POSITION PAPER ON THE BOTSWANA CONSTITUTIONAL REVIEW EXERCISE

By Botswana Federation of Trade Unions (BFTU) and Botswana Federation of Public Private and Parastatal Sector Unions (BOFEPUSO)

EXECUTIVE SUMMARY

• The modern trend and best practice for many countries formulating or reviewing their constitutions is to ensure that there is buy-in of the people by ensuring that people genuinely participate in the formulation or revision of their constitution. In fact, all over the world people yearn for participation in a document that would have an impact in their lives. How governments respond to these calls may determine whether constitution-making processes unite or further divide their societies.
• Participation means that people must participate in formulating the terms of reference, how long the process must take and on membership of the Constitutional Review Commission.
• There is no blueprint for how to make a constitution, but the last two decades of constitution- making experience underscores the overwhelming importance of inclusive and participatory constitution making process.
• Constitution review process should not be rushed.
• It should be people driven at all stages from conceptualization to referendum stage.
• To finally manage to have a truly people’s constitution, owned by the people, requires that governments spearheading the process must have the political will to carry out a genuine process of civic education and consultations, in which the views of citizens are carefully considered.
• The facilitators of the process must carefully apply guiding principles, such as transparency and inclusion, and ensure that sufficient time and resources are allocated to the process. A nationwide participatory process must be well managed to avoid unnecessary risks.
• Botswana can embark on a process that can inspire future efforts by similarly circumstanced countries that wish to revise their constitutions if it embraces the values of: therisanyo, mmualebe  o bua la gagwe gore monalentle a letswe and moseka phofu ya gaabo ga aswe lentswe. We should not seek to reinvent the wheel. Instead we should build on our reality, circumstances and history to draw upon other experiences as well as the lessons learned from the past twenty-five years in constitution making and research about what factors yield a legitimate constitution.
• The government should be seen to be sincere, honest, open and to be supportive of the constitution making process
• Politicians and political parties should not hijack or frustrate the process of genuine constitutional review.
• The critical constitutional principles that should inform and shape the constitution must be agreed before the process starts.
• Civic education is of critical process in any genuine constitutional review process.
• Deadlock breaking mechanisms must be mutually agreed in advance.
• Ultimately the final product must be approved by the people at a referendum. The referendum as the final adoptive act must be issue based.
• We propose a transformative constitution that includes constitutionalization of labour rights, an expanded bill of rights to include socio economic rights, creation of institutions that support democracy, direct election of the president, an independent parliament and a transformed and independent judiciary.

PROLOGUE

This a joint position paper by Botswana Federation of Trade Unions (BFTU) and Botswana Federation of Public Private and Parastatal Sector Unions (BOFEPUSO) on two equally important aspects of the pending comprehensive constitutional review announced by His Excellency the President of the Republic of Botswana.

In this paper we set out our position on the importance of an inclusive and people driven process and a constitution that is transformative in nature in terms of its content on various aspects of state power, including its bill of rights. This paper is informed by the best practice in constitutional review such as those that took place in South Africa, Namibia and Kenya in the last three decades. We have noted the failed attempts at constitutional review processes such as in Zambia and Tanzania and sought to avoid the errors they made that led to stalemated processes.

In our view there is no reason why Botswana with the advantage of many case studies in Southern Africa on constitutional review process cannot excel and engage in a process that can be a guiding model for other nations that in future embark on similar constitutional review exercises.

The content of this paper relates to various aspects of a constitution review process that are critical for a successful exercise. We discuss in brief some key ingredients of a successful constitutional review process. We also propose a transformative constitution fit for the 21^st century. We highlight labour rights that we think should be constitutionalized based on our grounded experience. Finally, we suggest a road map for the exercise.

INTRODUCTION

Historically, constitution making was concerned with the content of the document itself rather than how that content was agreed upon. Times have changed, now process is considered as important as content. History of colonialism teaches that colonial powers, when drafting constitutions of colonies were more ken on consolidating their power or protecting their interests by determining which parties would take the reins of government and the terms under which they would rule. As a result of this motive, most, if not all of the post- colonial constitutional talks, did not involve any meaningful consultation with the people. Many of them were drafted behind closed doors.

Participation of the people is critical in cultivating ownership of the constitution by the people. The ownership by the people of the end product is more enhanced if people genuinely believe they were consulted. To this extent, the involvement of the people in constitution making process not only enhances the legitimacy of the constitution, but also the ability and willingness of the people to defend it.

It follows from the above that it is prudent to ensure that the constitutional review process must empower the people rather than inhibit them by creating platforms and avenues for individual involvement. At the end of the day the people must feel that the constitution that they have approved would improve good governance and contribute to solving the political, economic and social problems that they face, bearing in mind that no constitution can be a panacea of all socio-economic and political problems.

The right to participate in the affairs of one’s nation is derived from the right to democratic participation as provided under the United Nations Declaration of Human Rights of 1948. Article 21 of the United Nations Declaration on Human Rights recognizes the concept of public participation, and Article 25 of the International Covenant on Civil and Political rights provides for every citizen’s right to take part in the conduct of public affairs.

Article 13(1) of the African Charter also provides for public participation. The content of public participation has been expanded and developed to include other rights like equality, freedom of speech and association. Participation of the people in the conduct of public affairs must be genuine and effective. Effective public participation implies the involvement of the public and other stakeholders at all stages of the constitution making process including in the selection of members of the Constitutional Review Commission or Technical Committee.

Public participation is more effective, when it is preceded by meaningful civic education. Transparency and clarity on the rules and procedures followed at the various stages of the process are crucial. Educational campaigns ensure that the public’s contributions to the debate are more constructive and informed. It also ensures that the public has confidence that the constitution drafters will respect their contributions. A transparent and fair process should allow people to contribute their thoughts, even with respect to membership of a Constitutional Review Commission. It is desirable that membership of the Constitutional Review Commission should be inclusive. It is ideal that such a process must be led by a judge or a person who has held high judicial office.

Building consensus across deep divisions and with previously excluded citizens through national dialogue, public consultations, and civic education is of critical importance as it has the potential to:

• make the constitution itself, and subsequent governments more legitimate in citizens’ eyes;

• garner wide support and therefore deepening its legitimacy;

• provide a forum for inclusive national dialogue to promote trust building;

• foster consensus on the fundamental principles of the nation and the framework of the state;

• strengthen and promote a common sense of belonging, national unity, and identity;

• acknowledge and incorporate the aspirations of citizens who have been previously marginalized, such as women, youth, or minorities;

• broaden the constitution’s social and economic agenda;

• transform the understanding of constitution makers themselves, as they learn about the hopes and concerns of their people and see and hear firsthand the problems they face; and

• break from an autocratic authoritarianism of the past and lay a foundation for more democratic practices, a culture of rule of law, and ongoing citizen participation in decision making in the future.

Researchers on constitution making/review process and state building highlight that unstable political orders are more likely to be the products of political exclusion.

