A Win for the Status Quo: Critiquing the Presidential Commission of Inquiry’s Report on the Review of the Constitution of Botswana

In Botswana, the recently released Commission of Inquiry report makes some modest overtures toward reforms of the executive, legislature, judiciary, independent institutions, and human rights. However, some recommendations are regressive, and others still are not constitutional but in the realm of general law reform. The recommendations, if implemented, would leave the country’s constitutional framework largely untouched, meaning the Constitution would remain generally unresponsive to the needs of the people. Depending on next steps, the report might amount to a missed opportunity for constitutional reform – writes Professor Bonolo Ramadi Dinokopila

Introduction

In December 2021, President Dr Mokgweetsi Masisi appointed a Commission of Inquiry into the review of the country’s Constitution. The Commission was given about nine months to complete its mandate and to submit its findings to the President by the end of September 2022. The Commission completed its task within the stipulated period and duly handed over the Report to the President on 29 September 2022.

The Report of the Presidential Commission of Inquiry into the review of the Constitution of Botswana provides an extensive discussion of the evidence collected by the Commission on the views of Batswana on the review of the Constitution. The Report has four chapters dealing with introductory issues, summary of the evidence and/or submissions from the people of Botswana, strengths and weaknesses of the Constitution and a summary of the recommendations.

The Report indicates that there were extensive consultations across the country with the Commission detailing that it “traversed the length and breadth of the country from the 2nd February 2022 until the 14th July 2022, covering a total of one hundred and thirty-two (132) places in cities, towns, villages and settlements…” (Report of the Presidential Commission of Inquiry, pp. 6–7). Further, the Commission held a total of 132 kgotla (traditional meeting place) and 158 interest group meetings. A total of 28,524 people attended the kgotla meetings. These meetings were broadcast by both the public and private media. The Commission also received submissions through the post and emails.

In the end, and after an analysis of the views of the people, the Commission made a total of 92 recommendations to the President touching on various issues of societal life, including matters affecting all the three arms of government; chieftainship and customary law; culture; the environment; special, vulnerable, unrepresented groups; religion; and other issues such as drugs and substance abuse. A summary of the Commission’s recommendations is provided below, along with suggestions on outstanding issues that should be addressed in the anticipated government white paper that will respond to the Commission’s report and detail next steps.

The Executive and the Legislature

With respect to the executive, despite submissions relating to presidential immunity from prosecution, direct election of the president, and generally reducing the powers vested in the president, the recommendations made by the Commission are nowhere near substantive. None of the recommendations are about the necessary reforms to the excessive powers of the executive. Worse, the recommendations do not provide any possibility of strengthening the country’s legislature to counter these powers. The Commission has thus recommended that the current system of electing the president be retained despite the several voices calling for the direct elections of the president, who is currently indirectly elected by the National Assembly. The Commission should have perhaps recommended that a referendum be held to establish whether the majority of the people are in support of direct election of the president. This is an important issue, and the government white paper should refer this issue for a referendum.

The recommendation on presidential terms limits addresses an issue that continues to undermine democracy and the rule of law in many African countries.

The only notable recommendation in this respect relates to presidential term limits. The Commission has recommended that “…a person who held the Office of the President for an aggregate period of ten (10) years is disqualified from being President, Vice President, Cabinet Minister or Member of Parliament” (Recommendation No. 23, p. 207).  To a certain extent, this recommendation also addresses the issue of extending presidential term limits that continues to undermine democracy and the rule of law in many African countries.

Independent institutions

The Commission has not made any substantive proposals for reforms relating to democracy supporting institutions. One of the few recommendations touching on these institutions is as regards the powers of the Director of Public Prosecutions. The Commission has recommended that Section 51A(1) of the Constitution should be amended to remove administrative supervision of the Director of Public Prosecutions (DPP) by the Attorney General (Recommendation No. 32, p. 210). Further, that Section 51A(6)(b) of the Constitution be amended to remove any obligation on the part of the DPP to consult the Attorney General in the prosecution of cases that are deemed to be of national importance (Recommendation No. 33, p. 210). This is in fact a welcome recommendation considering the importance of prosecutorial discretion and freedom from executive influence.

