Botswana - Government
On September 30, 1966 the country became the independent Republic of Botswana with Sir Seretse Khama its first President. The constitution Botswana adopted on September 30, 1966, provides for a republican form of government headed by the President, with three main organs of government, namely; the legislature, the executive and the judiciary. The legislature, which comprises the National Assembly and the President, acting in consultation on tribal matters, with the House of Chiefs, is the supreme authority in the Republic.
The executive branch consists of the cabinet headed by the President, which is responsible for initiating and directing national policy; the control of government ministries and departments, which are under ministers and are staffed by civil servants who implement government policy, and parastatal corporations which provide certain national services. The judiciary administers and interprets the law of the land and is independent of both the executive and legislative.
Botswana’s constitution provides for the protection of fundamental rights and individual freedom (including freedom of speech, association and the press), an independent judiciary, and equal rights for all citizens. Political parties and trade unions have the right to demonstrate, but such demonstrations tend to be generally peaceful, and large-scale political disturbances are virtually unknown. The government’s policies include strategies that maximize productivity, add value throughout the economy, increase flows of foreign direct investment (FDI) through an attractive and transparent fiscal and operating environment and, intensify marketing Botswana’s products through coordinated export promotion.
The Ombudsman is mandated in terms of the Ombudsman Act to investigate complaints of injustice or maladministration in the Public Service, received from the public (including bodies corporate) and if such complaints are valid to make recommendations to the appropriate authority for compliance therewith. In the event of non-compliance the Ombudsman is obliged to make a Special Report to the National Assembly. The Ombudsman also has jurisdiction over human rights violations, as well as complaints from persons in both legal custody and those in hospitals.
The constitution may be amended in minor ways by a simple majority vote in Parliament. More substantial amendments require a two-thirds majority, and major revisions have to be submitted to a referendum. Several amendments to the constitution were adopted in 1997. The president was limited to two terms of office, and the vice-president was formally made his successor in the event of the death or incapacitation of the president. The voting age was lowered from 21 to 18, and provision were made for Botswana living outside the country to vote.
Botswana's overall success can be attributed to virtuous policy, underlying institutions, and good leadership. A tremendous amount of emphasis was on the adoption of good policy in addition to the maintenance of good institutions. These institutions, such as the Kgotla system, gave Botswana the opportunity to grow incredibly, because community leaders ensured that law and order was observed at all times, while political leaders focused on development of the country. Kgotla system is whereby the leaders consult the general populace whenever there was need for any societal change.
The contitution provides for a powerful chief executive and the country's political culture has tolerated decisive, not to say autocratic, tendencies in its presidents. The President is the personification of the State. In law, the President is head of the executive, commander-in-chief of the armed forces of the Republic, and the President is also an integral part of the legislature. The President has the power to dissolve Parliament, select or dismiss the Vice President, ministers and assistant ministers, and has the prerogative of mercy. In international affairs, the President as the Head of State has the power to declare war and sign peace treaties and to recognise foreign states and governments.
The President is the Head of the Executive arm of government but is not directly elected in his/her own right, but is rather the leader of the party with a majority of directly elected MPs. The President is constitutionally limited to two five-year terms of office.The President is a member of the National Assembly and has the power to address, summon or dissolve it anytime. Normally the President addresses the National Assembly at the opening of a new Parliament every five years, or whenever there is an important national issue, and at the end of the life of Parliament when he dissolves it to call a General Election which leads to a new Parliament.
Considerable power is concentrated in the office of the President. Botswana’s progressive economic policies and regular multiparty elections tend to mask the dominance of the ruling party and an executive so strong that one scholar characterized the government as a ‘quasi-elected “soft” autocracy’ and the governing style as ‘authoritarian liberalism’ [enneth Good, Authoritarian liberalism: a defin- ing characteristic of Botswana, Journal of Contemporary African Studies, 14(1) 1996, pp 29-48].
Some have suggested trimming some of the powers wielded by the President. This conclusion flies in the face of the cultural and historical role of chiefs and the popular concept of the President as a paramount chief, at least among the older generation. It accounts for the deliberate concentration of powers in the Presidency over the years. More recently, however, there is growing public concern in Botswana regarding an over-mighty executive.
The President normally acts on the advice of the Cabinet of Ministers, which is selected by him from Members of Parliament. There are 10 ministers and three assistant Ministers who run ministries and departments of government. Cabinet Ministers, as Members of Parliament, participate in Parliamentary debates but are normally bound by the ethic of collective responsibility. Ministers are also responsible to the National Assembly but the President may appoint or dismiss ministers without consulting the National Assembly or Cabinet.
