La séparation des pouvoirs au Botswana/ The separation of powers in Botswana

(Liens en anglais/ links in english)

Voici une lettre d’opinion de Michael Dingake dans un journal du Botswana : Mmegi. Il nous donne un bon cours de science politique.

Here is an opinion letter from Michael Dingake in the Botswana newspaper: Mmegi. He gives us a good course on political science:

Michael Dingake:

The paradox underlying the separation of powers A government system in a democracy is a rather complex network of organs, institutions, departments, divisions, functioning through a series of laws, regulations, procedures and customs, that reinforce each other and demarcate space within which each segment has to function, in pursuit of the objectives of government.

Government is not easy to define. Very often the average person mixes up government authority with persons representing that authority. At times one organ of government is regarded as the sole government.

So who is government and what is government and how does it function? One of my colleagues when I was an MP, was fond of taunting me: “Dingake, we (BDP) are the government, “re a busa,” and you can make all the noise you like, it won’t change a thing.”

My colleague was right and wrong. Yes, his party was in power because it had the majority in Parliament and decisions were taken by majority vote. But the fact that there was an opposition in Parliament meant that the opposition was part of government, for Parliament is a constitutional organ of government.

Government in a democracy is composed of three distinct organs, the legislative, the executive and the judiciary. These organs are separate but interrelated. They perform specialist but related functions: Parliament makes laws for order, peace and good governance; the executive executes and administers the laws adopted by the legislature, to provide public service and the judiciary interprets and explains these laws adopted by Parliament and implemented by the executive, whenever conflicts arise in the application of the laws. The judiciary ensures that laws and their practical application comply with the constitution and serve the public interest.

When political analysts and observers speak of the separation of powers, they do not imply that the organs are completely autonomous. They cannot be, for the three of them perform an integrated government function of serving the public interest. Were one organ, constituted by the same body of persons, to perform all the respective functions – legislate, implement and assess their handiwork, they would find they hash things up, in a manner hard to imagine.

What must be borne in mind however is that each of the organs of government is supreme in its sphere of operations: Parliament in lawmaking, the executive in implementation and the judiciary in interpretation and adjudication where and when necessary. Each branch is supreme in its arena. But within this intricate network of relationships, there exists inbuilt overlaps to effect checks and balances, so that exuberant performance of the duty of one, does not lead to excesses through oversight. In spite of the constitutional checks and balances mechanisms, encroachment of one branch into another’s territory is a common phenomenon. The executive, due to its direct and active involvement in public affairs, has the tendency to encroach in “foreign” turf even where the constitution is explicit on duties of each branch and the lines are clearly delineated.

Take the US constitution. Only Congress has power to declare war. Yet America has fought three undeclared wars: the Korean War, the Vietnam War and the Iraq War. This has come as a result of overlapping responsibilities on war shared by Congress and the Executive under the constitution. While Congress has power to declare war, the President is the commander-in-chief of the armed forces! Moreover it must be borne in mind that the organs of government are always at loggerheads whenever they try to hold and defend own turf from encroachment by another branch.

In the incessant battle for control of turf, it is often the stronger in assertiveness, wiliness and relentlessness, who wins. The US presidency has won the “war responsibility” because of strong individual presidency versus weak congresses, weakened by partisanship, ideological perceptions of anti-communist power play during the cold war.
A re-look at our own situation will show that the presidency is winning greater influence over Parliament, because the presidents of this republic have been more assertive, more wily and more relentless than the meek and weak Parliaments, so far. This tendency has been reinforced by our cultural background of deference to the senior/kgosi or president who in our current situation represents the senior in birth or status. We are a people at cultural crossroads, trapped in fear, indecision, lack of self-confidence and the chimera of belief and unbelief.

What does the Attorney General mean by saying Honourable Maoto’s motion is binding on Parliament alone, when the motion specifically orders the negotiations conducted by executive agents to stop? I know legal jargon is often unfathomable and unintelligible to laypersons. However, if patiently explained to one, I believe even the most obtuse can begin to appreciate. I bet the new legal jargon by the A.G will require a true law genius to follow. This interpretation by the A.G. implies that in spite of the letter and spirit of Maoto’s motion, ordering the executive to suspend negotiations on privatisation of Air Botswana, all that is but hot air, signifying nothing! Czypionka’s self-serving support obfuscates matters even more

To my knowledge, the only motions that bind Parliament alone, are those that have to do with the business of Parliament itself (standing orders), not those which implicitly or explicitly order the executive to act. It can be stated without fear, favour or contradiction that the A.G’s opinion was simply that: her personal opinion solicited by the executive to save face in its defiant attitude of Parliament! The A.G is not the judiciary. The Speaker of Parliament has already got a different opinion from Honourable Lizo Ngcongco, the official adviser to Parliament. Other lawyers agree with Ngcongco. The A.G’s opinion is null and void. That should not be the end of the story. Should the executive, flattered by the A.G’s opinion and emboldened by its default victories of the past go ahead and continue its negotiations with SA Air Link, then the executive bluff must be called and the matter must be placed before the judiciary for final settlement.
Otherwise the executive, already bloated with stolen powers from the legislature and by implication from the people, will become the “monarch of all it surveys.” And what happens to separation of powers, checks and balances and democracy?