banner_9.jpg
banner_274.jpg
Home » Columns » The implications of s.35 (3) of the Constitution on automatic presidential succession and retention

The implications of s.35 (3) of the Constitution on automatic presidential succession and retention

Publishing Date : 24 April, 2018

Ndulamo Anthony Morima
EAGLE WATCH


When the debate around automatic presidential succession started some, including attorneys Dick Bayford and Lediretse Molake, argued that automatic presidential succession as currently practiced in Botswana is unconstitutional.



In my view, this argument cannot be sustained because automatic presidential succession is provided for in terms of section 35(1) of the Constitution which reads: “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.”


As argued earlier, when a president ceases to hold office in terms of section 35(1) no vacancy exists since the Vice President succeeds him by operation of section 35(1) and such succession is automatic, instant and simultaneous. I, therefore, disagree with Advocate Sidney Pilane’s assertion in Sunday Standard of 6th April 2008 that ... “it is clear that the succeeding Vice President assumes office upon subscribing the oath of office, but it is unclear when precisely the retiring President ceases to hold office in terms of section 35(1)”.


The outgoing President ceases to hold office immediately he dies, resigns or ceases to hold office. The section 35(1) President assumes office immediately the outgoing President dies, resigns or ceases to hold office. The subscription to the Oath of Office, in terms of section 37 of the Constitution, does not appoint the President; it allows him to enter upon the duties of that office, him having already, by operation of law, assumed the office.


Automatic presidential succession was ushered in by amending, through the Constitution (Amendment) Act No. 16 of 1997, the predecessor to section 35(1) which 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.”


Therefore, when a president dies, resigns or ceases to hold office section 35(4) is not applicable since no vacancy exists. section 35(4) reads: “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...”


But, another debate continues, namely that though automatic presidential succession may be constitutional in terms of section 35(1), such presidency is interim because of section 35(3) of the Constitution which limits a section 35(1) President’s powers to that of a de facto Acting President. 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 argument is that since a section 35(1) President has limited powers he can only be an interim President, especially that the powers he is proscribed from exercising are so cardinal that a President who is not vested with such powers can only be an interim one.
A question has been asked: If a President remains as a section 35(1) President who cannot dissolve Parliament, who will dissolve Parliament when the need arises, for instance at the end of a Parliament’s term in preparation for the general elections?


Another question has been asked: If a President remains as a section 35(1) President who cannot revoke the appointment of the Vice President, who will revoke the appointment of Vice President when the need arises for instance when the Vice President fails to uphold and defend the Constitution?


The argument is that it cannot have been the intention of the drafters of our Constitution to have a permanent President with limited powers, the result being that the country can be plunged into a constitutional crisis as a result of the President’s inability to exercise such powers. The question is: was it necessary to retain section 35(3) as it is after amending section 35(1) which engendered automatic succession of a President with full powers? In my view it was not. The section should have been amended to refer only to a section 35(2) interim President appointed by Cabinet.


The former Attorney General, Dr. Athalia Molokomme, in a statement published in the Botswana Daily News of 1st April 2008, conceded that because section 35(1) puts in place a substantive President, section 35(3) should have been amended by the removal of the reference to subsection (1). She also opined that not amending section 35(3) by the removal of the reference to subsection (1) is a minor drafting oversight which has no material consequence on the validity of the automatic succession constitutional provision. We will return to this point later.


According to Advocate Pilane “...there was a mistake when amending the Constitution to introduce automatic succession in that while section 35(1) was amended properly, an omission was made in not excluding the application of section 35(3) to section 35(1) (as amended)”. It is his view that whereas before the amendment of section 35(1) section 35(3) properly applied to both sections 35(1) and 35(2), the amendment necessarily excluded the application of section 35(3) to the amended section 35(1).


In his view, what ought to have been done was that, in addition to amending section 35(1), the number and word “…(1) or…” at section 35(3) should have been deleted. The resulting section 35(3) should have read:
“Any person performing the functions of the office of President by virtue of subsection (2) of this section shall not exercise the powers of the President to revoke the appointment of the Vice President or to dissolve Parliament”.


I agree with Advocate Pilane that the amended section 35(1) could not co-exist with an un-amended Section 35(3), but disagree with him that with such co-existence automatic succession would not have been achieved. I also agree with Advocate Pilane that it cannot have been, nor was it Parliament’s intention to make the amended section 35(1) subject to section 35(3).We now return to the question whether not amending section 35(3) by removing the reference to subsection (1) is a minor drafting oversight which has no material consequence on the validity of the automatic succession constitutional provision.


