Constitutionalism, Rule of Law and Governance: The Case of Botswana

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BACKGROUND ON BOTSWANA
Botswana is internationally acclaimed for good governance and economic prosperity. In the literature, it is clear that Botswana stands out in SADC, the region, and globally, as a country that has experienced remarkable consistent growth.1Botswana is thus described as Africas best kept secret. It is a former British Protectorate located in southern Africa; sharing the border with South Africa, Zimbabwe, Namibia and Zambia. It gained political independence from Britain in 1966, and has a population of roughly two million people as of 2011. About sixty per cent of this population is youthful. The word youth in Botswana refers to those aged between 15 and 35 years old as per the Revised National Youth Policy of 2010. Nonetheless, some government programmes/schemes geared towards empowering the youth do not necessarily and strictly follow the 15 to 35 years bracket: for instance the Young Farmers Fund. Geographically, Botswana is the same size with France or Kenya, or slightly smaller than Texas. At independence, Botswana was amongst the poorest countries in the world next to Bangladesh, with a Gross Domestic Product (GDP) of a paltry 80US$. Its economy relied heavily on the cattle industry and remittances from the mine workers working in the South African (gold) mines. Totally dependent on South Africa and foreign aid, mainly from Britain, Botswana was considered worthless to invest in. It had no known minerals then. In fact, the diamonds were discovered few months after independence. As of 2013, Botswanas purchasing power parity (PPP) is 26,000US$, and it boosts of a healthy foreign reserves. Between 1966 and 1996, Botswana experienced a rapid and uninterrupted annual economic growth rate of 9.2 per cent averaging 8.2 per cent. This is a sharp contrast to the economic stagnation and deterioration of most of Africa.2 Having transformed itself from a poorest country at independence to a Middle-Income Country within three decades, Botswana remains one of Africas success stories or an economic miracle. Sound institutions and good political leadership are credited for Botswanas success. Its economic fortunes took a dramatic turn when considerable diamond deposits were discovered, first in Orapa in 1967, and later in Jwaneng in 1982. Today, Botswana is the leading producer of diamonds by value in the whole world. Thus, the growth of Botswanas economy was and is mainly driven by diamond which contributes about 30% to the GDP and about 80% of the total government revenue. The 2013 Human Development Index Report ranks Botswana amongst the top African countries. Further, recently the African Leadership Index ranked President Lieutenant General Seretse Khama Ian Khama the best leader in Africa, getting an A grade. Botswana was placed 1st in Africa and 41st in the world in good governance, while emerging 32nd out of 162 countries in the most peaceful Index. Despite the infamous Mass Media Act, which, if fully implemented, would curtail both freedom of press and speech, Batswana generally enjoy these freedoms. Batswana are not persecuted for criticising government. All religions practice their faiths without censor. The Constitution of Botswana guarantees freedom of expression. Under the Governance sub Index, which measures effective and accountable government, fair elections, political participation and the rule of law, Botswana has fared well too. Since 1966, Botswana has been holding regular free elections. Nonetheless, since independence, only one party has been in power: Botswana Democratic Party (BDP). The fact that the same party has been ruling has prompted some scholars to call Botswana a de factoone party state meaning that the democratic input has been weak. No political party has ever been banned and Botswana has no political prisoners. However, Botswana needs to deepen and consolidate its democracy. Some of the areas that Botswana should improve or implement, include, amongst others, political party funding; direct presidential elections; the abolition of Specially Elected Parliamentarians and Councilors; fair delimitation of constituencies, respect for trade unions, increased representation in governance by women, the youth and other marginalised groups etc. There is access to justice and the judiciary is independent. However, some commentators feel that the rule of law in Botswana is slowly being threatened by what they term politically motivated presidential pardons, and the occasional disregard for procedural propriety by the Directorate on Public Service Management especially in relation to trade unions.

Clover, J. Botswana: Future Prospects and the Need for Broad -based Development. Institute for Security Studies, African Security Analysis Programme, p.1 2 Hope Sr. K. R. 1998. Development Policy and Economic Performance in Botswana: Lessons for the Transition Economies in sub-Saharan Africa. Journal of International Development, 10, 539-54.