The Commission has also recommended that a Parliamentary Select Committee on the appointment of Secretary to the Independent Electoral Commission (IEC) be mandated to interview and recommend two names to the President from which to appoint the office holder.  (Recommendation Nos. 36–37, p. 211).

The judiciary

With respect to the judiciary, the Commission made recommendations that appear to be geared towards improving the appointment of members of the judiciary. Under the current Constitution, the Chief Justice and the Judge President of the Court of Appeal are appointed by the President acting alone. To that end, the process of selecting and appointing persons to these two offices is opaque. It is refreshing to note that the Commission has recommended that a Parliamentary Select Committee on the appointment of the Chief Justice and President of the Court of Appeal should be established (Recommendation No. 28, p. 208). Further, the President would nominate and submit three names for either position to the Committee for assessment, interviews, and eventual recommendation of two names to the President from whom to appoint. The Commission also recommended that interviews for appointments to judicial offices be opened to the public (Recommendation No. 28, pp. 208–209). The Commission should have made specific suggestions on the composition of the proposed Select Committee, the absence of which makes this recommendation weak.  While the idea of establishing a Parliamentary Select Committee for appointments to some positions (Chief Justice, Judge President of the Court of Appeal and Secretary to the IEC) seems like an attempt to increase independence of these institutions, it is likely that the Select Committee would be dominated by the ruling party. It is therefore imperative that the government white paper refer to safeguards that would avoid such a defect by recommending a clear articulation of the membership of the Select Committee. Such membership should reflect representation in parliament, and the government white paper may even provide that the Committee be chaired by a member of any of the opposition parties.

The recommendation does not in any manner address or limit the possible extent of executive influence in the appointment of judges . . .

While recommending that the status quo for appointment of Judges of the High Court be maintained, the Commission proposes that the composition of the Judicial Service Commission (JSC) be revised. It has been recommended that in addition to the existing members of the JSC, the revision should see the inclusion of one opposition member of parliament and one member of the ruling party in parliament. Despite the suggested revisions, seven out of the nine members of the JSC are those appointed by the President or the executive (Recommendation No. 29, p. 209). The recommendation does not in any manner address or limit the possible extent of executive influence in the appointment of judges and is clearly not informed by any comparable practice nor international principles relating to the appointment of judicial officers.

Human rights

As was expected, a lot of submissions to the Commission were centered around issues of human rights. The submissions dealt with issues relating to socio-economic rights, the rights of the most vulnerable members of the community, language rights and the rights of sexual minorities. There was an unmistakable demand for a more elaborate and inclusive Bill of Rights. The Commission unfortunately did not see the need to recommend the re-engineering of the Bill of Rights. In the end, only a few socio-economic rights were recommended for inclusion in the revised Constitution. These include the right to health, the right to land, and the right to education (p. 124 & Recommendation No. 10, p. 205) and labour rights (p. 125 & Recommendation No. 12, p. 205).

The Commission has not recommended the inclusion of some socio-economic rights in the Constitution. Instead, it made an alarming conclusive statement to the effect “…that some of the second and third generation rights, though not enshrined in the Constitution, are provided for in subsidiary legislation, and, accordingly, enjoyed by the people of Botswana.” (p. 124). Ironically the country continues to be plagued by a failing education system, inadequate health infrastructure and access to medicines and water shortages.

With respect to the inclusion of substantive protection of specific groups in the Constitution, the Commission has recommended that section 15 of the Constitution should be amended to include intersex and disability as grounds for non-discrimination, and that the rights of persons with disabilities should be enshrined in the Constitution (p. 86 & Recommendation No. 11, p. 205; pp. 171–172 & Recommendation Nos. 65, 67 p. 216–217). It was further recommended that the Constitution should stipulate that for a general election the president must nominate at least one person with a disability out of the president’s six candidates for specially nominated members of parliament (p. 172 & Recommendation No. 66, p. 216). The Commission also recommended that 30% of candidates fielded in local and national elections be women (p. 169).

