Botswana Constitutional Review Process – 27 January 2022

We, the undersigned organisations and individuals, urge the government of Botswana to ensure that the Constitutional Review process is inclusive, participatory, transparent and fair for the following reasons:                       

CONTEXT                                                                                                           

On 17 December 2021, His Excellency President Dr Mokgweetsi Eric Keabetswe Masisi appointed a Presidential Commission of Inquiry into the review of the Constitution of Botswana[1]. The Commission is set to ‘ascertain from the people of Botswana, their views on the operation of the Constitution… assess the adequacy of the Constitution… articulate the concerns of the people of Botswana as regards the amendments that may be required for a review of the Constitution… to conduct inquiries and obtain information from sources that the Commission considers relevant in the execution of its mandate, to make any recommendations on the review or amendment of the Constitution… and upon completion of its inquiry, the Commission shall submit a report with recommendations to the President not later than the end of September 2022’[2].

 

According to the Commissions of Inquiry Act of 1962, Section 2, it is lawful for the President to issue a commission whenever he deems it advisable. Section 8 of the Commissions of Inquiry Act of 1962 states that ‘It shall be the duty of the commissioners…to make a full, faithful and impartial inquiry into the matter specified in such commission…and in due course report to the President in writing the results of such inquiry[3]…’. Section 5 of the Commissions of Inquiry Act states that ‘In case any commissioner is unable or unwilling to act, or dies, the President may appoint another commissioner in his place; and any commission issued under this act may be altered as the President may deem fit by any subsequent commission issued by the President, or may be revoked altogether by the President’[4]. 

CONSULTATION, PARTICIPATION AND INCLUSION

The Constitution is the supreme law of the land. The people should be consulted and actively participate in the process of the Constitutional review. This is because whatever is written in the Constitution will affect them. Political will should enable effective public participation for the people to freely fashion a Constitution of their choice. The constitution-making process should be effected using a ‘bottom-up’ approach to ensure inclusion, participation, accountability and fairness. All these are necessary for democratic governance to thrive. Representatives of different sectors, including religious bodies and interest groups in the country should be involved to avoid exclusion of already marginalised groups, including indigenous peoples, youth, persons with disabilities, ex-miners, children, women, workers, LGBTQI+ community, domestic and farm workers and the elderly. It is clear that ‘a constitutional review offers us an opportunity to commit again, to entrenching democracy, good, transparent and accountable governance, and the rule of law; to reaffirm our faith in a consultative polity that believes in free speech and other fundamental human rights and the values of openness, fairness, honesty, human dignity, tolerance and hard work’[5]. These must be present as guiding principles throughout the review process – from start to finish.

 

TRANSPARENCY AND ACCOUNTABILITY

Our concerns with the process which has already begun are lack of transparency and accountability; lack of information about the Constitutional Review process itself; lack of consultations with our elected representatives and Dikgosi; and the lack of information about the inclusion of civil society. There has been no transparency about the criteria used for selecting the members of the Constitution Review Committee. The list of members was made public on 17 December 2021. We believe there should have been transparent consultations with all of our elected representatives in Parliament, regardless of their political party affiliation, about the process to be followed for the review including the selection criteria for the members of the Committee. The Committee members should include those with knowledge about the basic principles of constitutional law such as human rights, the rule of law and separation of powers. This is because these are core to the effective functioning of our democracy.

The Presidential Commission of Inquiry into the review of the Constitution should report to an inclusive, select committee of parliament and not exclusively to the President, to ensure transparency and accountability to the people.

INFORMATION-SHARING

There is a lack of information about the planned process of reviewing the Constitution. This information about the planned process is necessary to enable public preparedness to participate meaningfully in this process.

There is also a lack of information about the reasons why the format of a Presidential Commission of Inquiry was adopted and not a Parliamentary Committee tasked with this responsibility. In light of these concerns, we urge the Botswana government to ensure that the Constitutional review process is inclusive and fair.

CONCLUSION

There is a clear need for civic education about the content of the current Constitution for this Constitutional consultation process to be successful. Public education will facilitate informed participation for people to know what needs to be changed and what needs to be included in the reviewed constitution, while taking into consideration their way of life and human rights. We urge the government to ensure that the reviewed Constitution reaffirms separation of powers, enables checks and balances for the benefit of all people in Botswana, to prevent arbitrary and abusive use of power by those in authority; and protects and respects the political, socio-cultural and economic rights and dignity of every person – guided by our value principle of ‘botho’.

UPR NGO WORKING GROUP

·         Botswana Council of Non – Governmental Organisations (BOCONGO)

·         DITSHWANELO – The Botswana Centre for Human Rights

·         Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo)

·         Letloa Trust

·         Media Institute of Southern Africa (MISA)

·         Rainbow Identity Association (RIA)

[1] BWgovernment (17 December 2021) https://www.facebook.com/148228411926492/posts/4666255936790361 Accessed: 17 January 2022
[2] https://www.mmegi.bw/news/masisi-appoints-commission-of-inquiry-on-constitutional-review/news Accessed: 18 January 2022
[3] LAWS OF BOTSWANA. Volume 1, CHAPTER 05:02. COMMISSIONS OF INQUIRY ACT (1962)
[4] LAWS OF BOTSWANA. Volume 1, CHAPTER 05:02. COMMISSIONS OF INQUIRY ACT (1962)
 

[5] Professor Oagile Bethuel Key Dingake (Wednesday 26 May 2021)  https://www.mmegi.bw/opinion-analysis/the-art-of-constitution-making-an-over-view/news Accessed: 17 January 2022

 

For more information please contact: UPR NGO Working Group. Tel: +267 3906998; Cell: 73393220 / 74956913 (whatsapp), Fax: +267 3907778; Email: admin.ditshwanelo@info.bw