Politics in Botswana
In the 1960s, when Batswana demanded political independence from Britain, many, including the British, thought of them as either very brave or very foolish writes the second president of Botswana Sir Ketumile Masire (1980-1998) in his memoir. In fact, Botswana has maintained the longest liberal democracy and multiparty system in sub-Saharan Africa. She practices a parliamentary democracy system. The Members of Parliament (MPs) and District Councils are elected through first-past-the-post system. She has a two-tier system of government (central and local government). The two mutually depend on each other. The Botswana Democratic Party (BDP) has been in power since 1966. It won all the elections with landslide victory. Botswana upholds the rule of law and respects human rights to a larger extent. Out of 176 countries, Botswana ranks 30 on the 2012 Corruption Perceptions Index. This differentiates it from many African nations where human rights are grossly violated with impunity. Botswanas admirable achievements in a generally unstable continent have earned it accolades. For example, she is dubbed a shining liberal democracy. These are attributed to visionary leadership, fiscal discipline and the prudent management of the diamond wealth. Though Botswana has achieved a lot, 41% of the youths are unemployed, and many are infected and affected by the HIV and AIDS. The plight facing the Botswana youth is a sharp contrast to the envied image of Botswana, a country internationally defined as an economic miracle or the Switzerland of Africa. Political parties in Botswana number less than 10. The president of the country is nominated from the presidential candidate whose party wins most seats in the general elections. Of recent, many Batswana, including the consultation we held, feel that the president should be directly elected. However, the government contends that the current system works well for the country. In the last elections held in 2009, the BDP won majority seats (49 seats) out of 60 seats in total. The Botswana National Front (BNF), a major opposition party, won 5 seats, followed by the joint bid of the Botswana Congress Party (BCP) and the Botswana Alliance Movement (BAM) with 5 seats, and for the first time in the history of Botswana politics 1 independent seat .3 Some commentators in the newspapers, especially those from the academia, argue that all political players in Botswana should advocate for electoral reforms. Dithapelo Keorapetse, a University of Botswana political scientist, argue that The idea for reforms should be to improve the responsiveness of electoral processes to public wishes and expectations. He goes on to say that the last major reforms were done in 1997 after a referendum. Thus, Some changes in 1997 such as automatic succession of the Vice President upon death, retirement or resignation of the President were detrimental. Given the fact that Botswana has an executive President with extensive powers of control and influence, this is a compelling reason for the President to be popularly elected, contends Keorapetse. 4 The Independent Electoral Commission (IEC) should be removed from the Office of the President as this tarnishes its independence. For the consultations on the 29th October 2013, the team conducted an online survey to get young peoples perspectives, views, perceptions, and insights on the state of the country regarding constitutionalism and the rule of law. The survey aimed to establish the level of satisfaction with Botswanas Constitution and the state of democracy. Young people were invited through the social media to participate. The survey was open for 14 days, and 121 participated. We opened a Facebook page and engaged on the discussions with the youth. Of the 121, 68 were males while 53 were females. Most of the young people who participated were over the age of 30 years while 31% were between the ages of 27 and 30. The young people between the ages of 15 and 20 participated in very small numbers. Most of the participants were belonging to NGOs while only a few indicated that they were not aligned to any organisation. The participation is impressive in the sense that the youth in Botswana are defined as those aged between 15 and 35. We thus captured the age bracket. Of the 121, 53% of the respondents indicated that they were not entirely happy with the Constitution while 19% said they were not familiar with the document. Some of the respondents who expressed satisfaction with the Constitution mentioned that it promoted tranquility and democracy. Below are some of the reasons that were given for not supporting the current Constitution: 1. 2. 3. Its too old and we inherited it from the colonial master thus its not a true reflection of the aspirations of the citizens. It needs a total overhaul to modernize it. I am ok wit it so far but it needs to be revised It ought to be taken to the people for review every now and then, At least every ten years

3 4

Morima, N. A. Botswana is a beacon of democracy, but Sunday Standard, 2013, October 13. Dithapelo, K. Electoral Reforms Imperative for 2014 Elections, 2013, August 8.

4. 5. 6.

