Two legal minds of the Botswana People’s Party have hinted at the possibility of the party challenging the constitutionality of the special nomination provision.
Former High Court Judge, Justice John Mosojane who is also a former BPP secretary general and former BPP legal advisor, Gabriel Komboni has expressed doubts that the special nomination system is constitutional.
After the general elections just over a month ago, Local Government minister Slumber Tsogwane issued Statutory Instrument No. 135 of 2014 for the establishment of Francistown Town Council through which five Botswana Democratic Party members were nominated to FCC. A similar instrument was issued for the establishment of the Gaborone City Council where six members were nominated. This, according to Justice Mosojane is a departure from what has obtained for the past 30 years.
In fact, it is a reversal to the pre-1984 period. Since the 1989 general election, it has been the practice that the party that gained majority councillors in a particular constituency in a general election nominates one more councillor in that particular constituency. The number of specially elected councillors in any town or city council therefore equalled the number of constituencies. The change did not come without a struggle. At the 1984 general elections the opposition BPP won seven seats while the ruling BDP became a minority with the remaining four in Francistown. As had been the custom the BDP moved swiftly and nominated four more councillors to the Francistown Town Council (FTC) while denying the BPP the same privilege. This cancelled the BPP’s majority status as the ruling party then had a total of eight councillors thereby denying the BPP the right to provide the town mayor as the party had been reduced to a minority party by the Minister.
Although this had apparently happened in all the previous elections without anybody protesting, the BPP decided it would put a stop to what it considered an incongruent and anti-democratic practice. Led by Dr Knight Maripe and former High Court judge, Justice John Mosojane, who were president and secretary general respectively, the BPP staged massive mass demonstrations in Francistown demanding that, if the special nomination practice was not discontinued, at least the will of the people, with respect to which party is the majority be respected. Meanwhile, the BPP leadership put pressure on the then Head of State, Sir Ketumile Masire and the then Minister of Local Government and Lands, Lesedi Mothibamele, whose mandate it was to nominate councillors. “Mothibamele called and talked to me. As BPP, we wanted the whole thing scrapped but the BDP would not agree,” reminisced Justice Mosojane in an interview recently. Uncomfortable with withdrawing the nomination of the four party functionaries, the Minister conceded by allowing the BPP to nominate from among themselves four people to the FTC.
Immediately, the Botswana National Front (BNF) which had similarly been short-changed in Gaborone demanded similar treatment to that of the BPP. For the first time in the history of our democracy, both the Francistown and Gaborone town councils were led by opposition mayors! In Justice Mosojane’s view, the practice is clearly undemocratic because it is motivated by pure political greed on the part of the ruling BDP. “After all, none of the personnel so nominated has any specialised skill to offer to the council to which they have been nominated. All of them are mere political functionaries who have been nominated to be paid out of the public coffer while they continue to organise for their political party for the next election. This happens all the time at the end of each general election yet it is so manifestly unjust. It is tantamount to openly stealing from public funds. It is a dreadful abuse of power. We nearly stopped it in 1984. We did not do enough I suppose,” reflected the former BPP secretary general.
Justice Mosojane doubts that the special nomination dispensation is constitutional. “I am aware of the Local Government Act that authorises these nominations but I am not aware of its constitutional basis,” said Justice Mosojane. While the Constitution of the Republic of Botswana clearly stipulates that after an election, the President may nominate four individuals to parliament, no similar provision with respect to councillors exists in the same constitution. Gabriel Komboni, a legal practitioner in Francistown, is not surprised that the constitution says nothing about nominations. In his view, because the Constitution does not make provision for the establishment of Local government structures and the election of Councillors, nomination of Councillors is not strictly constitutional.
“These are created by the Local Government Act which gives the Minister of Local Government powers over councils including the issuance of an election writ to Councils and the power to appoint special elected Councillors while in respect of Parliamentary elections, the constitution gives the President the power to issue the election writ,” Komboni stated. He is however, not at ease with the absence of guidelines for the Minister on how such power of appointing specially elected councillors is to be exercised. “There is nothing in the law that guides the Minister as to what considerations he has to take into account when making such appointments. There is nothing that says he should take into account issues of gender balance, youth, disabled persons, special skills, popular vote of political parties or such like,” explained Komboni who added that the Minister is at large with respect to who may be appointed. The absence of guidelines according to Komboni, at best leaves the Minister at his own designs while at worst, he is a prisoner of political interests.
The lawyer does not rule out “other personal considerations” in the nomination of specially elected councillors. Former Minister of Local Government, Margaret Nasha who headed the ministry for a total of 12 years albeit on an on and off basis, agrees with both Justice Mosojane and Komboni that there is a need for an explicit guideline with respect to nomination of people both to council and Parliament. “Because nothing exists in the form of guidelines, the Minister is bound to nominate people even when it is clear they have got no special skills to offer. In Botswana, we do not seem to want to stipulate things and avoid doubt. We need to write down those guidelines,” she said amid laughter and friendly protest that journalists should leave her alone so that she stays out of trouble. Historically, the relevant Minister brought into parliament people with rare skills which skills might not be available among the elected representatives.
“In theory, after forming council, the Minister looks around to see what skills are lacking and appoints accordingly. Having said that, I doubt if, in this day and age, this country still needs such provisions,” she added. The special elections provision was also intended to recognise marginalised groups by nominating from among their numbers. But so discredited is the system of special nominations that, allegations abound that some people were nominated on the basis that they were romantically involved with those in the echelons of power. Out of the 119 nominated councillors, Minister Slumber Tsogwane nominated only three from the opposition disregarding the Opposition’s over 50% popular vote.