SOCIO, ECONOMIC, POLITICAL AND LEGAL CONTEXT

Political Context

Under this section we provide the context within which our position should be appreciated. Botswana is a stable multi-party democracy in terms of which elections are held every five years. The president is not directly elected by the people and his or her term of office is fixed for ten years. A year or so before the president’s terms expires the vice-president takes over automatically (automatic succession) and leads the country to the next cycle of elections. The country follows the first past-the post-electoral system. Political parties are not funded and there is no regulation of private funding of political parties. The ruling Botswana Democratic Party has been in power since 1966. In October 23, 2019 Botswana held its 11th general elections, with His Excellency President Dr. Mokgweetsi Eric Keabetswe Masisi assuming the presidency.

Economic Overview

The post- colonial economic performance of Botswana, using conventional economic indicators, has been admirable as the country has, over the years, enjoyed strong and stable growth since independence, with sizable fiscal buffers and prudent policies playing a key role in shielding the economy. However, pockets of inequality have always been part and parcel of the structural deficiencies of the economy.

A major concern has been the country’s over dependence on diamonds. The limitations of Botswana’s diamond-led development model have become more apparent: growth is slower, inequality remains high and job creation is limited. At the same time, increased diamond market volatility—including growing competition from synthetic diamonds, reduced Southern African Customs Union transfers and fiscal expansion have resulted in eroded fiscal buffers.

COVID-19 (coronavirus) has magnified the fragility of both the economy and the institutions of democracy established to promote the rule of law. It has exacerbated existing growth challenges, leading to an estimated real gross domestic product (GDP) contraction of 7.9% in 2020 (the largest on record). The contraction reflects the impact that reduced global demand, travel restrictions and social distancing measures have had on output in key production and export sectors, including the diamond industry and tourism.

In consequence of the above developments, including potential effects of corruption, Botswana’s fiscal deficit is set to widen to 11.3% of GDP in 2020/21, from 5.6% in 2019/20, reflecting a sharp decline in mineral revenues. Increasing wage bill has been a talking point in government with some officials advocating for a reduction of the size of the public sector. If these happens inequality, unemployment and poverty will increase.

Luckily economists expect recovery in 2021 due to a favorable outlook for the diamond industry. It is hoped that with the vaccination process having started there would be no need in the future to embark on hard lock down measures that can adversely affect the economy.

Social Context

Although some reports suggest that living conditions have improved, on the ground pockets of grinding poverty and squalor are manifest. Official reports suggest, however that poverty has fallen significantly. The share of the population living on less than $1.90 a day at the 2011 Purchasing Power Parity declined steadily from 29.8% to 18.2% between 2002–03 and 2009–10, and to 16.1% in 2015-16. Inequality is also reported to have fallen although still high. Between 2010 and 2015, inequality, measured by the Gini index, fell from 60.5% to 53.3%. Among factors associated with Botswana’s declining income inequality, the key one is regional convergence due to fast growth in rural areas and demographic changes.

The recent Botswana Multi-Topic Survey: Labour Force Module Report indicates that the unemployment rate has gone up to 24.5% with youth unemployment (32.4%) posing a critical challenge. Addressing these challenges, require among other things, that the State be obliged to guarantee socio-economic rights. This may translate into the State being obliged to improve the quality of infrastructure (water and electricity), essential basic services (education, health, and social safety nets).

The Legal context

Botswana is a constitutional democracy in terms of which the constitution is the supreme law of the land. The constitution has never been fundamentally revised since independence in 1966. The bill of rights only entrenches civil and political rights and leaves out socio-economic and cultural rights.  Labour rights are not explicitly recognized. Separation of powers is loose. The judiciary is seen to be independent although the appointment of judges of the Court of Appeal in secret is a major concern that does not inspire confidence. There is certainly need to re-organize the court system and align it with best practices and ensure that its independence is not open to doubt. The country needs to have a Chief Justice who sits at the apex court and is also the President of the Court of Appeal to avoid two centers of power that may be potentially divisive.  The constitution concentrates too much in the President of the Republic and the central government vis –a vis local government is too powerful. The President is not directly elected, which may have a bearing on serving the nation as compared to a political party. Ministers are appointed from members of parliament, which blurs separation of powers.

WHAT IS A CONSTITUTION?

Before delving deeper into various segments of the process that we desire and support, it makes sense to appreciate what a constitution and its purpose. There is no one single universally accepted definition of what a constitution is, but is accepted that constitutions are primarily about political authority and power within a state; where it is located, and how it is conferred, distributed, exercised and limited among the separate organs of the state and in relation to its subjects. Constitutions deal with both matters of procedure and substance. Apart from setting out specific legal norms, they will often state more declaratory ideological principles on state power and authority.

Almost all constitutions acknowledge that the basis of power of any government is derived from the will and authority of the people. Article 21(3) of the 1948 Universal Declaration of Human Rights provides that will of the people shall be the basis of the authority of government; this will shall be expressed by periodic and genuine elections…

This principle was given further effect by Article 24 (a) of the 1966 UN International Covenant on Civil and Political Rights which entered into force in 1976, providing that every citizen, shall have the opportunity … to take part in the conduct of public affairs either directly or through freely chosen representatives. This principle forms the basic relationship between citizens and state. When it is set out in a national constitution, it results in a contract between a government and its people.

The status of most written constitutions across the globe is that they are ‘the highest law of the land’, overriding all ordinary legislation. Thus, the creation and reform of a national constitution is vital for lasting peace, good governance and stability of a state and should ideally be conducted in a transparent and fair manner, making sure that the people are consulted at all the stages and “not told” what the leaders want. This is because is not a document of the leaders but the people. This underlines the importance of the requirement of Article 24 (a) of the Covenant that citizens participate ‘directly or indirectly’ in public affairs, a critical part of which is the constitutional process. Once the leaders start dictating to the people how the constitutional review process should unfold, the foundation is immediately exposed as faulty, and the end product would be of dubious credibility.

The constitution of a nation is not an ordinary statute which mechanically defines the structures of government and the relations between the government and the governed. It is a ‘mirror reflecting the national soul’, the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. Most constitutions are founded on mistrust of those in authority, hence the need to place limitations and make the government accountable.

The fact is that constitution-making processes in different parts of the world will each have unique features. While constitution makers will borrow and lend from each other, they will each have to create a modality and format that corresponds to their own particular circumstances.

Constitution making or revision processes have become a highly contested political terrain in many countries. The current debates in Kenya are one example. In some countries in Africa attempts by governments to impose their will on the people with respect to process and content have stalemated the process. 

Successful constitutional reform processes are those that succeed in cementing the relationship between citizens and their state and make positive contributions to nation-building.

HISTORICAL OVERVIEW OF THE MAKING OF THE INDEPENDENCE CONSTITUTION.

Botswana’s constitution was a colonial imposition. It was a negotiated document following the Lancaster House talks between the nationalist leadership and the colonial administration. The result was a constitution with strong features of the Western Parliamentary System and some elements of the Presidential System. There was no popular involvement, in the conception, and drafting of the constitution, nor popular approval of the final document by the people. This historic injustice should be properly and adequately remedied by the next comprehensive constitutional review process. The question that arises is: what then are the benefits of popular participation?