It seems to promote restrictions and limitations. Im not happy that it doesnt include socio -economic rights, one cant sue the government for basic provisions such as water. Certain provisions gives a lot [of] power to one person [the president], some human rights of certain sexual minorities needs to be protected and enshrined [sex workers, gays and lesbians]

Sixty out of 121 expressed dissatisfaction with the level of democracy in the country. Thirty-three of the sixty expressed indifference while 23 said they were fine with the level/state of democracy. These are some of the reasons that the respondents gave for their dissatisfaction or otherwise: 1. 2. Well for one Im not happy about the election process of Botswana. Party politics in Botswana are in my view unfair, ruling party has all the funds, other parties are struggling. Party funding needs to be recognized [or] actualized, the pres ident needs to be directly elected by the people, IEC to do more to motivate the youth to vote, state broadcasters need to be turned public so that they are accountable to the public, and not subject to the executive, DCEC [The Directorate on Corruption and Economic Crime] needs more independence to handle high profile cases, women to be given chances and seats at party level for leadership positions, youth parliament to be re-introduced to capture youth issues and concerns at a more formal platform, a ministry of youth to be given to a real youth, introduction of different consultative platforms to be created for exchange of ideas between stakeholders and youth the kgotla system no longer serves as an effective platform especially for youth and even meaningful exchange/dialogues!! The opposition need to actually show Batswana that they are not after money or out to spite the BDP. They need to show genuine care and need for change. Moreover i am not happy because the Presidency rotates in one tribe. I am not happy because people now vote BDP out of obligation or gratitude for Independence instead of making informed decisions about the leader they are electing, people now vote the party not the competence of a person The democracy is there but there are a few things that degrade it such as the death penalty, disregard of minorities such as LGBTs and the fact that electorates do not have the privilege of directly voting for the National President. Batswana in general dont understand government, and governance issues. This is evidenced by the general voter apathy in the young and old. We need political party funding to level the playing ground, we need the national television and radio to be turned into public broadcasters and not the current situation where they are just another government departments. Our office of the Ombudsman needs to be strengthened by firstly, making it an independent office from Office of the President, the Ombudsman has needs to be appointed in a manner similar to that of judges of the High Court where even his/her appointment and dismissal is provided for in legislation that establishes the office. He/she needs to report to parliament and be accountable to it and not to the Office of the President as it is currently. The office should be given prosecuting powers like in South Africa and its recommendations should be binding unlike now where it is mere advice. The office of the Independent Electoral Commission also needs to be Independent, Parliament needs to be also independent from Office of the President, it needs to have its own budget and employ its own stuff. The Auditor General should also be independent from the Office of the President and not be appointed by the president as it was recently done. His appointment should go back to the previous way where he had security of tenure and not work on contract. His/her recommendations should also be binding. There should be a direct election of the president . Presidential powers should also be curbed as they are just too much and could lead to problems in future.

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CONTACT LIST FOR SOME OF THE PARTICIPANTS DURING THE CONSULTATIONS First Name: Bakang Tshipinare Organisation: Student University of Botswana Organisation: Self City/Town: Gaborone City/Town: Gaborone Email Address: nkaoyao@yahoo.com Email Address: tshipinare@yahoo.com Phone Number: 0026772685695 Phone Number: 72582952 First Name: Anderson K. Mello Organisation: Tlhage City/Town: Gaborone Email Address: Sly.tlhage@gmail.com Email Address: sbozah@yahoo.com Phone Number: 72900403 Phone Number: +26772717816 First Name: Jericho Keletso Organisation: University of Botswana Organisation: BOCRA City/Town: Tutume City/Town: Gaborone Email Address: msbhmokgethi@yahoo.com Email Address: keletso@bocra.org.bw Phone Number: 72146188 Phone Number: 00267 3685537 First Name: Kabelo Organisation: University of Botswana Organisation: BOFWA City/Town: Gaborone City/Town: Gaborone Email Address: ombeha@yahoo.com Email Address: kabelop@bofwa.org.bw Phone Number: +267 724 872 30 Phone Number: +26774601609 First Name: Neo Kgotla Organisation: young women leadership Organisation: None City/Town: Gaborone City/Town: Moshupa Email Address: gmanikisa@yahoo.com Email Address: neo.kgotla@yahoo.com Phone Number: 72442295 Phone Number: +267 72201863 First Name: Kefilwe Headman Organisation: UB City/Town: Gaborone Email Address: headmankls@gmail.com Phone Number: +26774493941 First Name: Nolwazi Kaoyao First Name: Thandiwe Majama Organisation: YALDA City/Town: Gaborone Email Address: majamatp@gmail.com Phone Number: 75507619 First Name: Golebaone Manikisa First Name: Othusitse Mbeha First Name: Mariam Mokgethi First Name: Sly Tlhage