"AG clarifies on automatic succession"

source: Republic of Botswana (18/6/09): TAUTONA TIMES no 16 of 2009
The Weekly Electronic Press Circular of the Office of the President
"Democracy, Development, Dignity and Discipline"

D. From the Archives (1/4/08): "AG clarifies on automatic succession"

The following statement by the Attorney General, Dr. Athaliah Molokomme was published in the 1st April 2008 edition of the Botswana Daily News and otherwise widely cited in full or part in other publications at the time:

"I have found it necessary in view of recent press reports and their potential to create confusion and uncertainty in the minds of the public, to release a statement on the Government's position regarding the constitutional provisions applicable to succession to the Office of President of the Republic.

Before the coming into effect of the Constitution (Amendment) Act No. 16 of 1997, the provisions relating to a vacancy in the office of President were contained in section 35 of the Constitution, which provided in the relevant sections as follows:

'35(1) If the office of President is vacant, the Vice President shall, subject to the provisions of this section, perform the functions of the office of President until such time as a new President assumes office in accordance with this section or section 32 of this Constitution.'

(2) If the office of President-
(a) becomes vacant in circumstances in which there is no Vice-President; or
(b) is vacant whilst the Vice-President is absent from Botswana or is, by reason of physical or mental infirmity unable to perform the functions of his or her office, the functions of the office of President shall, until such time as a new President assumes office in accordance with this section or section 32 of this Constitution, be performed by such Minister as the Cabinet shall appoint. For the purposes of this subsection, a certificate of the Chief Justice that the Vice-President is by reason of physical or mental infirmity unable to discharge the functions of his or her office, shall, in respect of any period for which it is in force, be conclusive and shall not be questioned in any court.

(3) Any person performing the functions of the office of President by virtue of subsection (1) or (2) of this section shall not exercise the power of the President to revoke the appointment of Vice-President or to dissolve Parliament.

(4) If the office of President becomes vacant, the National Assembly shall, unless Parliament is dissolved, and notwithstanding that it may be prorogued, meet on the seventh day after the office of President becomes vacant, or on such earlier day as may be appointed by the Speaker, and shall elect a person to the office in such manner as is prescribed by the next following subsection and, subject thereto, by or under an Act of Parliament.

It should be noted that the foregoing effectively put into place provisions and a procedure for appointing the Vice President to 'perform the functions of the office of President' for a limited period of seven days after which Parliament would elect a substantive President. During this period, the Vice President, or any person performing the functions of the office of President, did so subject to the limitations imposed by 35(3), viz, that s/he could not revoke the appointment of Vice-President or to dissolve Parliament. In other words, such person did not possess the full powers of a President; effectively s/he was a 'caretaker' President for 7 days, under section 35(4). This happened in 1980 when former President Masire took up the Presidency.

The position after the Constitution (Amendment) Act of 1997
The Constitution (Amendment) Act, which came into effect on 29 August 1997 replaced section 35 (1) with the following new provision:

35(1) Whenever the President dies, resigns or ceases to hold office, the Vice-President shall assume office as President with effect from the date of the death, resignation or ceasing to be President.

The above provision ushered in what has now come to be popularly referred to as the automatic succession clause by the Vice President to the Presidency. The important difference between the old section 35(1) and the current one is that while the former provided for the Vice President to perform the functions of the office of President, the current one refers to the Vice President assuming office as the President with immediate effect. Under the current 35(1) therefore, the Vice President becomes the substantive President, unlike the earlier provision which simply gave him authority to perform the functions of that office until a new President assumes office.

The rest of section 35 otherwise remained the same, including 35(3), which is reproduced below for emphasis.

Any person performing the functions of the office of President by virtue of subsection (1) or (2) of this section shall not exercise the power of the President to revoke the appointment of Vice-President or to dissolve Parliament.

A literal interpretation of the above section, read together with the current subsection 35(1), may lead some to believe that even under the current law, a Vice President who comes in as President would have limited powers, viz, that he cannot revoke the appointment of the Vice President, or dissolve Parliament. Such an approach may also lead to a mistaken belief that section 35(4) of the Constitution would apply to the person who assumes office as President under the current dispensation.

This, however, is not the correct position of the law. It will be recalled that the repealed subsection 35(1) provided for a 'caretaker' President, as it were, for seven days, and that it therefore made sense to restrict his powers under 35(3). Because the current provision puts in place a substantive President, subsection

(3) should have ideally been consequentially amended by the removal of the reference to subsection (1). That this was not done is a minor drafting oversight which in my view as Attorney general has no material consequence on the validity of the automatic succession constitutional provision.

To repeat, the intention of Parliament was to introduce automatic succession by putting in place a President with substantive, not limited powers. To fortify this view, it will be noted that the current section 35(3) of the constitution continues to use the old terminology of 'Any person performing the functions of the office of President' instead of the 1997 constitutional amendment to 35 (1) which uses the terminology that the 'Vice President shall assume office as President with effect from the date of the death, resignation or ceasing to be President...'

It is clear therefore that this minor drafting oversight cannot be used to undermine an unequivocal intention by Parliament when amending the Constitution in 1997 to the following effect:
a) that a President who assumes office under section 35(1) shall be a substantive President with full constitutional powers; and
b) that such a President shall not become a '7 day caretaker President' under 35(4) as was previously the case.

This position is further fortified by the Memorandum to the Bill (no 24 of 1996) which stated, among others, that; 'the object of the bill is to amend certain provisions of the Constitution, relating to the tenure of office of the President, succession to the office of the President in the event of the demise or resignation of the incumbent...
Clause 3 proposes to amend section 35 to provide for an automatic assumption of office of President by the Vice President in the event of the death or resignation of the President.'

Throughout the debates in the National Assembly it is quite clear that the intention of Parliament in amending section 35(1) of the Constitution was to provide for the automatic succession to the office of President with full powers to exercise the functions of that office (see 1997 HANSARD page 117).

In the light of the foregoing, the question may arise why section 35(4) of the Constitution was retained, or what purpose it is meant to serve in the current dispensation. The answer to that question can be found in section 35(2) of the Constitution, which is cited fully on page 1. This section provides a solution for a situation where a person has assumed the office of President under the automatic succession clause (35(1)), following which, a vacancy occurs through the death or resignation of the President, and there is no Vice President. In such a situation, section 35(4) would kick in to ensure that there is no lacuna in the Presidency of the Republic, which could trigger a constitutional crisis. It is this President who is subjected to the '7 day rule', and not the substantive President who assumes office under the current section 35(1).

Whilst freedom of expression and debates on constitutional and other legal provisions are healthy and welcome in a democratic society such as ours, it is also important to ensure that the public is not unduly alarmed by narrow and one-sided legalistic interpretations that could create confusion and uncertainty. As all lawyers should know, the traditional literalist approach to statutory interpretation can be unhelpful and misleading. This is especially the case when reading constitutional provisions, which should be given a broader and purposive interpretation.

It is for this reason that sections 26 and 27 of the Interpretation Act were enacted, and provide as follows:

Every enactment shall be deemed remedial and for the public good and shall receive such fair and liberal construction as will best attain its object according to its true intent and spirit.

In the construction of an enactment, an interpretation which would render the enactment ineffective shall be disregarded in favour of an interpretation which will enable it to have effect.

There is no doubt that the true intent and spirit of the Constitution (Amendment) Act No 16 of 1997 was to usher in the automatic succession by the Vice President to the office of President.

*DR A. L. Molokomme is the Attorney General.