BENEFITS OF BROADENING PARTICIPATION

Recent scholarship regarding a participatory process underscores the benefits of broadening participation and the risks of exclusion. Many scholars have observed that constitution making or reviews in the last three decades indicate that high or moderate civil society involvement in constitutional review processes appears to be strongly correlated with sustained peace; and that absence of civil society voices can be fatal to future peace and stability of a country.

The constitution review process provides an opportunity to address the gaps and short-comings that the people have identified in their constitution over the years. They should be allowed to correct any gaps that exist than be denied the opportunity to do so. By broadening the constitutional discussion, a participatory constitution-making process can even confront deep-seated issues that have historically divided the nation, such as the issues of minorities that may feel excluded, and therefore not belonging to the nation state.

As Nicholas Haysom argues, if “new values” of social equality and cultural harmony “are to be absorbed into the political culture, then it is critical that they be embraced by the ordinary men and women—the citizenry at large.” This requires constitution makers to build trust with the public and promote democratic practices themselves. They must allow substantive input into the process, and be deliberate in generating public goodwill to confer legitimacy on the entire process.

BUILDING TRUST

Building trust is critical to the constitution review process. Trust is built by being honest, transparent and fair and not insisting on acting unilaterally. Governments that are facilitating constitutional reviews must understand that their role is that of an honest facilitator – always keen to ensure meaningful participatory process that allows people a chance to express their own views. It is this honesty and good faith engagement that builds trust among communities; give rise to new institutional arrangements, rights, or guarantees; give visibility to and empower previously marginalized peoples; and provide a forum for national dialogue that would result in a constitution owned by the people.

In South Africa, for example trust was established between blacks and whites (historic enemies) not only through the words and deeds of heroic South African statesmen on both sides, but also through public constitutional forums that engaged every South African – black and white, on what future constitutional dispensation they desire. The constitutional talks broke down many times, but there was political will to succeed and compromises were made.

DEVELOPING SOCIAL CAPITAL

Parties engaged in constitutional talks can transform the relationship between citizens and their government if honesty and good faith are observed. And where people see that the government is sincere in the manner in which it is facilitating the process; they may begin to trust the government; and once there is trust the pathway to a legitimate constitution is cleared. This is what is meant by developing social capital. We need social capital to succeed when we embark on a constitutional review process. Where there is mistrust the process will stalemate and flounder.

In countries where authoritarian regimes held power for decades, or where most citizens had been excluded from the political life of the country, a more participatory process could set important democratic precedents, promote societal cohesion, lay the foundation for a culture of rule of law, and educate citizens about democratic practices, values, and principles. Such education can, in turn, empower citizens to demand enforcement and implementation of constitutional rights and limitations and to hold governments accountable when they fail to abide by constitutional requirements.

IT IS IDEAL TO AGREE ON CONSTITUTIONAL PRINCIPLES THAT WOULD GUIDE THE PROCESS AT THE VERY BEGINNING

For a constitutional-reform process to assume direction and substance, a set of principles should be negotiated and devised. These will guide and determine the process. They will determine the broad framework and thinking within which the constitution must be made. 

In South Africa thirty-four constitutional principles were agreed upon, to which the final constitution would have to adhere. It had been agreed that Constitutional Court would adjudicate the adherence to these principles by certifying the constitution, once it had been passed by the  Constitutional Assembly A selection of principles included supremacy of the constitution; a commitment to the rule of law; keeping executive powers in check; judicial independence; transparent and accountable government; protection of human rights; equality of all before the law; decentralizing or devolving power or federalism; regulating political parties; establishing electoral systems intended to promote integration; providing positive measures, affirmative action, or ethnic quotas; separation of powers between the executive, legislature and the judiciary; the judiciary must be appropriately qualified; the institution and role of traditional leadership; entrenchment of the constitution against amendments; and the limitation of rights.

In Zimbabwe, the Global Political Agreement (GPA) contained constitutional principles. These formed the basis of a set of Talking Points, which Talking Points were the discussion points in the public consultations. In terms of Article VI of the GPA the parties undertook to conduct a “people-driven” constitution making process that would produce a constitution that “deepens democratic values and principles”. Essentially the parties to the GPA committed themselves to undertake a constitution making process that is based on extensive public participation and that produces a democratic constitution. Article VI of the GPA outlined the key stages which the intended constitution making process would involve in order to ensure that the process was based on public participation.

It is our considered view as the trade union movement that in drafting a new constitution, Botswana must also bear in mind the standards and principles set out in the African Charter on Democracy, Elections, and Governance (ACDEG). Article 10 of ACDEG is instructive and provides:

“ 1. State Parties shall entrench the principle of the supremacy of the constitution in the political organization of the State.

2. State Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum.”

Modern constitutional making should also be constrained and shaped by the international standards to which all countries have assented, as captured by the Universal Declaration of Human Rights and other relevant regional instruments such as the African Charter on Human and Peoples’ Rights.

THE NEED FOR INFORMED INPUT BY THE PEOPLE IS IMPERATIVE

Ensuring that the people’s contribution is informed is critical. It requires that civic education be undertaken. This requires employing multi-media forums, and other modern means of engaging the people. It also requires physical meetings where possible. In the era of Covid -19 this is bound to be a challenge. That is why the time frame should not be too short. Most of our people in the rural areas do not have the connectivity and know- how of the urban dwellers. The elderly are often slow in utilizing technology. Care must be taken to ensure that civic education embraces their realities too. It is only once people have been enabled that they can meaningfully make substantive inputs in the constitution. We as the trade union movement are uncompromising on this point. We would like to see civic education rolled out. The content of that curriculum must be agreed by stake- holders.

Within the limitations discussed above we can put internet to good use. In Iceland, a massive public consultation effort using the internet in unprecedented ways resulted in approximately sixteen hundred web-based proposals, including recommendations to add rights that had been absent from the previous constitution. In Rwanda, gender equity advocates successfully influenced the content of the constitution. In Tunisia, public opinion prompted significant changes to the first draft that the National Constituent Assembly produced. Public participation can be an invaluable check against unilateral or coercive action by politicians in general and governments in particular. The benefit from public input can extend beyond the constitutional moment. As expressions of the people’s needs, aspirations, and views emerge, governments can get a better sense of national goals and priorities for services and development, which can be incorporated into governance strategies.

PUBLIC PARTICIPATION, TRANSPARENCY AND ACCOUNTABILITY

Public participation, by definition, increases the transparency of the constitution review process. It is also a valuable tool for stakeholders to protect the integrity of the process, and protect officials against unfair or unjustified allegations of behaving in a biased or self-serving fashion. Transparency also strengthens accountability to the public as the process unfolds. As the media, civil society groups, and the public at large know more about how the process is supposed to unfold, they can monitor and report on any deviations, including breach of constitutional principles that must be agreed to before the process unfolds. As the trade union movement we would like to see transparency throughout the process. We do not support any process that is not transparent.

A transparent constitution-making process is one that is conducted in an open manner so that, at each stage, people are aware of what is happening and why, informed about the decisions being made, and confident that their voices are being heard.

