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Home » Columns » Botswana’s automatic presidential succession is constitutional

Botswana’s automatic presidential succession is constitutional

Publishing Date : 10 April, 2018

Ndulamo Anthony Morima
EAGLE WATCH



Following His Excellency the President Mokgweetsi Masisi’s automatic succession to the Presidency, some are arguing that the automatic succession clause in our constitution is unconstitutional.



Others are arguing that section 35(1), read together with sections 35(3) and 35(4) envisages a situation where the Vice President only assumes office temporarily pending the election of President by the National Assembly under section 35(4) and in line with the procedure under section 35(5).


In arguing their case, many have started at section 35 of the Constitution. In my view, this debate should commence with section 34. Section 34(1) provides that “the President shall, subject to the provisions of this section, hold office for an aggregate period not exceeding 10 years beginning from the date of his first assumption of office of President after the commencement of this Act.


Section 34 is cardinal for it is the one that impels a sitting President whose term has ended to cease being President, allowing, by operation of law, the Vice President to assume the office of President by operation of section 35(1). Section 35(1) provides that “whenever the President dies, resigns or ceases to hold office, the Vice President shall assume office as President with effect from the date of the death, resignation or ceasing to be President.”


In terms of section 35(1), therefore, when a sitting President whose term has ended ceases to be President, the Vice President immediately assumes the office of President. There is no vacancy occasioned because the succession is instant and simultaneous.
The assumption of office by the Vice President in terms of section 35(1) is not temporary. It is up to the election of the new President, which in our case would ordinarily be after a general election.


Section 35(3) provides that “any person performing the functions of the President by virtue of subsection (1) or (2) of this section shall not exercise the power of the President to revoke the appointment of Vice President or dissolve Parliament.”  The former Attorney General, Dr. Athalia Molokomme, whose statement was published in the Botswana Daily News of 1st April 2008, rightly conceded that a literal interpretation of section 35(3) read together with section 35(1) may lead some to believe that in terms of section 35(1), a Vice President who comes in as President would have limited powers, viz, that he cannot revoke the appointment of the Vice President, or dissolve Parliament.


She also proceeded to say “...such an approach may also lead to a mistaken belief that section 35(4) of the Constitution would apply to the person who assumes office as President under the current dispensation...” 

I agree with Dr Molokomme when she says “this, however, is not the correct position of the law. It will be recalled that the repealed subsection 35(1) provided for a 'caretaker' President, as it were, for seven days, and that it therefore made sense to restrict his powers under section 35(3)...”


She continues to say “... because the current provision puts in place a substantive President, subsection (3) should have ideally been consequentially amended by the removal of the reference to subsection (1). That this was not done is a minor drafting oversight which ... has no material consequence on the validity of the automatic succession constitutional provision.”



Therefore, the argument that section 35(1), read together with sections 35(3) and 35(4) envisages a situation where the Vice President only assumes office temporarily pending the election of President by the National Assembly under section 35(4) and in line with the procedure under section 35(5) cannot be sustained.


That notwithstanding, Dr. Molokomme is right that it may legitimately be asked why section 35(4) was retained, or what purpose it is meant to serve. I agree with her that the answer to that question can be found in section 35(2). As she rightly asserts, “this section provides a solution for a situation where a person has assumed the office of President under the automatic succession clause (35(1)), following which, a vacancy occurs through the death or resignation of the President, and there is no Vice President.”


She is also right in concluding that “in such a situation, section 35(4) would kick in to ensure that there is no lacuna in the Presidency...” Further that “...it is this President who is subjected to the '7 day rule', and not the substantive President who assumes office under section 35(1).”



That former president Khama ceased to be President at midnight on 31st March 2018 and President Mokgweetsi Masisi was only inaugurated on 1stApril 2018 in the morning, does not mean that before his inauguration he was not President and there was, therefore, a vacancy in the office of President.


The Attorney General, Advocate Abraham Keetshabe, is right in arguing that, in our law, a President does not assume the Presidency at the time of taking the oath of office; the oath is to allow him to perform his functions, not to appoint him is President. In terms of section 35(2) “if the office of President (a) becomes vacant in circumstances in which there is no Vice President; or (b) is vacant whilst the Vice President is absent from Botswana or is by reason of physical or mental infirmity unable to perform the functions of his office, the functions of President shall, until such time as a new President assumes office in accordance with this section or section 32 of this Constitution, be performed by such Minister as the Cabinet shall appoint.”


This is the section that creates a vacancy in the office of President and in terms of which there can be no automatic succession to the office of President. But, this is not the section at issue in the present matter.  To repeat, the section at issue is section 35(1) which, in my view, inarguably constitutionalizes automatic presidential succession. This could be the end of the argument, but for completeness I now turn to the other constitutional provisions which touch on the vacancy and tenure of office of President.   