The question is: does section 35(1), alone, suffice to engender automatic presidential succession? Put differently, can a Vice President automatically succeed the outgoing president on the basis of section 35(1) alone without the invocation of section 35(3)? In my view, section 35(1), alone, suffices to engender automatic presidential succession without the invocation of section 35(3). It is worth noting that whereas the old section 35(1) was expressly made subject to sections 35(3), 35(4), 35(5), and 35(6), the current section 35(1) is not made subject to any of the provisions of section 35, or any other provision.


Therefore, the reference to subsection (1) at section 35(3) has no material consequence on the validity of the automatic succession constitutional provision. That notwithstanding, section 35(3) should be amended to read as Advocate Pilane suggests. But, the question is: to the extent section 35(3) is still part of the Constitution, is a section 35(1) President competent to continue in office despite the fact that he has no power to revoke the appointment of the Vice President or to dissolve Parliament?


With respect to the inability to revoke the appointment of the Vice President a further question is: can one’s position be made interim by the fact that he or she is incapable of performing a prospective, yet non-obligatory function? There is a view that this cannot be a ground for declaring one an interim office bearer because the President is not obliged to revoke the appointment of the Vice President. He can, therefore, serve his entire term without exercising such power without offending the Constitution, it is argued.


But what about a situation where the Vice President becomes so incapable of upholding and defending the Constitution that if the President fails to revoke his appointment he will himself be failing to uphold and defend the Constitution thereby violating his Oath of Office?
Resort can be had to section 39(2) of the Constitution. It provides that “...the Vice President shall continue in office until a person elected at the next election of President under section 32 or 35 of this Constitution assumes office provided that the office of Vice President shall become vacant- (i) if the appointment of the holder of the office is revoked by the President; or (ii) if the holder of the office ceases to be a Member of the National Assembly for any other reason than dissolution of Parliament.


A section 35(1) President can, therefore, if it becomes compelling that the Vice President be removed from office, use section 39(2)(ii) and cause, through political maneuver, the Vice President’s Parliamentary seat to be vacant in terms of section 68(1) (b) and (2) which will make the Vice President’s office vacant. With respect to the inability to dissolve Parliament the question is: can one’s position be made interim by the fact that he or she is incapable of performing a prospective but inevitable and obligatory function?



It is unavoidable that every President has to dissolve Parliament, especially after its term ends and in preparation for the general elections. Therefore, to the extent a section 35(1) President, by virtue of section 35(3) as it currently is, lacks the power to dissolve Parliament the continuation of his presidency can legitimately be questioned. This is especially true because unlike with the revocation of the appointment of the Vice President there is no way Parliament can be dissolved other than by the President. This makes the need for amending section 35(3) as proposed above compelling.


The final question is: what are the implications for the presidency before and/or without the amendment of section 35(3)? In my view, a court action, as has been threatened, to declare the office of President vacant is unlikely to succeed. This is because in interpreting sections 35(1) and 35(3) and any other relevant clause of the Constitution, our courts, are likely to be persuaded that in amending section 35(1) Parliament not only intended to engender automatic presidential succession, but also did not intend that the section 35(1) President be interim or temporary.


This they will do guided by section 27 of the Interpretation Act which provides that “In the construction of an enactment, an interpretation which would render the enactment ineffective shall be disregarded in favour of an interpretation which will enable it to have effect”. This they will do also guided by Section 26 of the Interpretation Act which provides that
“Every enactment shall be deemed remedial and for the public good, and shall receive such fair and liberal construction as will best attain its objects according to its true intent and spirit”.


Section 35(1)’s true intent and spirit 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.” The mischiefs that Parliament sought to cure were the lack of automatic presidential succession and the temporary President espoused in the former section 35(1). This, the court is likely to give effect.



If it is held that the amendment inadvertently failed to so do, the worst that the courts can do, in deference to the doctrine of separation of powers, is to find for the applicants, but suspend the Order and give Parliament a timeframe within which it should amend the irredeemable constitutional provisions, if any.

Cartoon

Polls

Do you think the closure of BCL will compel SPEDU to double their efforts in creating job opportunities in the Selibe Phikwe?

banner_14.jpg
banner_12.jpg

POPULER BRANDS