Transparency may be viewed as a mechanism of ensuring that governments obey the rules of the process and holding them accountable when they do not. It is also a tool that officials can use to promote the legitimacy of the process, manage public expectations by explaining how consensual decisions were reached, and protect themselves against allegations that they have behaved in a biased or self-serving fashion. Moreover, transparency can forestall unfair criticism. It is often said that the press is like a hungry dog: If you do not feed it, it will eat the scraps that fall on the floor.

We urge the government to pass legislation that would govern the constitutional review process. This, in our view, is one way to create transparency and accountability. The legislation would establish the timeline and principles that will govern the constitution-making process, as well as the nature and mandate of the constitution-making bodies that will manage and perform it. By informing the public about the nature of the process from the start, authorities can begin to engender confidence and legitimacy.

Transparency requires that all meetings of the constitutional review process be open, and critical ones must be recorded and broadcasted by radio and television. In many countries press and civil society have been allowed to attend commission meetings and sessions. Constitution-review bodies have issued regular updates to the public and media through written statements, briefings, and question-and-answer sessions. Constitution-review bodies have posted reports on an official website and have made hard copies available at their headquarters. Further reports have been produced to accompany draft constitutions, explaining how public inputs were considered and why certain choices on constitutional matters were made. Drafts of constitutions have been distributed to all localities and posted online.

The public should be informed of plans for civic education and public consultation efforts as early as possible and given sufficient notice of when and where to participate. The views gathered during public consultations should be carefully gathered and recorded and then made available for public review. In Kenya, the Constitutional Commission held hundreds of public hearings and received tens of thousands of public inputs. The commission entered every input into a database that could be sorted by name, topic, locality, and other criteria.

Codes of conduct requiring integrity and neutrality on the part of those carrying out the civic education and public consultation processes should be adopted and publicized, and officials should be held accountable for any misconduct. Elected officials, courts, media, and a variety of civil society actors should monitor and oversee formal and informal institutions involved in the drafting process.

A transparent process is likely to increase the sense of national ownership and support for the constitution. It can also educate the public on democratic practices and set precedents for future government conduct. Transparency is not only a means of achieving integrity and legitimacy for the constitution-making process, but a goal in itself.

WE MUST AVOID ERODING THE LEGITIMACY OF THE PROCESS

We as the trade union movement in Botswana are consciously aware that if we fail to heed the public’s demands to take part, this may erode the legitimacy of the process. We do not support a hurried process because we do not want a sham of a process. We have seen what has happened in other countries when the process is hurried. For example the government of South Sudan had limited time to draft and ratify a transitional constitution before independence on July 9, 2011, and it appointed a committee to do the work in only four months. As a result, the process included no civic education or public consultation.

The ruling party, which had won 97 percent of the seats in the national legislature less than one year earlier, came under intense criticism from the media, the South Sudan Council of Churches, opposition political parties, state and local government officials, and numerous nongovernmental organizations for adopting an exclusionary constitution-making process. Because these stakeholders were not included in the discussion, many legitimately assumed that the leaders were motivated by self-interest. This pressure forced the government to spend time and political capital seeking to bolster its democratic bona fides, in part by adding guarantees of greater participation and inclusion in the post-independence constitution-drafting process.

In East Timor, civil society and members of the public called for widespread public participation and a consensus-based process. Instead, a single political party dominated the constitution making, giving only lip service to participation. The resulting constitution was viewed as the product of a single party and lacked legitimacy. .

We therefore urge all politicians – more particularly the government that would be facilitating the process not to undermine, in anyway, the legitimacy of the process. It is in every government’s interest that the public perceives the process and results of constitution making as legitimate, as both can affect the legitimacy of the government itself. Genuine public participation, conducted in good faith by the governing authority, boosts societal ownership of the constitution and extends its legitimacy. We can learn from our neighbors, such as Namibia and South Africa that engaged in a process of consulting the people that led to a legitimate constitution. The South African constitution, drafted through a participatory process, included an introduction explaining that “the objective of drafting this text was to ensure that the final constitution is legitimate, credible and accepted by all South Africans.”

In Kenya, where the 2010 constitution was ratified after a particularly contentious and divisive referendum, interest groups that campaigned hard to reject the constitution accepted the outcome, in part because they felt they had been given a free and fair chance to express and champion their views. As William Ruto, Kenya’s then-minister of higher education, and now Deputy President, and a leader of the No campaign, stated as he admitted defeat: “[The] majority had their way, we had our say.”

MANAGING POSSIBLE RISKS

We as the trade union movement are aware of the risks of embarking on such a huge national project. If not properly done we may emerge out of the exercise more divided that before we started the process. This must be avoided. Undertaking the process during the Covid -19 pandemic means we must accept regular disruptions. Our time frames must take this reality into account. We do not as yet know the direction of Covid 19 and its implications going forward.

It is important that the process must be well planned and managed to address the challenges that arise particularly in divided societies. Participatory processes are more complex and complicated than elite-driven ones. They take more time, cost more money, demand more institutional capacity (e.g., local offices, larger secretariats, civic education teams, educational curriculums), and require the management and processing of many more interests and views. We need sufficient budget for a people-driven constitution review process. To this extent we would welcome government, in the name of transparency, indicating to the public the total budget for the exercise and the budget lines for various constituent elements of the process including civic education.

Ensuring that the process is well planned and managed; conducting effective civic education and public information campaigns; ensuring that the process has sufficient time and resources; and adhering to the principles of inclusiveness, transparency, and national ownership can help manage and mitigate many of the risks. The challenge is to design and manage the process to maximize the benefits while avoiding the risks discussed above. Legitimacy through consensus is the ultimate goal of constitution review process—consensus among political elites, between the people and their elected representatives, and among communities. Public participation can be an invaluable tool with which to achieve this consensus; the absence of participation can severely impede efforts to build it.

BUILDING CONSENSUS

We believe most sincerely that we must in good faith genuinely attempt to build consensus on major aspects of the constitution and avoid unnecessary polarization. Public participation can make building consensus harder. As participation increases the number of views to be accommodated, in both the process and the draft, it increases the likelihood that competing opinions will need to be reconciled. Even where constitution making is grounded in mass participation, it still requires compromise among political elites and other national leaders.

TIME AND MONEY

We have already indicated that we must be alive to the challenging times under which we wish to carry out the constitutional review process. Covid -19 situation has a bearing on both the time and money. From a time point of view it calls for allowing more time given the obvious disruptions we will experience on the way. It also has implications on the budget. It begs the question do we have money for the process.

We assume that since government has long prioritized this project, money has been set aside for it.

The element of civic education and public consultation would obviously lengthen the process of negotiating and drafting a constitution, not only because of the time required to conduct the civic education and consultations themselves but also because of the greater number of views that need to be reconciled to reach agreement or fashion compromises.

The truth is that constitution review process is costly. We can take lessons from Kenya. According to government estimates, the participatory elements of Kenya’s process, including outreach efforts, the national conference, and the referendum, cost $88 million, or roughly $2.57 per person. Unofficial estimates are as high as $138 million.

