Lediretse Molake
3 July 2009
Correspondent
If I can write what I am about to write without any fear, then I am a free person. If I cannot then I need an explanation from my government as to what constitutes freedom of expression.
I am quite sure that a lot of our people cannot contemplate such an event, dissolution of parliament by a former army chief, happening in Botswana. Yet if recent press reports about the upcoming general elections are to be believed this is about to take place.
It is a given that Section 35(3) of our constitution states that a person exercising the functions of the Office of President by virtue of Section 35(1) does not have power to dissolve parliament.
It is also a given that Ian Khama exercises the functions of the Office of President by virtue of Section 35(1) of our constitution. It is also true that he is a former commander of the Botswana Defence Force. So if he dissolves parliament a journalist will be perfectly within the law to report such an event as having occurred in Botswana.
I know that a lot of people will be peeved by such a report. But what one needs to ask is why given that our government sells copies of the constitution with the abovementioned provisions should anybody be annoyed. Further even if they are annoyed can they counter the truthfulness of such a report?
I believe the main problem with people in positions of power is that they lack the ability to anticipate each and every situation, they cannot see around corners. This is not a sign of weakness but a characteristic that is inherent in the human condition. Their solution to this problem is top seek to limit what people can say or publish. This type of solution is ineffective for it does not cure their inherent inability to see around corners.
The sooner our leadership appreciate that they are human, and incapable of seeing around corners, the sooner they will realise that trying to muzzle free flow of information is a waste of time. All it does is generate a negative vibe.
Coupled with this situation of a former army commander dissolving parliament, in a situation that some of us hold to be unconstitutional, there is also the manner in which we conduct our elections. We seem not to care that we are not complying with our constitution.
In terms of Section 62(b) of our constitution, a person is disqualified from standing for office as a Member of Parliament if they have entered into a composition with their creditors and they have not discharged their obligations to their creditors.
In terms of Section 35(2)(d) of the Electoral Act a candidate must complete Form O, containing a statement that he or she is willing and qualified to stand for election. In terms of Form O, the candidate must state that he or she has none of the disqualifications referred to in Section 62 of the constitution.
In terms of Section 37(2)(a) a returning officer is entitled to hold a nomination paper invalid if the candidate possesses the disqualifications for membership of the National Assembly. When one looks at the time between nomination and declaring the validity of nomination, no returning officer has enough time and resources to check the truthfulness or otherwise of whether any candidate in disqualified in terms of Section 62 of our constitution. Can someone please tell me about any politician who was ever found to be disqualified by this provision. Surely 40 years is long enough to have given us one such politician. Perhaps I expect too much, after all nowadays a student can get four D's and these will result in a C average.
It is a well-established principle of law that a man cannot be a judge in his own cause. Our application of the Electoral Act violates this principle in that the IEC allows a candidate to determine whether he or she has none of the disqualifications referred to in Section 62 of the Constitution.
It is in the public domain that some powerful Botswana Democratic Party heavyweights benefited under the CEMAEF scheme, through which government interceded and purchased their equity stake in private property entities owned by these gentlemen when they became subject to foreclosure by financial institutions. It is an established practice of the banks or financial institutions to require personal surety for property loans. No one can, with any certainty, say that these gentlemen had not entered into some rescheduling of the loans and had failed to discharge their obligations, hence their resort to CEMAEF. No one can say that these gentlemen were not in this situation when they were nominated to stand for election as Members of Parliament.
Our politicians from either side are allowed to be judges in their own cause. They are allowed to determine and conclude that they are not subject to the disqualifications under Section 62 of our constitution. The Independent Electoral Commission never undertakes any investigations to determine the correctness of otherwise of these assertions by our politicians before declaring the candidates validly nominated.
The period to lodge election petitions is limited to 30 days. This suggests that if information surfaces that would otherwise have disqualified a candidate such information is useless if obtained after 30 days. Given the selfish nature of most people who seek political office, it is highly likely that they will knowingly mislead by declaring that they have no disqualifications hoping that 30 days will lapse before anybody is the wiser. We are so keen to vote that we do not care whether our constitution is complied with or not. Those who question the way we conduct our elections are treated as in no better position than the husband who dared enquire as to where the meat came from.
Disrespect for our constitution starts with apparently harmless actions like elections. We may very well hold that what matters is that the people choose their leaders, but what sort of leaders are we choosing when they do not respect our constitution.
I believe the idea behind Section 62 is to disqualify leaders who are in the pockets of their creditors. A leadership in the pockets of its creditors cannot exercise free thought and may very well make laws that serve the limited interests of its creditors instead of its constituents.
We must understand that our constitution is not subject to other laws. The procedures set by the Electoral Act in terms of disqualification cannot therefore be used to gloss over the constitutional requirements for eligibility to stand for election as a Member of Parliament. An independent party must determine whether people who put their names forward are indeed not disqualified from standing for elections.
The IEC must do its job of determining eligibility, it should not allow politicians to interfere in its processes by allowing little time for verification of information provided by politicians.
In the book " Prisoner of Mao" the author relates the story of a misguided idea by the prison authorities in China to give more substance to the bread fed prisoners by adding paper to the dough. Initially this looked like a good idea until the prisoners started experiencing excruciating pain by being unable to pass feaces. The paper absorbed the water in the stomach and intestines.
We may think that diluting our constitutional requirements as regards elections is a good idea, but the consequences are dire. It goes to the core of our values as a nation. We profess to uphold the rule of law. I cannot see how as a nation we can make this claim when we cannot uphold our constitution when it comes to election of our leaders.
We seem not to make a distinction between democracy according political expediency and democracy in accordance with our constitution. Our people are denied an opportunity to exploit to the fullest, constitutional provisions that can ensure they elect a high caliber leadership, because we seem to think that once we have made law we need not ensure compliance with our constitution. The Electroral Act does not take precedence over the constitution, its provisions should be understood as amplifying the constitution.
It is irrelevant whether our people know that our constitution is not being complied with or not. Every leader has a moral duty to obey the laws of the country, whether the people are aware of the existence of any provision of the law or not. No leadership worth its salt can rely on and exploit the ignorance of its people. It is its duty to inform and educate its people on the position of the law that governs the land.
A lot has been said about lawyers being criminals. Lawyers however recognise and have a positive duty to disclose to the court positions of law or authorities that may defeat their client's cause of action. Our political leadership must set forth whether they uphold a standard such as lawyers maintain. Section 62(b) of our constitution places such a duty on our politicians. We see their names in newspapers about their assets being sold. Surely it is too much of a coincidence to expect that come election time they have all resolved their financial situations.
This country needs a political leadership that is confident and sure-footed and that does not rely on the ignorance of its people. I am not aware of any society that ever advanced under a leadership that thinks ignorance on the part of its people is a valuable commodity. A society that generates leaders who think their peoples' ignorance is a commodity, sooner or later gets overrun by societies that inform and educate their people. History is replete with civilizations that stifled knowledge and its expansion, they all perished and are now archaeological relics.
We have for more than 40 years upheld lawful voting and unlawful elections. Our voting is lawful in that registration and the process of voting is in accordance with the law. Our elections are unlawful in that they do not comply with the constitution and accepted principles of determining eligibility for candidates.
If Botswana continues on this path of deep-seated contradictions between the law and practice, it will perish. We are fooling ourselves if we think we can sustain these types of contradictions.
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