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Parliament of Botswana: With Powers, but Without Powers

Publishing Date : 18 February, 2020

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Oversight is important in a democracy, in organisations, in companies and especially in government. The biggest body/institution to exercise this role in a democracy is normally the National Assembly with its various Parliamentary Portfolio Committees.

The question is, does our Parliament play an oversight role, and is it given this role by the Constitution? Our constitution is not explicit about oversight, as much as it is about the legislative powers enshrined. Chapter 7 of the Constitution of Botswana, Sections 57 – 94 establish the Parliament of Botswana which shall consist of the President and a National Assembly. As we all know, only a few gentlemen were sent to Great Britain to meet with the ‘consultants’ who drafted Britain’s Protectorate’ constitution, so we did not have Members of Parliament then to draft one.

Tota people who push for Constitutional review ga ba itire. So, who is the Parliament and what is the Parliament, according to our Constitution? What are the qualifications to become a Member of Parliament, or rather what disqualifies one?
Enshrined in Section 62 of the Botswana Constitution: Disqualifications for membership of National Assembly   

(1) No person shall be qualified to be elected as a Member of the National Assembly who—  

(a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state;  

(b) has been declared insolvent or adjudged or otherwise declared bankrupt under any law for the time being in force in Botswana and has not been discharged, or has made a composition with his creditors and has not paid his debts in full;  

(c) is certified to be insane or otherwise adjudged or declared to be of unsound mind under any law for the time being in force in Botswana;  

(d) is a Member of the House of Chiefs;  

(e) subject to such exceptions as may be prescribed by Parliament, holds any public office, or is acting in any public office by virtue of a contract of service expressed to continue for a period exceeding six months;

S.I. 119/1993. (f) is under sentence of death imposed on him by a court in any part of the Commonwealth, or is under a sentence of imprisonment (by whatever name called) exceeding six months imposed on him by such a court or substituted by competent authority for some other sentence imposed on him by such a court;  

(g) Holds, or is acting in, any office the functions of which involve any responsibility for, or in connection with, the conduct of any elections to the Assembly or the compilation or revision of any electoral register for the purposes of such elections.

(2) Parliament may provide that a person shall not be qualified for election to the National Assembly for such period (not exceeding five years) as may be prescribed if he is convicted of any such offence connected with elections to the Assembly as may be prescribed.

Ee tota go ne go ka nna maswe if our MPs were found guilty of offences connected with elections, they really needed to amend the Electoral Act, and retrospectively effect it.  Political will is such a powerful thing.

Powers of Parliament (ss 86-89)

[Ch0000s86] 86. Legislative powers 
Subject to the provisions of this Constitution, Parliament shall have power to make laws for the peace, order and good government of Botswana.
 [Ch0000s87] 87. Mode of exercising legislative powers   

Subject to the provisions of section 89(4) of the Constitution the power of Parliament to make laws shall be exercised by Bills passed by the National Assembly, after reference in the cases specified in section 88(2) of this Constitution to the House of Chiefs, and assented to by the President.  

(2) When a Bill is presented to the President for assent he shall either assent or withhold his assent.  
Wouldn’t it be interesting to know the reasons for withholding an assent of a Bill by our Presidents? To know the intention and purpose for their withholding and how it was in the public interest. One would assume that a Bill passed by MPs would be in the public interest and constitutional right, especially knowing the time it can take to have the Bill returned to the National Assembly.

(3) Where the President withholds his assent to a Bill, the Bill shall be returned to the National Assembly.  

(4) If where the President withholds his assent to a Bill the Assembly resolves within six months of the Bill being returned to it that the Bill should again be presented for assent, the President shall assent to the Bill within 21 days of its being again presented to him, unless he sooner dissolves Parliament.  

(5) When a Bill that has been duly passed and presented for assent is assented to in accordance with the provisions of this Constitution it shall become law and the President shall thereupon cause it to be published in the Gazette as a law.  

(6) No law made by Parliament shall come into operation until it has been published in the Gazette, but Parliament may postpone the coming into operation of any such law and may make laws with retrospective effect.  

So, go dira molao, and backdate it is constitutional. Meaning, our MPs if serious about certain issues of concern, can enact laws and ensure they cover certain periods to benefit citizens. Our Parliamentarians have the power to change laws and make them beneficial to citizens, but why don’t they? The 2/3 majority holds the country at ransom on particular areas of our lives, why?

If our MPs wanted their powers to be extended, it is up to them to push for review of the supreme law, to enact laws that would ensure their powers go beyond just legislation, and charter into exercising oversight and good governance of public affairs. The amendment of the Electoral Act, December 2019, demonstrates how political will can be used to put in place laws by MPs to benefit themselves.

However, can we now start working for Batswana, and enact laws that benefit citizens, by strengthening Parliament and giving more powers to oversee truly the Executive, the Judiciary and any other body operating in the interest of the public. Otherwise, Parliament is a just powerful body, without powers.