The Cabinet Office, headed by the Secretary to the Cabinet, under the direction of the President, comprises the Cabinet Secretariat the Cabinet Business Committee and the Cabinet Economic Committee. The Cabinet Secretariat serves Ministers collectively in the conduct of Cabinet business. It operates as an instrument in the coordination of policy at the highest level of Government. Its functions include circulating memoranda and other documents required by Cabinet, preparing agenda for Cabinet meetings, recording discussions taken and safeguarding the security of Cabinet documents.
The supreme legislative authority in Botswana is Parliament, consisting of the President and the National Assembly, and where tribal and customary matters are involved Parliament is obliged to act in consultation with the House of Chiefs.
Botswana has an active parliament, a National Assembly, which comprises 57 directly elected MPs plus a further four specially nominated members by the President and subject to parliamentary approval. Elections take place every five years, and the ruling Botswana Democratic Party (BDP) has won successive elections since independence in 1966, with three other parties currently represented in parliament.
The main functions of Parliament are (a) to pass laws regulating the life of the nation and (b) to scrutinise government policy and administration and to monitor government expenditure. The National Assembly is a representative body elected by universal adult suffrage and consists of men and women from all sections of society. There are 40 seats in the National Assembly (32 of them contested, four for specially elected members, two for the Attorney-General and the Speaker, and the other two recently created.)
A notable development in the country’s political landscape was made when Parliament took a major decision to increase the number of seats of elected members of the National Assembly by seventeen (17). The distribution of the seats was done subsequently by the Delimitation Commission which, in terms of the Constitution, is empowered to do so independently of the executive, the Legislature and the Judiciary. The Ninth (9) Parliament had a total number of fifty-seven (57) elected members against the previous forty (40).
General Elections are held after a Parliament has been dissolved and a new one summoned by the President. If a vacancy occurs in the Assembly by reason of death or disqualification of a member, or a result of such other circumstances as may be prescribed by the Constitution or any Law or the Standing Orders of the Assembly, a by-election takes place.
For electoral purposes, Botswana is divided into constituencies, each of which returns one member to the National Assembly. To ensure suitable representation, the Judicial Service Commission is required at intervals of not less than five years and not more than ten years to appoint a Delimitation Commission to determine whether any alteration to existing constituency boundaries is necessary.
Anyone, man or woman, who is entitled to vote and has reached the age of 18 can stand for election - provided the individual is not disqualified by reason of having been certified insane or unsound mind, does not have a death sentence imposed on him, or has not been declared insolvent in any part of the Commonwealth, or being under a sentence of imprisonment exceeding six months.
House of Chiefs
The House of Chiefs, to which the eight Setswana paramount chiefs have automatic membership, advises the government on matters of custom and tradition, including review of draft bills before their consideration by Parliament. Botswana conducts a unique form of communication and consultation with its citizens through the medium of the kgotla, traditional communal assembly at which government policies can be discussed.
The House of Chiefs consists of eight ex-officio members, four elected and three specially elected members. The ex-officio members are the substantive holders of the office of Chief of the Barolong, Bangwato, Balete, Batlokwa, Bakwena, Bakgatla, Bangwaketse and Batawana. The elected members are persons elected from among their own number by persons holding office of Sub-Chief in the Chobe, Francistown, Ghanzi and Kgalagadi districts. Specially elected members are elected by the ex-officio and elected members of the House among people who have not been actively engaged in politics in the preceding five years.
The ex-officio members remain members of the House of Chiefs for as long as they continue to perform their chiefly functions. Membership of elected and specially elected members is renewed every five years following the dissolution of Parliament, which comes after every five years, while that of ex-officio members is more or less permanent in the House.
There is no definite schedule of the meetings of the House of Chiefs, the time and place of convening being determined by the Chairman of the House. The House of Chiefs, however sits whenever the Government or the National Assembly has referred a bill to it or whenever it has important business to transact, or at least once a year.
The judiciary consists of the Court of Appeal, High Court and Magistrates courts. In terms of section 95(2) of the Constitution, judges of the High Court shall consist of the Chief Justice and such number of other judges as may be prescribed by Parliament. According to section 96 (1), the Chief Justice shall be appointed by the President and under section 96(2) other judges of the High Court are appointed by the President acting in accordance with the advice of the Judicial Service Commission.
According to section 99(2) judges of the Court of Appeal shall consist of the President of the Court of Appeal, and such number, if any, of justices of appeal as may be prescribed by Parliament and the Chief Justice and other judges of the High Court. In terms of section 100(1) the President appoints the President of the Court of Appeal and under section 100 (2) other Judges of Appeal are appointed by the President with the advice of the Judicial Service Commission.
