Botswana Is In Dire Need Of Effective Checks And Balances On Executive Power

Earlier this morning, the US House of Representatives voted on two articles of impeachment which had been presented by the House Democrats as grounds for the impeachment of incumbent President Donald Trump.

The first article charged Trump with abuse of power for using his executive powers to try to coerce Ukraine into starting an investigation about the affairs of the Democrat presidential nominee Joe Biden in order to create damaging narratives against him. The second article charged him with obstruction of Congress by virtue of him blocking testimony and refusing to provide documents in response to House of Representatives' subpoenas in the impeachment inquiry.

On both charges, the House voted by an overwhelming majority to impeach the president which means that the process now moves to a vote in the US Senate which will then decide whether the articles of impeachment warrant removal of the president from office or not. As evidenced by the aforementioned articles of impeachment brought forward against President Trump, the impeachment process can be used as a way to curb the abuse of power by the Executive, something which is desperately needed in Botswana's constitution.

Like most African countries,  Botswana's hybrid form of governance— in theory— has a separation of powers between the executive, made up of the president and his cabinet, the legislative branch which comprises of the parliament and other legislative bodies as well as the judiciary. The legislative branch is supposed to act as an overlooker of the executive to ensure that it does not abuse its powers whilst the judiciary is supposed to ensure that rule of law applies to everyone including the executive but because of their impotence, this is a far cry from the actual reality.

The Office of the President (OP) wields control over certain overlook bodies which makes it difficult to hold the president accountable should there be evidence of abuse of power on his part. For example, the Directorate on Corruption and Economic Crimes (DCEC), which is responsible for combating corruption and economic crimes, is under direct control of the OP, which means that should the president be accused of these crimes, he can pick and choose how he is to be investigated. In short, he will be in charge of how an investigation against himself is carried out.

Another disturbing example is the fact that the Directorate on Intelligence and Security Services (DISS), Botswana's equivalent of the CIA, is also under the direct supervision of the OP, meaning that he can choose to use the intelligence body to monitor and suppress political opponents to his advantage as evidenced by the details of the case brought before the courts by the Umbrella for Democratic Change as part of their petition against the results of the 2019 general election.

The need for dilution of the powers of the executive in Botswana is not something new and although the previous administration of Khama was the most apparent example of how the branch can abuse power, personal and political imprints on policy matters and governance by incumbent presidents has been an issue since the dawn of the country's independence.

In their 2008 paper titled Parallel Policy Structures In Botswana, scholars Robert Molebatsi and Nelson Sello cite two cases where previous administrations have used their personal or political imprints as motives for implementing policies. The first example is when the first president Sir Seretse Khama used his executive powers in 1972 to accommodate indirect election of the president as well as establishing a requirement that chiefs must retire from chieftaincy for five years before being able to partake in politics, a move which was seen by many as a way of preventing Kgosi Bathoen II from contesting against and defeating Seretse Khama's then-vice president Sir Ketumile Masire which would have forced him to be dropped from vice presidency.

The second case cited in the paper was the then president Masire's decision to implement automatic succession to the presidency from vice presidency in case of the vacancy of the former. This reform allowed the government of the ruling party to have a president who has not been voted for by the people in an election but appointed at the prerogative of the president who had appointed him to the vice presidency position, a situation which is counterintuitive to the very principles of democracy that the country prides itself in having upheld for over half a century.

It should be noted, however, that those previous administrations have not always used the executive powers afforded to them by the constitution to serve their own personal or party interests only. Masire, for example, used those powers to allow a referendum which saw the legal voting age be reduced from 21 to 18, creation of the Independent Electoral Commission as well as allowing a ballot for the diaspora, moves which went a long way in further democratizing the election process.

These seldom cases of executive powers being wielded for good should not take away from the fact that the current structure of the country's constitution can act as an enabler for certain aspects of totalitarianism to flourish as witnessed by the actions of the Khama administration which included amongst others, extrajudicial killings.

During the campaign trail prior to the 2019 general election, there was a lot of talk and promises made to the electorate by the Botswana Democratic Party(BDP), which eventually won the elections, about their intention to review the constitution and dilute the power of the executive as they were also of agreement that the branch wielded too much of it.

Whether these were legit promises or ways to garner votes remains to be seen during the course of their five-year tenure in governance but until the constitution review takes place, the country will remain at the mercy of its incumbent presidents, hoping and wishing that they will use the power vested in them by the constitution for good and not use it to wield authoritarian power over the people that the same constitution is supposed to serve. So much for a democracy.