MANAGING PUBLIC EXPECTATIONS

Implicit in consulting the people is the expectation that their views would count. But the reality of the situation is that not all views may be accommodated. There would have to be compromise on a number of issues. For example, human rights activists may not be in agreement with the people when they suggest that the Death Penalty must be abolished and many other contentious issues. And they are many. Public participation can erroneously lead people to expect to have their way on every—or any— issue. This is not possible. But we should be able to agree on a majority of issues that are accepted by civilized community of nations and are already recognized internationally.

The issue of the Death Penalty may not be the only issue that will divide us. There are issues of minorities and vulnerable groups. There are issues of the role of Chiefs that would have to grapple with. In all these issues we need to embrace the spirit of give and take.

Constitution review process should not be equated to an opinion-poll. It is possible that even if an overwhelming majority of citizens expresses a particular view, it may not be reflected in the final draft. In Kenya in 2010, a majority of Kenyans opposed Qadi (Islamic) courts, but the final draft of the constitution included them out of respect for the Muslim minority, to the ire of the majority. In other words, a constitution, must of necessity, accommodate the views of the minority and the majority cannot always have their way.

EVALUATING INPUTS

The evaluation of inputs of the people is laden with grave challenges as we shall demonstrate hereunder. We submit that the Constitutional Review Commission or whatever body is established to run the process must be competent in evaluating submissions, reconciling them and ensuring a proper balance

Many questions are going to arise. For instance, how do weigh submissions for purposes of including in a draft: Should a petition signed by ten thousand people enjoy greater weight and consideration than a letter sent by a single person? How do we verify the purported signatures? What about a Twitter feed with thousands followers or a Facebook post with thousands of likes? And what if three thousand people who signed a petition all belong to the same political party? How do we deal with participants at community forum who come and read from identical scripts? There are no right or wrong answers to these questions. In the end, weighing, considering, and incorporating public inputs is more of art than science. What is important is that drafters sincerely consider the views and preferences of the people, try to find consensus wherever possible, and remain transparent in communicating why they rejected other submissions and accepted others.

The body running the exercise must be vigilant to ensure that political parties in particular do not manipulate the process. In Zimbabwe, civil society monitoring groups reported that people were “reading from prepared scripts/booklets… providing answers… irrelevant to questions being asked, [and only a] few people making contributions even where the meeting [was] highly attended.” There is no doubt in our view that these practices infringe on citizens’ right to be heard and constitute a form of coercion. It was also reported that departures from coached positions usually carry the risk of punishment. Coaching is plainly counter- productive as it undermines the utility of eliciting public input, further polarizes the public, and erodes the legitimacy of the constitution-making process.

THE CONSTITUTIONAL REVIEW PROCESS MUST ULTIMATELY BE ROOTED IN THE HISTORY AND CIRCUMSTANCES OF EACH COUNTRY

It is critical that the constitutional review process must be rooted in our own history and circumstance – and should reflect our values as a nation – and should above all else ensure that it makes it difficult for public authorities to abuse power entrusted to them by the people. History is important as it provides sense of continuity, comfort, and perhaps even legitimacy. But our country should also avail itself of lessons learned in other countries during the past three decades of inclusive and participatory processes.

Each country has its own set of constraints and opportunities. Each principle must thus be tailored to fit the experiences and needs of each country. If customized wisely, however, general principles derived from other countries’ experiences will assist constitution makers to address the demand for greater public participation, maximize the benefits of that participation, and minimize the risks.

POLITICAL WILL IS CRITICAL

In order to embark on a constitutional review process that we could all be proud of we need all political actors, especially government, to have the political will to produce a legitimate constitution. By political will we mean the determination to do all that is necessary to achieve the desired results. A prerequisite to successfully engaging the public is the political will to conduct genuine and effective consultations. In some cases, governments in particular, often embark on this process not because they believe in the process but in order to placate the views of those who demanding reforms.

In other cases, regimes have used public participation to give the appearance of democratic involvement or to confer legitimacy upon themselves, even as they were determined to manipulate the consultations or impose their preferences, regardless of what the public wanted. Uganda’s constitution-making process included widespread civic education and more than twenty-five thousand public inputs but did not result in a democratic system of government. The 1990 Zimbabwe constitution-making process included more than five thousand public forums but merely demonstrated how a government can use a commission to ostensibly consult with the people on constitutional reform while in reality ensuring that the government controls the process.

Research has shown that when people perceive a consultation to be insincere, they lose trust and confidence not only in the process but in the resulting constitution, their leaders, and the direction in which they are steering the country. Experience has also shown that constitution makers with a genuine will to consult with the public may lack sufficient resources or knowledge about how to do so effectively.

IT IS IDEAL TO REACH AS MANY PEOPLE AS POSSIBLE

We take the view that the constitution review process must attempt to reach as many people as possible.  It is for this reason that we are very strong on civic education. Civic education and consultation programs should reflect the diversity of the country. This principle applies both to inclusiveness (i.e., having all key stakeholders represented in the constitution-making/review body) and to participation (i.e., reaching people directly). Failure to reach out to the population as a whole risks provoking accusations of partisanship and favoritism, on the one hand, and unfairness and marginalization, on the other hand.

Special attention should be paid to reaching disadvantaged or marginalized peoples. This may require translating materials into minority languages or using audio and visual tools for the illiterate. In Kenya, constitutional materials were available in braille. Special efforts must be made to many other people or groups who may not feel comfortable speaking in public. An inclusive process must consider factors such as poverty, illiteracy, cultural biases, language barriers, lack of development, lack of education, and weak infrastructure in determining how best to reach and educate different populations. No effort should be spared to ensure that all key groups have a voice and that citizens who wish to share their views are provided with a mechanism to do so.

In Kenya and Uganda, consultations were held in each electoral district. South African constitution makers made a concerted effort to reach out to remote parts of the country, but realizing that it would be impossible to reach, let alone properly educate, every person, they focused on community leaders with the motto “reach the people who reach the people”.

ALL VOICES MUST BE HEARD AND CONSIDERED

We believe that all the voices must be head and that no individual, group or constituency should seek to silence or exclude another voice. Any compromises must be fully debated and in the course of the debate the majority should not suppress the minority. It is absolutely important that diverse components of society agree on key issues. Not every view on every issue can be represented. But if properly done all participants will feel they have meaningfully taken part in the constitutional review process.

Attempts at consensus although not easy must be made in good faith. Achieving consensus requires having time to build relationships and develop mutual understanding. Decisions must be made through discussion, negotiation, and persuasion, using majority votes only as a last resort.

INVOLVEMENT OF INTERNATIONAL ACTORS ALTHOUGH DESIRABLE SHOULD NOT OVERSHADOW NATIONAL ACTORS

Most constitutional review processes attract international observers – even advisers, but care must be taken to ensure that they do not overshadow or marginalize national actors. This is so because constitution making must be nationally owned and led in order to be successful. International advisers should get involved only if national authorities invite them to do so. Once involved, international actors should leave the lightest footprint possible and make every effort to ensure that national actors play the principal roles in designing and implementing the constitution-review process, including educational and other participatory programs. In some cases, this may mean international actors only offer advice from the sidelines. Even where more robust assistance is appropriate, international actors should cite lessons learned to help national actors make informed decisions for themselves and not push for a civic education curriculum or process that does not meet local needs.

