• Dismantling the imperial presidency
• Giving more power to the people, including the power to initiate a constitutional amendment.
• Enhancing democracy
• Altering power relationships in favor the people elected representatives and the people directly
• Broadening the Bill of rights to include clear enforcement socio-economic and cultural rights.
• The broadening of rights should include the right of every person to an environment that is not harmful to their health and well-being, the right to access to information held by the state, must recognize specific rights of children.
• We must specify the right to dignity and provide that the bill of rights applies and binds all persons, natural and juristic and binds all persons.
• On limitations, we must take a leaf from the Malawi Constitution and provide that: no restriction or limitations may be placed on the exercise of any rights and freedoms provided in the constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society.
• Demonstrate a heightened commitment to social justice – in particular decree measures to reduce the gap between the poor and the rich
• The courts must be given expansive powers to control the exercise of public power, usher in administrative justice; including the imperative to give reasons for every governmental decision and which reasons are subject to judicial scrutiny.
Botswana can draw lessons from many transformative constitutions in Africa and beyond. In Africa the Constitution of South Africa, Malawi and Kenya offers useful lessons. Beyond Africa, a few appropriate lessons can be drawn from Philippines. The 1987 constitution that was triggered by the people’s uprising was far reaching in making provisions that can assist to transform society for the better. Following the 1987 constitution, the Courts in Philippines no longer have claim space and push boundaries to enforce socio-economic rights.
The Judiciary in Philippines was given expanded judicial review powers. As part of this expansive powers the judiciary was given powers not only to “settle actual controversies involving rights which are legally enforceable, but also given power to determine whether or not there has been abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch or instrumentality of government”.
Under a transformative constitution judges bear the ultimate responsibility to justify their decisions not only by reference to authority or case law, but by reference to ideas and values. This approach requires an acceptance of the politics of law.
At the core of the idea of a transformative constitution or transformative constitutionalism is the idea that that an undesirable status quo must be improved for the common good. This perspective is informed by the desire to continuously seek better ways to transform society in ways that continuously enhances the lives of the people.
Obligations of the State
Our new constitution must constitutionalize the obligations of the state, breach of which is subject to judicial review.
• The state must respect, protect, promote and fulfill the bill of rights
• The obligation to respect requires the state to refrain from interfering with enjoyment of rights.
• An obligation to protect requires the state protect violations of rights
• An obligation to promote requires the state to educate and inform people of their rights
• An obligation to fulfil requires the state to take appropriate legislative, budgetary, judicial and other measures towards the full realization of rights.
The Constitutional Amendment Bill: Is Parliament at liberty to amend the Constitution as it wishes?
An unconstitutional constitutional amendment is a concept in judicial review based on the idea that even an amendment that complies with the constitutional procedural framework may still be unconstitutional. In constitutional law the notion of an unconstitutional constitutional amendment is deeply problematic. Generally, courts that have intervened to quash an amendment to the constitution have done so in circumstances where the constitutional amendment fundamentally alters the constitutional identity of the state, undermining its core values, principles and democratic character.
The court would also void a constitutional amendment that erodes the rule of law, undermines separation of powers, or compromises the independence of the judiciary. This could include amendments that grant excessive powers to the executive or legislative branch, or that compromises the integrity of the judicial system. It has been said that even the exalted position of government that holds executive authority cannot give it powers that the law does not confer it with. This position is a vindication of democracy and the rule of law. This is the rule of law in its formal sense, whereby all governmental power, is subject to the law. The rule of law is harmed by anything that distorts or dilutes the sovereign power of the people.
In most democratic countries, the Constitution is the supreme law of the land, as such, all laws and acts of the branches of government must conform to it. It is the constitution that defines the powers of all the organs of the state.
It follows that the governmental powers, including that which may be exercised by the judiciary, is determined by the parameters provided by the supreme law which is the constitution. As a common provision also, the legislature is given the authority to introduce changes to the constitutions under stringent procedures which must be followed. The legislature therefore may amend the constitution provided that the changes can pass procedural muster. Below we elaborate the circumstances under which a constitutional amendment may be declared invalid.
a. When the amendment undermines the rule of law.
All constitutions are created with an imprint of the sovereign will. These fundamental principles are embedded in the provisions of the constitution to encapsulate the hopes and aspirations of the sovereign people that created it.
One fundamental principle is democracy and the rule of law. The Court is not precluded from intervening if certain inviolable democratic principles are threatened by constitutional amendments.
b. When the amendment threatens the separation of powers.
Judicial review was conceived to prevent abuses from the other co-equal branches of government. It is the power of the court to examine and invalidate actions of the executive and legislative branches of government if their actions do not conform to the constitution.
Amendments that undermine the separation of powers are repugnant to the constitution as a whole. While it may be argued, as the respondents did in the MQG vs. The Knesset case, that amendments to the constitution are off-limits to the judiciary for as long as they were done in accordance with the legal process, the contention must fail because it will impair a fundamental democratic principle.
c. When the amendment alters the integrity of the constitution.
Constitutions have their own basic identity and character, and these have been carefully imbued at the time of their enactment. This identity and character may be likened to a “soul” that makes the constitution distinct and responsive to the people that created it. This constitutional soul reflects cultural and historical contexts.
A constitution that was created to embody the ideals of a democracy will necessarily be altered if drastic changes are made that creates a net effect of eroding these first fixed principles.
These extreme and exceptional cases were attendant when The Knesset amended the Basic Law to clip the powers of the judiciary. The High Court of Justice promptly took judicial cognizance and ruled in favour of the petitioners saying that the amendment limiting judicial review violates fundamental democratic principles and weakens the basic structure of democracy.
*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 second and final part of his public lecture presented virtually at the recent Motheo o Mosha public lecture
