasizes the need for a limited government. This is an idea often associated with John Locke and the founders of the American Republic, who argued that government must be limited in its powers, and that the authority and legitimacy of any government comes from the people – often expressed through free and fair elections – and that government would respect the limitations on its powers.
Limiting the power of government is an essential feature of the Rule of Law. Aristotle wrote that the advantage of the rule of law, compared to the rule of man flowed from Human fallibility:
He wrote: “Even if it be better for certain individuals to govern, they should be made only guardians and Ministers of law ... for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men ... the law is reason unaffected by desire”. (Aristotle, The Politics, S Everson (Cambridge) University Press (1998) 78.
In juridical terms the meaning of “transformation” is highly contested and there is no single stable meaning of “transformative constitutionalism”.
However, it may well be that Prof Karl Klare was correct to describe the concept of transformative constitutionalism, as: “ A long term project of enactment, interpretation and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction”.
*Hon Justice Professor Dingake – Justice of the Supreme and National Courts of Papua New Guinea and the Residual Special `Court of Sierra Leone. This is the first part of his public lecture presented virtually at the recent Motheo o Mosha public lecture. Mmegi will run the second part of his lecture in the next edition