National actors must lead because it is their process and they must live with the results. Legitimacy of the constitution also implies that local preferences, needs, and interests should be at the forefront, increasing the credibility of the constitution-review project. Empowering national actors with training, knowledge, skills, and experience pays dividends long after the constitution-making exercise is completed. It also strengthens civil society, as interest groups mobilize around key issues and develop advocacy and organizational skills.

GUIDELINES ON CIVIC EDUCATION

Civic education is critical to efforts to promote a national dialogue on constitution review process, building consensus, and engaging the public. Stakeholders should promote civic education partly because it enables people to understand the constitution-review process specifically and democratic values and principles generally. It is also a chance for people to hear the issues being discussed, the choices being made, and the ways that they can participate in the process. People cannot be a part of constitution making if they do not understand what choices they are being asked to make, or even why the existing constitution should be reviewed. Civic education enhances the public’s ability to participate in the implementation of the constitution after its adoption. It should take place before, during, and after an official process is launched to ensure that members of the public understand the constitution and their rights. It is desirable that those driving the constitution review process consult with the public about how the process should be conducted before it is designed, the agenda for the reform process, specific constitutional issues before a draft is prepared, and the nature of the reforms themselves.

To prepare the public to participate in constitution making, government officials and civil society may promote civic education even before the official constitution makers are selected. The focus at this stage should be on fostering awareness of the process itself as well as preparing people to participate. Educational efforts should explain why reform is needed, the history of constitution making, the timeline of the process and the public’s role in it, and how the process will take place.

Civic education is critical in the effective implementation of the constitution as well. It is axiomatic that organizations and individuals can demand their rights only if they know them. Civic education during the constitution-review process should inform people not only of what rights exist but why these rights are important. It should also educate them on the institutions, the presidency, separation of powers and generally how the State is organized.

It is reported that in South Africa, some people carried the text of the new constitution in their pockets for years after it was adopted, a statement of empowerment. After the constitution has been ratified and adopted, civic education efforts should focus on the constitution’s contents, the people’s civic rights and duties, and the ways citizens can access their rights.

METHODS OF CIVIC EDUCATION

The methods used to educate the public should be chosen in light of the circumstances prevailing in each country including literacy levels, country size, and geographic accessibility. Different mechanisms will be needed to reach different groups, with the rural poor and marginalized citizens typically being the hardest to reach.

Many countries processes have used television, radio, the internet, and social media, as well as workshops, meetings, pamphlets, and books. South Africa employed a poster campaign with the slogan “This is your Constitution,” as well as brochures, posters, newsletters, comic books, and other creative means to raise awareness and encourage people to participate.

Research has demonstrated that conducting workshops communities, including evening or weekend classes is the most effective way to ensure that people are empowered to participate and able to understand the process and choices involved.

Whatever methods are used, a vigilant information campaign at each stage of the constitution making process promotes better public understanding of and access to the process and facilitates public participation.

PUBLIC CONSULTATION

We cannot over emphasize the importance of inclusive public consultations as a key component of participatory constitution reviewprocesses. Constitution makers typically use a wide range of consultation mechanismsto reach as many citizens as possible or to achieve different objectives at different stages of theprocess. Those mechanisms can range from face-to-face public meetings, civil society hearings, focus groups, social media, and requests for written submissions.

The opportunity to provide submissions in writing or through electronic means is particularly important where direct consultation with all communities is not feasible. Creating a dedicated website may be a good idea to reach as many people as possible. A dedicated website can make it easier for citizens with internet access to provide direct input. Kenya in 2009 and 2010, Iceland in 2011, and Fiji in 2012 all created Facebook pages that allowed the public to offer comments. A well-functioning secretariat with local offices in constituencies will go a long way in facilitating the process of consultation. It is important that arrangements be made to record, sort, maintain, analyze, and seriously consider all views. Oral submissions must be meticulously recorded, whether by videotape, audiotape, or in writing. A well-trained administrative body must maintain the documentation according to an agreed-upon procedure to protect the integrity of the information. Submissions should be coded so that, where appropriate, they can be quantitatively and qualitatively reviewed and considered. In Kenya, submissions were coded and tabulated by the submitter’s biographical information—name, age, gender, and residence, which were kept confidential.

As the trade union movement we would like to see the process characterized by robust debates, that rises above labels and accusations of motives and focus on the broad concerns of citizens and options for addressing these concerns. We know that this is easier said than done. But a well-facilitated dialogue accompanied by a public education campaign can bring people closer together, giving them an opportunity to identify the needs and preferences of citizens and to reach consensus on thorny issues.

WE WILL REACH OUT TO CIVIL SOCIETY

As the trade union movement we are keen to reach out to other layers of civil society, forge strong partnerships that can ensure that a constitution that emerges out of the consultative process is the one all Batswana desire. We say this knowing that the task of educating the public and raising awareness is extremely demanding and is often carried out by a multitude of actors.

We know that the term civil society is broad and can mean different things in different contexts. It typically refers to any non-state actor, including nongovernmental organizations (NGOs); social and professional organizations, from trade unions to tribal and religious institutions; and interest groups. In some countries, civil society is dominated by a vocal minority—elite, educated, urban-based organizations that have access to the media and the ears of political leaders but have less resonance with the general public. We intend to bring the connection and resonance with the public which we need to engender a legitimate constitution.

REFLECTIONS ON CERTAIN ASPECTS OF THE REVISED CONSTITUTION

As the trade union we would like to see a huge improvement in the new constitution in terms of which the State is re-configured and its bill of rights as we shall suggest hereunder. More significantly we consider that in keeping with the world-wide trend it is important that our constitution should clearly outline, at the very beginning, the founding provisions for the state. Ideally, the introductory chapter should make it clear that the constitution is the supreme law of the land and that any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.  This is important so as to make it plain to any person that the constitution is superior to any law and guard against possible undermining of the constitution by politicians in the future. Our constitution does not make this point categorically clear. That the constitution is superior is implied from its character and totality of its provisions. Reading the constitution as a whole our courts have held that the constitution is the supreme law.

We also suggest that the introductory chapter should state the founding values and principles including “the rule of law,” “fundamental human rights and freedoms,” “observance of the principle of separation of powers,” “human dignity” “democracy” and other values that capture the essence of constitutionalism and the rule of law.

It may also be a good idea for the constitution to oblige the state to “promote public awareness of the constitution,” through translating it into all languages spoken in the country, teaching it in schools, including it in curricula for all public employees, and encouraging everyone to disseminate it as widely as possible. It is important that the constitution should promote the belief that, unless people know, cherish, uphold, and demand respect for their constitution, it will remain a glorified piece of paper.