Firstly, section 35(4). It provides that “if the office of President becomes vacant, the National Assembly shall, unless Parliament is dissolved, and notwithstanding that it may be prorogued, meet on the seventh day after the office of President becomes vacant, or on such earlier day as may be appointed by the Speaker, and shall elect a person to the office in such manner as is prescribed by the next following subsection, and, subject thereto, by or under an Act of Parliament.


Secondly, section 35(6). It states that “ no business other than the election of a President shall be transacted at a meeting of the National Assembly under subsection (4) of this section or under section 32(6) of this Constitution and such a meeting or any sitting thereof shall not be regarded as a meeting or sitting of the Assembly for the purposes of any other provision of this Constitution.”


These are the sections in terms of which the President is ordinarily elected after general elections. These sections are not applicable for automatic presidential succession and are, therefore, irrelevant for our discussion.  Thirdly, section 32(6). It provides that “where (a) any candidate in an election of a President dies during the period commencing with the taking of the poll in the Parliamentary election and ending when the result of the election has been ascertained and that candidate would, but for his death, have been entitled to have been declared elected as President under subsection (3) of this section;


It continues to say or (b) the returning officer declares in accordance with the provisions of subsection (3) (d) of this section that no candidate has been elected, the new National Assembly shall meet on such day(not being more than 14 days after the result of the election is ascertained or, as the case may be, the declaration that no candidate has been elected) as the Speaker shall appoint, and shall elect a person to the office of President in such manner as prescribed by section 45(5) of the Constitution and subject thereto by or under an Act of Parliament. Such an election shall take place before the election of the Specially Elected Members of the National Assembly.”


This section too is not applicable to automatic presidential succession since it involves elections and is, therefore, irrelevant for our discussion. Fourth, section 32(7). It provides that “a person elected to the office of President under this section shall assume that office on the day upon which he is declared elected.”


It is needless to state that this section too is not applicable to automatic presidential succession and is, therefore, irrelevant for our discussion. This is because a section 35(1) President is not elected, but automatically becomes President when his predecessor dies, resigns or ceases to hold office. To repeat, I submit that section 35(1) constitutionalizes automatic presidential succession in Botswana. Whether some believe that it is undemocratic to the extent it does not allow for contest is another matter.


But to argue that a system which finds unequivocal expression in the constitution is unconstitutional is unmeritorious. How can something provided for in the constitution be unconstitutional? Usually, we talk of a provision of an Act of Parliament being unconstitutional if it is inconsistent with the constitution in which case it must be struck down for constitutional invalidity.


No wonder, as cited in the book ‘Regime Change and Succession Politics in Africa: Five Decades of Misrule’ edited by Maurice Nyamanga Amutabi and Shadrack Wanjala Nasong'o, Keorapetse, Otlhogile, Dingake, Molomo, Good and Taylor do not fault automatic presidential succession for its unconstitutionalism, but fault it for, inter alia, being undemocratic and a bad model for Africa.   
 

Dr. Molokomme was right when she wrote that “...the important difference between the old section 35(1) and the current one is that while the former provided for the Vice President to perform the functions of the office of President, the current one refers to the Vice President assuming office as the President with immediate effect...”


She continued to say “...Under the current section 35(1) therefore, the Vice President becomes the substantive President, unlike the earlier provision which simply gave him authority to perform the functions of that office until a new President assumes office”
For purposes of refreshing our memory, the old section 35(1), which was repealed by the Constitution (Amendment) Act No. 16 of 1997, provided that “If the office of President is vacant, the Vice President shall, subject to the provisions of this section, perform the functions of the office of President until such time as a new President assumes office in accordance with this section or section 32 of this Constitution.”


This is the section which provided for the Vice President to assume office temporarily, but that section is no more, it having been repealed and its successor, section 35(1), not having been declared invalid by a competent court of law. Should there be litigation on section 35(1) the purposive rule of statutory interpretation will guide our courts. In interpretation the section, our courts would, over and above using the literal, mischief and golden rules of interpretation, consider the purpose for repealing the former section 35(1) and replacing it with the present.


That purpose is found in the Memorandum to the Bill (no 24 of 1996) which states, inter alia, that “...Clause 3 proposes to amend section 35 to provide for an automatic assumption of office of President by the Vice President in the event of the death or resignation of the President.” It is suggested that section 35(3) be repealed. It is not understandable why more than ten years since Dr. Molokomme commented on the need for such repeal, the section still lies in our constitution.


It is also suggested that those who strongly believe that automatic succession does not exist in our constitution or that it is unconstitutional take the matter to court so that it is settled once and for all to avoid the matter resurfacing every time a Vice President automatically ascends to the presidency.

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