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Is Botswana a constitutional democracy (Part I)

Publishing Date : 08 October, 2018

Ndulamo Anthony Morima

Botswana has been hailed as one of the world’s greatest democracies where the rule of law, independence of the judiciary and separation of powers between the Legislature, Executive and Judiciary reign supreme.

It holds regular elections every five years and has its elections, which are generally regarded as free and fair, conducted by an Independent Electoral Commission (IEC), though its independence is questioned by some. Yet, in my view, while Botswana’s position as a majoritarian democracy is incontrovertibly prime, its status as a constitutional democracy is questionable.

In this series, I, albeit in a cursory manner because of space constraints, consider whether Botswana is a constitutional democracy, or it is a mere majoritarian democracy. It is apposite that before the discussion, a definition of a constitutional democracy versus a majoritarian democracy should be proffered?

A constitutional democracy can be defined as a system of government where powers of the majority are exercised within a frame work of the constitution designed to guarantee the rights of all, not just the majority. In a constitutional democracy the authority of the majority is limited by legal and institutional means so that the rights of individuals and minorities are respected.

In a constitutional democracy, coalition and/or majority rule is balanced by minority and individual rights and interests. Here, deference is not just to the majority, but also and most importantly to the supreme law, the Constitution. On the contrary, in a majoritarian democracy, the emphasis is not the Constitution, but on the will of the majority no matter how such will tramples on the will and interests of the minority.

Therefore, the fact that a country, as many do, has a document called a Constitution, does not necessarily mean it is a constitutional democracy. In fact, few countries are constitutional democracies. Many are majoritarian democracies. Not even the so-called liberal democracies are necessarily constitutional democracies. The question is: is Botswana a constitutional democracy or it is a mere majoritarian democracy? In attempting to answer this question, we compare Botswana’s Constitution with that of South Africa.

Chapter 1 of South Africa’s Constitution defines South Africa  as "one, sovereign, democratic state" based on principles of human rights, constitutional supremacy, the rule of law and universal adult suffrage. This chapter contains a supremacy clause which establishes that all other law and actions are subject to the constitution, and that any law or action not in consonance with the Constitution is invalid.

Chapter 1 of Botswana’s Constitution declares Botswana as a sovereign Republic and provides that the Public Seal of the Republic shall be such device as may be prescribed by or under an Act of Parliament. Compared to South Africa, therefore, Botswana’s foundational provision, Chapter 1, does not hinge the country’s democracy on constitutional supremacy. It rather, like that of its colonial master the United Kingdom, hinges it on sovereignty.

Granted, Botswana is a democratic state based on principles of human rights as enshrined in chapter II of the Constitution, but that does not make it a constitutional democracy. Of course, Botswana, like South Africa and many other countries, observes the rule of law and gives potency to universal adult suffrage, but does not necessarily make it a constitutional democracy either.  

Chapter 9 of South Africa’s Constitution provides for State Institutions Supporting Constitutional Democracy, namely the Public Protector, the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General, the Independent Electoral Commission and the Independent Communications Authority.

Botswana’s Constitution has no provision for state institutions supporting constitutional democracy in the areas of promotion of human rights, cultural, religious and linguistic communities and gender equality. Of all these institutions, Botswana only has an Ombudsman, an equivalent of South Africa’s Public Protector, the  Independent Electoral Commission(IEC) and the Auditor-General which, except for the Auditor-General, are not even constitutional creatures, but are provided for by other law.

The reality is that, in Botswana, there are no state institutions supporting the promotion of the constitutional rights enshrined in Chapter II of the Constitution which provides for the protection of fundamental rights and freedoms of the individual. State institutions supporting constitutional democracy should not be confused with such government departments as the Department of Gender Affairs, for instance, which, because they are part of the Executive, invariably protect the interests of the State, often at the expense of citizens’ constitutional rights.  

In South Africa, the state institutions supporting constitutional democracy stand guard over the rights provided for in Chapter II of the Constitution, the Bill of Rights. Consequently, the rights of all sections of the society, no matter how minor they are, are agitated for.

In Botswana, citizens, especially minorities, rely on such pressure groups as Ditshwanelo Centre for Human Rights, Emang Basadi (EB), Lesbians, Gays & Bisexuals of Botswana (LEGABIBO), Kamanakao Cultural Organization (KCO), Special Promotion of Ikalanga Language (SPIL) and First People of the Kalahari (FPK) to agitate for their rights.

Unfortunately, because of lack of resources and lack of recognition by government, these pressure groups have very limited impact in the promotion and protection of citizens’ constitutional rights. They need the support of such constitutionally recognized and well-resourced state institutions supporting constitutional democracy as the Public Protector in South Africa which has, because of its gravitas, protected the rights of millions of South Africans.

As I argued in last week’s column, Botswana needs a Human Rights & Good Governance Commission as one of the state institutions supporting constitutional democracy. Of course, Botswana prides itself with an independent judiciary, but many Batswana, especially the minority whose constitutional rights are violated, are not able to have legal recourse because of the prohibitive costs of retaining an attorney.

Chapter 12 of South Africa’s Constitution recognises the status and authority of traditional leaders and  customary law, subject to the Constitution. This provision, which is non-existent in Botswana’s Constitution, protects the citizenry from arbitrary exercise of power at the expense of citizen’s rights and liberties which is often dispensed under the guise of tradition and custom.

In view of the aforegoing, I am of the view that though Botswana thrives to respect its Constitution, it is not a constitutional democracy, but rather a majoritarian democracy. This does not, however, mean that Botswana is a dictatorship. It simply means that constitutional supremacy does not have the primacy of place in Botswana’s democratic dispensation.

Absurd as this might sound, in my view, the Constitution is not the foundational pillar of the being of Botswana’s nation state. It is the people’s will that is, and sometimes that peoples' will takes precedence over the constitutional imperatives. Botswana’s democracy is, in any event, defined as ‘government of the people for the people and by the people’. The emphasis is the people, not the constitution isn’t it? And by the people, it can only be meant the majority isn’t it?

Now that we have concluded that Botswana is not a constitutional democracy, in the second part of this series we discuss the several examples which demonstrate our conclusion. In the final part of this series we suggest the constitutional amendments which are required to make Botswana a constitutional democracy if that is indeed its aspiration.



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