A COMPREHENSIVE AND TRANSFORMATIVE BILL OF RIGHTS

The trade union movement strongly support that the new constitution should provide for a wide, comprehensive and fully justiciable Bill of Rights, which includes civil and political rights, as well as economic, social and cultural rights.

Additionally, in our view, the new constitution must include a chapter on National Objectives which sets out a list of obligations, to guide the state in formulating and implementing laws and policy decisions. These obligations, may or may not create corresponding and individually justiciable rights enforceable in a court of law.

We are also of the view that the new constitution should impose duties on both the state and private persons, including juristic persons, with regard to the Bill of Rights, by making it clear that both the state and every person, including juristic persons, must respect, protect, promote and fulfil the rights and freedoms set out in the Bill of Rights.

Making private power accountable to the law in so far as human rights are concerned makes sense in the contemporary era, where multinational corporations and other big businesses, may in some circumstances, hold as much power as states or even more.

The inclusion of justiciable economic, social and cultural rights in the Bill of Rights would represent a significant step forward as well. As with many other countries, our constitution did not protect such rights. These socio – economic rights should be comprehensive and possibly include rights to: education; healthcare; food and water; fair labor practices; freedom of profession, trade or occupation; language and culture; and marriage. We also strongly favour socio-economic rights for specific groups, such as a right to: nutrition and shelter for children; welfare for the elderly over the age of 65 years, pregnant women and special educational and medical needs for persons with disabilities.

The Bill of Rights should also entrench the right to access official information, by providing that every citizen or permanent resident, including juristic persons and the media, in the country, has the right of access to any information held by the state or by any institution or agency of government at every level, in so far as the information is required in the interests of public accountability. It should be possible to provide for restrictions to this right only in the interests of defence, public security or professional accountability, and to the extent that the restriction is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

We have been advised that our constitution does not make reference to international law; and that reference to international law may strengthen our human rights jurisprudence. Most constitutions either make international law part of the domestic legal system or allow the courts to have regard to international law when interpreting domestic law under certain circumstances. For instance, section 362(1) of the constitution of Zimbabwe states that customary international law is part of the law in Zimbabwe, unless it is inconsistent with the constitution or an Act of Parliament.

Section 327 of the Zimbabwe constitution states that an international treaty which has been concluded or executed by the President is not binding on Zimbabwe until it has been approved by Parliament and does not form part of the law of Zimbabwe unless it is incorporated through an Act of Parliament. Botswana may choose its own path or place its own innovative limitations on the use of international law.

Given that a number of International treaties Botswana ratifies often do not get domesticated or translated into domestic legislation, it may be a good idea to place an obligation on the state to ensure that all international conventions, treaties and agreements to which Botswana is a party are incorporated into domestic law. This would mean that the state would be constitutionally required to domesticate International treaties it ratifies.

RE-CONFIGURING THE STATE TO MAKE IT MORE ACCOUNTABLE AND TRANSPARENT

We support open democracy in which operations of government are transparent and government is accountable. This limitation in exercise of power is consistent with the rule of law. The need to limit and control the powers of government, especially, the executive, has philosophical roots in the notions of democracy which emphasize that government has no right to govern, save with the consent of the governed. Botswana is a Republic. This means the country has shifted away from traditional mode of governance.

We are of the firm view that the state must adopt policies and legislation to develop accountability, transparency, personal integrity and financial probity in every government agency or institution. Additionally, the constitution may oblige all agencies and institutions of government—especially independent commissions, to be given adequate resources and facilities to carry out their functions diligently, the rationale being that if they have sufficient resources, they may be less prone to corruption.

The constitution should make it clear that Parliament shall be independent, supported by its own staff that it hires and fires. Parliament must be entrusted with the responsibility of an oversight role in holding the executive accountable, by requiring, among others, that the President, Vice President, Minister and Deputy Minister unless lawfully excused, should attend parliament and parliamentary committees in order to answer questions concerning matters for which he or she is collectively or individually responsible.

We are of the view that the constitution must prescribe that every exercise of public power must be justifiable.

We support that the President and Vice President of the country must be directly elected and that there must be rigid separation of cabinet and Parliament. We are of the view that the President once elected must be able to choose cabinet from outside Parliament, subject to the condition that those so chosen must be sufficiently qualified and experienced to discharge their duties as ministers.

DEVOLUTION

The trade union movement supports devolution of power to governance structures rooted in communities. It will make local councils accountable to the electorate rather than the national government. Local councils are much closer to the people and must be given sufficient autonomy and power to be responsive to the wishes and aspirations of local communities.

JUDICIAL INDEPENDENCE AND INTEGRITY

As a major consumer of legal/judicial services we support a fundamental re-configuration of the Judiciary headed by a Chief Justice who will also be the President of the Court of Appeal as per international best practice. We also support strict separation of judicial office in terms of which judges of the High Court cannot sit as Justices of Appeal. We support that qualifications of Justices of Appeal should be distinctly higher than those of judges of the High Court.

We are of the firm view that the Judicial Service Commission must be made up of the Chief Justice as the Chairperson, a representative of the Magistracy, Industrial Court, High Court, Court of Appeal, a representative of Civil Society, Law Society, a representative of the Department of Law from the University of Botswana and Parliament and the Attorney General.

Among judicial reforms that we support are a transparent and merit-based system of appointing judges. The appointment of judges is a crucial gatekeeper that determines who goes to the bench, holding what philosophy and doing what with it, and to whom and in what manner they are accountable.

We are of the view that the new constitution should create a new apex court in the form of a Constitutional Court.

The benefits of a new Constitutional Court are that would create a break from the past in the judiciary, allowing a new breed of legal minds to take charge of constitutional adjudication and operationalizing the new constitution. This would be a court to deal with the difficult and sensitive issues to do with governance and constitutional interpretation and enforcement.

SEPARATION OF POWERS

We have been advised that our constitution does not provide, in explicit terms for separation of powers. The doctrine of separation of powers consists of several principles, including: institutional division of state governance; independence of each branch. Currently, the executive remains the most powerful branch of government. The new constitution must provide for some checks on executive power, and oversight mechanisms to hold each of the three branches accountable.

PROVISION FOR INDEPENDENT INSTITUTIONS

We support the creation of the following independent commissions/institutions supporting democracy: Anti-Corruption Commission; the Human Rights Commission, the Gender Commission, the Media Commission, the Independent Police Complaints Commission, Office of the Auditor General and the Office of the Public Protector. These commissions/institutions should be independent and not subject to the direction or control of anyone.

Members of the commissions may be appointed by the President following a Parliamentary resolution to that effect.

LABOUR RIGHTS IN THE NEW CONSTITUTION

We propose that the following core labour rights must be entrenched in our revised constitution. Our new constitution must unequivocally proclaim that everyonehas the right to work; fair labour practices; to form and join a trade union and to participate in the union’s activities; the right to strike; the right to form and join an employers’ organization and to participate in the activities of the organization; and every trade union, employers’ organization and employer has the right to engage in collective bargaining.

