The ascendency of Mokgweetsi Masisi to the highest office of President of the republic has triggered an old argument on whether it is constitutional for a vice president to automatically take office and enjoy sweeping powers, or if he needs to first be elected by parliament.
The same argument was raised by political commentators in 2008 and Advocate Sidney Pilane, then special advisor to former President Festus Mogae successfully tackled the issue.
But since Masisi’s inauguration social media has been active with different interpretations offered by many lawyers including initiator of the discussion Tshiamo Rantao as well as Kgosi Ngakaagae and Jao Salbany.
But the Attorney General Araham Keetshabe has remained unshaken stating that the constitution is clear. He is supported by some attorneys who specialise in negotiating and drafting.
But to remove the ambiguity, some say Section 35 subsection 3 and 4 could be amended just to clear and not leave it to speculation.
But Rantao says the matter raises other constitutional issues such as “vacancy in office of President” as provided for in section 35 of the Constitution. “This issue was once in the public domain about 10 years ago, but there was no resolution since it was never taken to court for a determination,” he said.
After much soul searching and prompted by a passion for “rule of law,” Rantao now offers his considered viewpoint.
Hope on Masisi
“I think that Masisi has given many Batswana renewed hope in our nation. I certainly have renewed hope that he shall govern this country in a better way than his predecessor. If my interpretation of section 35 be correct, I have no doubt that he would still win a National Assembly election held under section 35(4) of the Constitution”.
However, this does not make the holding of such an election an academic exercise. It cannot be merely academic to comply with the Constitution of the land. “Failure to comply could result in his assumption of office being declared unconstitutional and set aside by our courts,” he warns.
Section 35 of the Constitution contains 7 subsections. None of these subsections can be construed in isolation, says Rantao. As a rule, all the provisions in the constitutions should be construed together, not in isolation. Section 35(1) of the Constitution was introduced by way of a 1997 amendment. It reads: “Whenever the President dies resigns or ceases to hold office, the Vice-President shall assume office as President with effect from the date of the death, resignation or ceasing to be President.” This provision is clear and unambiguous, says Rantao, adding, “we all know what it means that the Vice President takes over, as President Masisi did on 1 April 2018 because President Khama ceased to hold office on 31 March 2018”.
The million dollar question is, is this assumption of office temporary or not? Rantao is convinced it is temporary. He cites Section 35(2) of the Constitution, which provides that if the office of President “becomes vacant in circumstances in which there is no Vice-President or is vacant whilst the Vice-President is absent from Botswana or is, by reason of physical or mental infirmity unable to perform the functions of his or her office” the functions of the office of President shall be temporarily performed by such Minister as Cabinet shall appoint “until such time as a new President assumes office in accordance with (section 35) or section 32 of the Constitution”.
Rantao says quite clearly, this subsection is not of moment because when Khama ceased to hold office, “we had a Vice-President who assumed