MAUN: The seemingly lacklustre manner in which President Masisi’s administration is approaching the Constitutionalv review process has raised concerns and anxieties from day one.
Understandably, the Constitution-making process is a serious matter as it is not only a supreme law of the land but also establishes a solid foundation for socio-economic development. Admittedly, of all ruling party presidents since independence, Masisi had shown rare compaction by promising to review the entire Constitution.
When a constitutional review item first appeared in the ruling Botswana Democratic Party (BDP) 2019 General Election manifesto, sceptics dismissed it as an election gimmick.
For the majority of Batswana, it was a relief that this long-outdated document will finally be reviewed. Like many other London-crafted post-colonial documents, Botswana’s Constitution has been found to be non-inclusive and inadequate in many respects. Researcher, Luise White aptly notes that these Lancaster House documents “became shorthand for the compromise that became the constitutions.” Unsurprisingly, opposition leaders that included the late Phillip Matante, Motsamai Mpho and Dr Kenneth Koma made constitutional reform calls from the onset.
However, successive presidents since independence had had no appetite for reforms as the document obviously served the incumbent government. Former presidents Sirs Seretse Khama and Ketumile Masire rejected such calls insisting on the adequacy of the document and invoking the “If aint’t broken why fix it ...” mantra.
With increased calls for reforms, particularly from the civic organisations and “minority” tribes, former president Festus Mogae launched a half-hearted attempt to amend the controversial Sections 77, 78 and 79 of the Constitution. The exercise turned into a monumental failure. During his presidency, Ian Khama simply could not entertain any constitutional reforms given his proclivity for unbridled power that Botswana’s current Constitution bestows on the President. President Masisi’s promise of Constitution review during the 2019 General Election thus rekindled hopes for such an exercise. Masisi was unable to kick-start the review process apparently due to the COVID-19 outbreak. And sceptics had started to prematurely dismiss the promise as one of the government’s election gimmicks.
That is until some information was leaked to the effect that the ruling party had selected its constitutional review team. There was a justifiable outcry from the opposition political parties, civil society and other stakeholders. Government was accused of highjacking what is essentially a national project and turning it into a partisan one.
Then on October 17, 2021 government abruptly announced the setting-up of the ‘Presidential Commission of Inquiry into the Review of the Constitution’, and the appointment of committee members on December 17, 2021. A group of civic organisations comprising human rights workers, labour unions, media and others were appalled, noting the lack of transparency, accountability, lack of information about the process itself, lack of consultation with elected representatives that include councillors and MPs, and Dikgosi. They also questioned the criteria and selection of committee members, as well as the reporting lines that end with the submission of the report to the President. And the opposition legislators strongly felt the ‘Commission of Inquiry’ route was misplaced and inappropriate for such a monumental national project.
They instead called for the enactment of Constitution Review Act to guide the entire review process. This would provide for transparency and accountability and give the process credibility, they argued, adding that the ‘Commission of Inquiry’ route is open to political manipulation. Their concerns and fears were vindicated by President Masisi’s pronouncements at a BDP Women’s Wing elective congress in Kanye on June 17-19, 2022. Ironically, this was even before the ‘consulting’ committee had concluded its work. For instance, the vast majority of Batswana at kgotla meetings addressed by the commissioners had called for a direct election of the president.
At the Women’s congress, Masisi reportedly said, “...Election of the president will bring chaos in the country... We will be messing up the country; so let it remain clear that a leader whose party wins is given power for five years.” This was a shocking statement coming from a President who had promised an inclusive and transparent exercise. Masisi is literally spoilt for choice as Botswana could have benchmarked with successful Constitution-making processes in neighbouring countries, particularly the newer democracies of Namibia and South Africa. Masisi, however, settled for the most archaic and failed process as exemplified by the Zambian and Zimbabwean cases. The two countries had taken the perilous route of “Commission of Inquiry” with inconclusive results for the former and ruinous outcome for the latter.
This route failed mainly as it allows government to retain the power to reject or accept the people’s recommendations. Former Zambian president Frederick Chiluba’s government unilaterally instituted a “Commission of Inquiry” but the Zambians roundly rejected its report. Government ultimately succumbed and instituted the Constitution Review Act, a route most stakeholders had demanded from the onset. However, successive Zambian administrations of Michael Sata, Rupiah Banda and Edgar Lungu have tried unsuccessfully to manipulate the end product to their liking. The exception was president Levy Mwanawasa whose premature death in August 2008 denied the Zambians the constitutional closure after instituting the National Constitutional Conference (NCC). However, the upright Hichilema Hakainde’s administration is expected to finally achieve that closure. Like Chiluba, former Zimbabwean strongman Robert Mugabe also highjacked the Constitution-making process and weaponised it against his perceived political enemies. To his credit though, Mugabe’s process had a ‘List of Constitutional Issues and Questions.’ In the Botswana process, no such guiding document existed and contributors at kgotla meetings could address the Constitutional Review Committee on every aspect of human endeavour.
At the start of the commission’s work in Zimbabwe, a civic organisation-driven National Constitution Assembly (NCA) maintained that the process was fundamentally flawed. The NCA declined to participate and instead launched its own consultation process with the people and subsequently published its own draft Constitution. This development undoubtedly compelled the drafters of the official Constitution to stick to aegis of professionalism. The NCA had effectively kept the process in check and as a result the government team produced a draft that was deemed highly progressive. Similar to the requirements of the ongoing Botswana process, the draft was submitted to then president Mugabe as opposed to Parliament. Mugabe’s government swiftly moved to introduce “corrections and clarifications and amendments” that included compulsory acquisition of agricultural land for resettlement without compensation; introduction of compulsory military service and the ban on same-sex marriages.
The “corrected” draft was then put to a national referendum. In February 2000 Zimbabweans voted whether to replace the 1979 Lancaster House Constitution with the “new democratic” one. However, to Mugabe and ZANU-PF’s shock and chagrin, government lost the referendum vote to the NCA by 697,754 to 578,210 ballots. But the ruling ZANU-PF then abused its parliamentary majority to push through the constitutional amendments that included the compulsory land acquisition. Ostensibly, Mugabe and his cronies’ inclusion of land grab clauses had been intended to punish the Zimbabwean white community for having participated and supported the NCA campaigns.
The undoubtedly necessary land reforms were subsequently corrupted. The seeds of Zimbabwe’s political and economic ruin started with the fundamentally flawed Constitution-making process. Generally though, the Constitution-making process should not have to end up inconclusive as in the case of Zambia or as destructive like in Zimbabwe.
The South African experience is indicative of a successful outcome should the process be properly structured. The representatives of all political parties (including the ruling party) and other stakeholders (NGOs, faith-based groups, labour unions and others) had selected a group of experts to draw up a draft constitution, complete with thematic working committees. The resultant draft Constitution was publicly debated and analysed by an elected forum – the Constitutional Assembly. It is therefore, not late for President Masisi to redeem the process and leave an enduring legacy for Batswana and the SADC region. It is a worthy legacy to bequeath to future generations and personally to the legacy of the presidency.