The constitution must oblige the State to recognise the unique status and natural maternal functions of women in society and undertake as a result to take appropriate measures to ensure that the working mother is afforded protection with respect to paid leave and her conditions at work. No woman should be dismissed, or otherwise disadvantaged for anything related to her reproductive role.

The constitution must oblige the State to recognise that the family is the natural and fundamental element of society and the right of everyone to form a family and undertake to promote the legal, economic and social protection of the family. To this extent Employees should also be entitled to take family responsibility leave. An employee who has been employed for longer than four months and who works four days or more for the employer should be entitled to three days paid leave during each twelve months leave cycle to discharge family responsibilities in the following circumstances: when the employee’s child is born or falls ill; In the event of the death of the employee’s spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

The new constitution should mandate that laws be enacted to prevent discrimination, including workplace discrimination. The purpose of such laws would be to ensure workplace equity. The said laws should prohibit unfair discrimination in the workplace and guarantees equal opportunity and fair treatment to all employees. The constitution should stipulate that for purposes of effective collective bargaining Employers, including the State are obliged disclosed all relevant information.

The new constitution must provide for the Labour Appeal Court and that judges of the Industrial Court and the Appeals Court must be appointed from the ranks of specialist labour law practitioners (practising advocates or attorneys) and or lawyers with demonstrable labour law knowledge or experience; in some cases suitably qualified academics. The Judges of the Industrial Court and the Labour Appeals Court must be appointed in the same manner as Judges of the High Court.

OUR PROPOSED ROAD MAP

We are aware that many countries have chosen different pathways to consult the people in a constitutional review process. The road map that we propose here is the one we think is most democratic and ideal to our circumstances as a democratic country.

The process must be clearly mapped out. This includes the following aspects:

• Determining, developing and setting up of the steering body of the constitutional reform-process;
• Designing the methodology and terms of reference
• Setting out the timeframes – In South Africa for instance, after the Constitutional Assembly was constituted, it had two years from the date of its first sitting to adopt a final constitution.  The Constitutional Assembly had to ensure that the constitution contained all 34 constitutional principles which were agreed upon during 1991 – 1993 negotiations which were also contained in Schedule 4 to the Interim Constitution.
• Stakeholder conference(s) – these would be forums to get buy-in and input from all sectors and from citizens. Several of these can be organized at various stages of the process. The Zimbabwean process conducted two such conferences.
• Designing broad principles that will inform the new constitution – this includes setting up the constitutional principles through a broad consultative and participatory process. The stakeholder conferences, or whatever form of engagement may be preferred, would be central in shaping the foundational principles on whose basis the constitution-making process would unfold. Parliament may also be actively involved in this process, and/or any special body that would have been devised to lead the constitution reform process.
• Public consultations
• Drafting
• Debate and discussion
• Finalization of draft
• Referendum or Certification – A referendum is the ultimate seal of legitimacy and ownership. After a draft is developed, the draft may be put to a referendum, so that the people can express their wish on the social contract.

We propose that an Act of Parliament be passed to govern the entire process and that will capture some or all of the above aspects. We propose the following:

Institutional set up

a) The Constitutional Review Commission(CRC)

b) The Constituency Forums

c) The National Constitutional Conference (Stakeholders Conference)

d) Parliament

e) The referendum

a) The Constitutional Review Commission (CRC)

The CRC should be the primary organ of review consisting of a number to be determined at a Stakeholders Conference. The Commissioners should be agreed to at a Stakeholders Conference and thereafter appointed by the President of the Republic in accordance with the resolution of the Stakeholders Conference that shall be binding on the President. The commissioners so appointed shall appoint their chairperson. The commission should reflect our country’s diversity such as: geographical, cultural, political, social and economic diversity, and the principle of gender equity. Commissioners should be appointed on merit.  The commission members should only be dismissed by the Commission itself, and only with a good reason.

•           Stage I – Civic education: preparing the people for participation

We propose that the first stage is to set up the Commission that should embark on a civic education programme within a time frame that may be agreed at a Stakeholders Conference; and or as may be stipulated in the law. The Commission will be obliged to conduct and facilitate civic education in order to stimulate public discussion and awareness of constitutional issues. The public should be enabled to understand and evaluate the present constitution and come up with a constitution they desire.

•           Stage II – Research, studies and seminars: defining the issues

The Commission should conduct many studies on constitutional and socio-political issues in order to define the mandate and make it operational.

•           Stage III – Public consultations: listening to the people

Next, the Commission must consult the people ensuring that the consultation is thorough and comprehensive. The commission, should were practicable, in addition to other methods of consultation kit it may deploy, visit all constituencies to obtain the views of the people.

•           Stage IV – Writing the report and preparing the draft Bill

After consulting the people the Commission must analyze the data arising out of consulting the people and write a report and prepare a draft bill to alter the constitution.

•           Stage V – Debating the commissioner’s report and recommendations

The next stage of the review should be distribution of the report, the recommendations and the draft Bill as prepared by the Commission for examination by the public and civil society. This step is to ensure that members of the public are involved in the review process.

b) Constituency Forum

The purpose of this Forum is to ensure that every constituency debate, discuss, collect and collate the views of members of the public. The forums will fall under the supervision of the Commission. The composition of each forum should be determined by the people of each constituency, and their political and other leaders.

c) The National Constitutional Conference

The National Constitutional Conference should be the most representative body assembled to agree on the Constitution. It shall consist of such number of delegates as may be agreed at the Stakeholders Conference, or as may be prescribed by law. The delegates should be drawn from the National Assembly, District Councils, political parties, members of civil society and experts (who shall not have the right to vote)

d.)Parliament

The law should make it clear that members of Parliament have no authority to override the views of the people obtained at a referendum.

e). the Referendum

The draft constitution shall be submitted to the people for approval, amendment or rejection.

CONCLUSION

In this paper we have sought to indicate our preferred position on certain critical aspects of the constitutional review process. We will use this position paper to engage other layers of civil society and the broad public. We have no illusions that the path ahead is likely to be protracted and heavily contested. However, we proceed on the assumption that every Motswana, political party wants to see the best constitution emerging out of this exercise and that the desire to consult the people is genuine and sincere.

We are a very genuine in taking the positions we take. However, our positions are not cast in stone. We stand ready to embrace any idea that is in the interest of our people.

We are acutely aware that even the most well planned and participatory process will be fraught with challenges with no guarantee of success. However, when public participation is more than an exercise in public relations, it increases the likelihood of achieving a more durable peace and building democratic foundations.

South Africa and Kenya’s constitutional making/review process, from whom we have borrowed some ideas, while not perfect, demonstrated that inclusive and participatory constitution-making can set a precedent for inclusive political processes and lead to a more legitimate social compact. We are clear in our minds that our people are yearning for a constitution arrived at after a meaningful consultation. We will not settle for less. The demands of our people cannot be addressed by behind closed doors horse trading by the elites or unilateral action. We require an inclusive nationwide process of civic education, dialogue, consultation, and negotiation, in which people meaningfully participate and leaders seriously consider their views, seeking acceptable compromises and consensus to achieve a more legitimate social compact and durable peace. Anything less would be a betrayal.