Botswana has a dual legal system, comprising customary law and what is usually termed received law (or common law). Customary law is the law of any particular tribe or tribal community in so far as it is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice. Customary law is not written and has variations among different communities. The received law consists of English law and Roman Dutch law as it was in force at the Cape on 10th June 1891 and as amended by statutes from time to time and interpreted by the Courts. The two systems co-exist although there are differences in the law and its application.
Since independence the Customary Courts have derived their authority from the Customary Courts Act no. 57 of 1968. The Customary Law Act of 1987 also lays down rules which are meant to guide the courts in deciding whether customary or common law applies. The customary courts have jurisdiction to deal with a wide variety of matters of civil and criminal law such as financial disputes, petty theft, marital disputes, divorce (where the couple is married under customary law), livestock theft, insults and defamation, among others. The jurisdiction of the customary court is limited by the potential penalties or fines to be imposed, or the particular types of crimes or disputes to be adjudicated. When dealing with criminal matters the courts follow the Customary Court Procedure Rules.
Customary law is administered by the Kgosi, plural dikgosi (traditional leader of a tribe), Headman or Court President who confers with the elders of the community who are conversant with customary law and practice. Cases are generally dealt with at the kgotla (a public meeting place – plural dikgotla). Dikgosi will often become involved with dispute resolution outside the court system where there is room for discretion in the way they exercise their powers (legal or persuasive).
By law women have the same civil rights as men, but societal discrimination persisted. The country has a dual legal system consisting of formal law derived from the constitution and customary law based on tribal practice. A number of traditional laws enforced by tribal structures and customary courts restricted women’s property rights and economic opportunities, particularly in rural areas. Marriages may occur under one of three systems, each with its own implications for women’s property rights. A woman married under traditional law or in “common property” is held to be a legal minor and required to have her husband’s consent to buy or sell property, apply for credit, and enter into legally binding contracts. Under an intermediate system referred to as “in community of property,” married women may own real estate and other property in their own names, and the law stipulates neither spouse may dispose of joint property without the written consent of the other. Women increasingly exercised the right to marriage “out of common property,” in which they retained their full legal rights as adults. Polygyny is legal under traditional law with the consent of the first wife but was not common.
The country is divided into 9 administrative districts. In each of these districts, there are 9 district councils. In urban areas there are 2 city councils and 4 town councils. These councils fall under the Ministry of Local Government and are responsible for primary education facilities, health facilities (clinics, health posts etc), construction and maintenance of some rural roads, social and community development, village water supply and public health.
On the other hand, some central government ministries have decentralized some of their functions by creating offices of their Ministries in the Administrative Districts, for example, Water Affairs, Immigration and Citizenship, Agriculture, Civil Registration, Labour and Social Security. In these Administrative Districts, there is an office of the District Commissioner whose main role is to coordinate all district development activities.
Local Government in the Bechuanaland Protectorate had a long and honorable history, its purpose and significance have changed in various ways from time to time and the use of the term “LG” itself was relatively new in Bechuanaland, but from the earliest days, of the Protectorate it has been possible to distinguish between national and local administration and to identify the latter closer with specifically local interest and needs. To a great extent the local unit has been the tribe and almost in-variably the local authority has been the Chief. The history of LG was almost entirely associated with the Chieftainship.
Traditionally, the tribal Chiefs were responsible for administering tribal land in Botswana. In 1968, Land Boards were created under the Tribal Land Act. The Land Boards started operating in 1970. At the time of their creation, Land Boards were administratively headed by the Council Secretaries thereby seen as Surbodinate to District Councils.
With the increasing work loads and responsibilities of the Land Boards, Surbodinate Land Boards were established in 1973, to decentralize the services of the Land Boards and place them closer to the people. However, in 1989 the Land Boards became independent and today there are twelve Land Boards and thirty-seven Surbodinate Land Boards. They are mandated to ensure the wise use fair distribution of Land to all citizens and residents of Botswana in allocation of Land for residential, commercial, Industrial and Agricultural purposes.
When these Local Government bodies were established the traditional tribal leaders were encouraged to play a vital role on them and in the majority of cases the Local Chief became the Chairman as well as the Chief Executive of the Local Council. The Chiefs have therefore been offered the opportunity to preserve their dignity and prestige and to serve the people of Botswana.
The position of the Chief in a modern African State is not always as easy one, but a Chief’s chance of maintaining a useful identity and future depends to a large extent on himself and on his willingness and capacity to make the most of what was offered to him. A Chief who declined to cooperate with a Local Government body when it was operating in the fields which had been assigned to it by the democratically elected legislature soon became a person shorn of any effective influence or power and of no real importance in the land.
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