To varying degrees, our independence Constitution has its supporters and critics. Despite the various amendments that were introduced over the years, it did not change much from its original form and content.
It was certainly not a perfect document. I don’t think that even its framers were of the opinion that it was flawless – or timeless. As constitutional scholars are wont to remind us there is no perfect Constitution anywhere. Even in the best case, a country’s Constitution is a compromise of a society’s many competing and, at times, conflicting interests. As with all compromises, the glass will always either be half-full or half-empty; it is almost impossible to have a universal consensus of the entire society.
One commentator expressed the view that even the United States constitution – the world’s first permanent constitution of its kind that served as a model for several other subsequent ones – is not perfect with a capital “P”, but with a small “p”. The point being made here is that even with the obvious limitations, its strengths outweigh the weaknesses.
It is inevitable that over time these documents would be amended to make them more relevant to the current times, and give expression to new aspirations. We see this with more modern constitutions that go beyond the civil and political nature of the first generation of human rights to entrench second and even third-generation rights.
Exactly one of the criticisms about our independence Constitution is that it did not go further than the civil and political to – among others – guarantee socio-economic rights. As society evolves and develops, it is to be expected that aspirations and views on how to enhance its social order should also change – and at times radically. Even in the United States, there is a growing body of opinion held by both scholars and citizens that their over 230-year-old constitution – which has been amended 27 times, the last being in 1992 – is out of touch with the country’s contemporary reality. And it is held as the premier legal document of the Western world!
I am neither a fierce critic nor the most zealous defender of our founding Constitution. My objective assessment is that it was a fairly good document for its time that set us on the road to building a fairly successful democracy. But I am not blind to its limitations. Perhaps the first person I heard express misgivings about the Constitution was Sir Seretse Khama, which he did on a number of occasions. His words were: “Constitution e ya lona ga e a siama”. His major gripe was in regard to the powers that it vested on the President of the Republic, which he deemed excessive – quite an irony because at the time, as the person executing the functions of the Office of the President, the powers were vested on him. Seretse’s sentiment was that while we were dedicated to the idea of building a democratic republic, our Constitution – on the other hand – in the hands of someone so predisposed could very easily be an enabling instrument for a dictatorship. He was very uncomfortable with what he saw as the ingraining of an all-too-powerful imperial presidency. On one such occasion, he used a very dramatic and chilling illustration to express this lingering disquiet. He prefaced his case with an incident that had happened a few days prior when we held a ceremony to lay the foundation stone for the construction of Tsholetsa House. Seretse was a draw card speaker, and there was always a huge turnout at occasions where he was billed to speak. On this day, however, at least one individual in the crowd was not an admirer of his – and certainly not a member of our party. Speaker Difatlhwe was a very cantankerous fellow from Mochud. He was a BPP organiser in Mochudi, and seemed to have made it his mission to prove that he could hurl any invective at the President and get away with it. Or perhaps, he was out to extract a reaction that would make him a martyr of sorts. Whatever the poor man’s motive, Seretse had long seen through Difatlhwe’s antics and never took his jeers to heart. In fact, Seretse would often turn the joke on his supposed tormentor. As with previous encounters, he laughed off Difatlhwe’s weak attempts at disruption and concentrated on the business at hand. But he had not forgotten the little sideshow.
“I could instruct a police officer to shoot that chap who was trying to be a nuisance, and the instruction would be carried out without question,” he said a few days afterwards to illustrate his disquiet at having a president seemingly above the law.
It was too extreme – perhaps even farfetched – an example, but I believe he chose it deliberately because he followed it with an ominous warning that: “One day you might have a mad man as your president with all these powers!”
The logical question would be: Why didn’t we amend it then? It is certainly a legitimate enquiry because we had a leader at the helm of the nation who was a lawyer, undoubtedly a visionary whose horizon was far wider than most of his colleagues’, and a man of progressive disposition.
And he had pronounced deep misgiving about certain clauses in the founding law of the republic – not once, not twice, but on a number of occasions. Sometimes he did so in very graphic and grim terms. I suppose we were too comfortable, or even too naïve because whenever Seretse expressed this uncomplimentary sentiment about the Constitution, the reaction from almost all of us would be to laugh it off; it didn’t help his cause that he always accompanied his case with a joke or two. Then we would carry on as usual. In a way, we would be forgiven for thinking that we would always have a Seretse, or even a Quett Masire, residing in the State House. I believe we were guilty of what most new nations go through, especially where the founding leader is a towering, charismatic and very popular figure – as was our case. Seretse was our George Washington, and we were all enthralled by his unpretentious gravitas and principled leadership.
It was our age of innocence and honeymoon period. The thinking was: what could go wrong? We did not know then – or appreciated – that “a lot” can go wrong.
At the dawn of South Africa’s democracy, I hear someone from somewhere on the continent cautioned the drafters of the final constitution that, “do not think you will always have a Nelson Mandela as your president”. It was a sagely piece of advice.
Without trivialising an important issue, perhaps for most of us at the time that Seretse was cautioning us about the excessive presidential powers, priorities lay elsewhere.
We were one of the poorest countries in the world that was prone to droughts and famine, with high levels of illiteracy, widespread poverty, as well as a lack of basic social amenities and infrastructure. That may have been the focus for most of us in the country’s leadership. Clearly, that was the concern for the vast majority of citizens. At the time, we did not have an enlightened citizen middle class and intelligentsia, who are in the main the ones who always set the agenda for this kind of discussion. So the discussion fell through the cracks.
With the benefit of hindsight, we definitely should have initiated a comprehensive constitutional review at some point; if not during Seretse’s time or even in the course of RraGaone’s presidency, certainly during Mogae’s term.
By the middle of RraGaone’s era, we had come of age as a nation, our eyes were now open, and we were wiser.
We faulted by adopting a piecemeal approach to constitutional review. We missed an opportunity to do a comprehensive constitutional review when we amended it in 1997 to, among others, limit the term of presidency and introduce automatic succession by the vice president in the event of a vacancy in the presidency. We missed the train again in 2001 when we amended Sections 77, 78 and 79.
The result of our piecemeal and reactive approach is that we went for an unnecessarily extended period in which we denied citizens an opportunity to have real input into a vital document that shapes their republic. That’s why we later had an overwhelming sentiment that we should take the Constitution to the people for a comprehensive review. It was a legitimate request because, from the beginning, the Constitution that birthed our nation was never discussed with the people in the first place. We left the process for far too long. I certainly regret that I was party to the inaction.
(This is an excerpt from Hon. DK Kwelagobe’s forthcoming memoirs)
