Batswana have given the new government of the Umbrella for the Democratic Change (UDC) the privilege to drive this process. Realising that this is a rare opportunity to bolster our democracy and the Constitution being a sacrosanct law that governs all of us, irrespective of political affiliation, I believe that public education is desperately needed. It is for this reason that I have decided to do a clause by clause analysis of all the 20 clauses of the Constitutional Bill, which proposes a new institution, the Constitutional Court.
As political scientists often say, democracy works better when the voting public is well informed. Much of the debate so far has been whether to have this court or not. There is no discussion whatsoever about the content of the Bill.
It is like there is no Bill before Parliament at all. The discourse at the moment is dominated by the President of Botswana and his ministers and in their frenzied eloquence they are not talking about what the Bill proposes-a glaring omission. Very few MPs have debated the Bill.
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This is a national tragedy. Constitutions have permanence and therefore constitutional making must be pursued with sober minds and seriousness. A lesson from the Americans delineates this.
Americans are stuck with ‘the right to bear arms’, a constitutional provision that dates back to another era (1791) when America did not have a professional army or police service. It is conveniently exploited by those with a particular political view while dozens of Americans are slaughtered in gun violence day in and day out. A billion-dollar gun lobby has since merged and blocks every attempt to amend the constitution.
If Batswana vote unwisely on any constitutional proposal they must know that it will be very hard and financially draining to organise another referendum to clean the mess. To start with, parliamentarians of a majority party in Parliament can simply stand in their way-block the thing on the floor of parliament! The constitutional amendment to establish a Constitutional Court must not be assessed in isolation but located within the broader framework of constitutionalism.
Why do nations make constitutions? A constitution serves three purposes. The first one is to define (limit) government power.
A constitution typically determines what power is allocated to the President and Cabinet, to Parliament and to the Judiciary and how it is to be exercised. It anticipates abuse and guards against excessive usage of power by any of these three branches of government-separation of powers. As Lord Acton long warned us ‘Power tends to corrupt and absolute power corrupts absolutely’.
Secondly, a constitution is a guardian of fundamental rights. Where governmental power ends, the rights of citizens begin. The constitution guarantees rights: from the right to life, to free movement, to freedom of speech, to privacy and similar.
And as a guarantor of rights, the constitution leans on the doctrine of the rule of law. First conceptualised by Professor AV Dicey in 1885 and refined by Lord Bingham into 8 sub rules, the concept provides amongst others that, the laws of the land should apply equally to all (unless where objective differentiation is required), the law must afford adequate protection of fundamental rights and means must be provided for resolving, without prohibitive costs or undue delay bona fide civil disputes. Finally a constitution provides a covenant, a symbol and aspiration of a nation.
A constitution is thematic. It is developed within a particular historical context by a people and normally to right some wrongs. It reflects a people’s shared values.
A couple of examples are apposite. The famous Declaration of Independence by the thirteen United States of America in Congress on July, 1776 was informed by their oppression under the King of Great Britain. They listed several instances of abuse, including refusal by the King to assent to laws necessary for the public good, dissolving Representative Houses many times and ‘has made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries’.
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