However, the Commission has recommended that sex work should not be legalised (Recommendation No. 73, p. 217). The Commission summarised the debate as follows: “[c]ontrary views were expressed that commercial sex work is immoral and demeaning to women and that it also exposes women to danger and abuse. Those who held the views made submissions that commercial sex work should not be legalised … The Commission notes these submissions.” (pp. 176–177). There was no attempt by the Commission to reconcile this position with the submission in support of the legalisation of sex work. Further, the same moral argument was not made against the recommendation by the Commission that abortion should be legalized (Recommendation No. 63, p. 216).

The Commission also rejected the submission to guarantee constitutional protection of members of the LGBTIQ+ community. Citing recent decisions on issues of LGBTIQ+ rights, the Commission concluded that members of the community have been able to assert their rights under the existing provisions of the Constitution (pp. 174–175). It is interesting to note that this argument was not raised when the recommendation to constitutionally guarantee non-discrimination for intersex persons was raised and carried.

Opportunity missed?

If the Commission’s recommendations are anything to go by, the country’s constitutional framework remains largely untouched and will remain unresponsive to the needs of Batswana.   

What is clear though is that the Commission did not recommend that the Constitution should be overhauled. Instead, the Commission made recommendations on aspects of the Constitution that required revisions. All in all, the human rights movement came out as the biggest loser in this round of the process. The Commission has not taken heed of the calls made as regards to the constitutional protection of human rights. The Commission has not even paid attention to concluding observations and recommendations made by international monitoring bodies. For example, and despite recommendations following the Universal Periodic Review (UPR) on the need to revise the provisions of the Constitution relating to non-discrimination and customary law, there was no attempt by the Commission to address challenges brought about by the provisions of sections 3 and 15 of the Constitution.

All in all, the human rights movement came out as the biggest loser in this round of the process . . .

Some of the concerning recommendations made by the Commission include the retention of the death penalty, the imposition of the death penalty for “drug lords and drug traffickers”, the death penalty for persons convicted of raping children under 12 years, emasculation of rape repeat offenders, imposition of corporal punishment on women, the outright denial of bail to some accused persons, and withdrawal from the Convention on International Trade in Endangered Species (CITES). It is incumbent upon civil society to lobby government for inclusion of  better reforms in the anticipated government white paper responding to the Commission’s report. Further, once the amendment bill is released, members of civil society should be able to further lobby the national assembly and the people on the need to accept meaningful changes to the country’s constitutional framework.

It should be noted that this Report was rejected by some. Rightly so, because some of these recommendations are beyond the scope of the Commission’s mandate and terms of reference, as previously analysed on ConstitutionNet. In fact, these recommendations can be easily passed off as those of a law reform commission as opposed to a constitutional law review commission. This confusion is because of the failure by the Commission to adopt a sound and ascertainable methodology that draws from the experiences of other jurisdictions. Further, the confused or confusing recommendations confirm that the public did not fully appreciate the nature of the process as there was no civic education that preceded the consultations. Overall, the final product should not be surprising considering that the process was overly rushed. The above notwithstanding, the Report has been accepted by the President. Once the government’s white paper is released, we will be able to establish what the government’s true intention is as regards the constitutional review process. 

Bonolo Ramadi Dinokopila is an Associate Professor in the Department of Law, Faculty of Social Sciences, University of Botswana. 

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Suggested citation: Bonolo Ramadi Dinokopila, ‘A Win for the Status Quo: Critiquing the Presidential Commission of Inquiry’s Report on the Review of the Constitution of Botswana’, ConstitutionNet, International IDEA, 30 January 2023, https://constitutionnet.org/news/win-status-quo-botswana

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