Dudes and Dude-ettes:Honestly, I don't have much for you today - I have to apologize, I know I've been giving you precious little to mull over, chew on, etc. My dissertation work has shifted from the stage of data acquisition to the stage of writing, at least for the near future, and that means I shift from marking up spreadsheets and browsing the web to writing, as I do, for eight to twelve hours a day. That means I don't have much time to interact with the world in such a manner, shape, and/or form as to really blog much. As the say in Argentina, lo siento.
You don't believe me, do you? Well, dig this - after I read and annotated the complete constitutions of both Botswana and Namibia (and they are way longer than that of the good ol' US of A) I wrote the following (useless to you, probably) mess:
Institutional Arrangement of the Branches of
Government and the Legislative Process
Contrasting and comparing any two states’ formal institutional arrangements is a problematic task in the contemporary age – the American constitutional model, with its complex system of checks and balances has made its mark on the institutional systems of many states hoping to avoid slipping from republic or democracy into tyranny. Namibia and Botswana are, as shall shortly be made clear, no exception to this rule. In order to deal with the inherent complications in this task, I have divided this section of my study into three subsections. First, I will review the formal institutional arrangements of Namibia. Second, I will review the formal institutional arrangements of Botswana. Finally I will list and explain the fundamental differences between the two, commenting on the theoretical implications of each.
Also, in an additional note, for the first two subsections below, citations are to the relevant elements of the various nation-states’ respective constitutions.
Namibia
Namibia’s political system is divided into three independent branches whose relation to one another is very similar to that of the United States of America. One corner of the Namibian political pyramid, that of the executive branch, is built around a president. (Chapter V, Article 27, Paragraph 1). The president attains office through direct election by at least 50% of the voting population – failure to achieve 50% in the final vote necessitates additional, succeeding ballots (Chapter V, Article 28, Paragraph 2, Sections a, b, and d). The president’s term of office is five years (Chapter V, Article 29, Paragraph 1) – originally there was a two-term limit, but recently the National Assembly amended the Constitution to allow a third term (First Amendment). The president of Namibia is ineligible for prosecution during office, but if impeached by the National Assembly (Chapter V, Article 31) is eligible for criminal (but not civil) charges with regards to the basis of the impeachment.
Namibia’s president has a number of key responsibilities. Not only is the president the commander-in-chief of the Namibian military and police forces, he or she is additionally the head of government, that is to say the head of the bureaucracy. He or she is also responsible for reporting the state of the nation at least once a year to the parliament, specifically during the budgetary process. On the international front the president also has the power to accredit (or fail to accredit) diplomatic personnel and is responsible for negotiating and signing (though not ratifying) interstate agreements. The president also has the ability to establish new agencies and appoints the Prime Minister (the chief of parliamentary procedure in the cabinet), the various ministers and deputy-ministers (that is to say the administrators of the various ministries and members of the Cabinet), the Attorney-General, and so on, as well as the members of the various courts and other commissions (including the heads of the military and police forces and prison system) (Chapter V, Article 32).
Aside from the ability to write and submit new legislation to the parliament, the president has two other key legislative powers. First, he or she can nominate up to six ex officio members of the National Assembly and, quite significantly, has the right to propose legislation to the parliament directly (Chapter V, Article 32, Section c and Chapter VII, Article 46, Paragraph 1). Second, and far more significantly, the president has the ability to veto (that is to say “withhold assent”) from any piece of legislation passed by the National Assembly by less than two-thirds of its full membership (Chapter VII, Article 56). An interesting alternative to this, in some cases at least, is the president’s ability to send the legislation to the High Court (discussed below), for consideration in terms of constitutionality (Chapter VII, Article 64, Paragraphs 1, 2, 3, and 4) – the effect is definitely not an abject veto, but potentially a way around the 2/3rds override rule in at least some cases.
The cabinet, it should be noted, beyond merely being an advisory and administrative tool, also has the power to initiate bills for submission to the National Assembly (Chapter VI, Article 40) – though the significance of this point in light of the president’s similar power is easy to overstate.
The National Assembly of Namibia constitutes that nation’s legislative branch and primary budgetary-approval organ (Chapter VII, Article 63, Paragraph 1). Specifically, it is a unicameral body made up of seventy-two members whose membership is elected directly by the public using a proportional system (Chapter VII, Article 44 and 46, Paragraph 1 and Article 50). Voting in this body is done, for everything save constitutional amendments, using a simple majoritarian method (Chapter VII, Article 67). Members of the National Assembly can only be removed from office either due to unfitness or through a sentence or commission of guilt in a felony case, or if they take a conflicting position in another assembly or body of government, if they miss sittings of the Assembly for ten consecutive days without having received special leave, or, of course, if they are voted out. The chief of parliamentary procedure in this house is a speaker chosen from among the their numbers (Chapter VII, Article 51).
In the face of Namibia’s strong presidency some, though limited, checks were established in the Constitution. For instance, any person or persons appointed to any position in the government and/or Cabinet may be terminated from their office by a 2/3rds vote of parliament (Chapter V, Article 39). Also, the National Assembly has the right review, consider, and criticize any action of the president if 1/3rd of representatives desire to do so, and further they have the right to overturn any action of the president that is otherwise within his or her prerogative with a 2/3rds vote (Chapter V, Article 32, Paragraph 9). The National Assembly furthermore has the power to ratify (or fail to ratify) any international agreement negotiated and signed by the president (Chapter VII, Article 63, Paragraph 2, Section d).
One of the most interesting elements of the Namibian political arrangement is the ability of the president to dissolve parliament, ostensibly on the advice of the cabinet (Chapter VII, Article 56). This constitutes a sort of executive no-confidence vote. In essence this process allows the president to, potentially, take advantage of changing political circumstances, but not without consequence to his or her person – should the president dissolve parliament, his or her term comes effectively to an end and the president must, along with parliament, stand for reelection immediately. While this principle is relatively common among traditional parliamentary systems, it is far less common among presidential systems in which the legislative body is, as in this case, more than a mere rubber stamp.
The Namibian judiciary is a fully independent judiciary composed of three key levels – the Supreme Court (which has original jurisdiction on constitutional matters and is composed of a Chief Justice and at least three other presiding justices – the number of presiding justices may change over time and in response to unique necessities), a High Court (which is, in essence, a sort of national appeals court and which consists of a Judge-President and an indeterminate number of other presiding justices), and the various lower courts of Namibia which are nothing more than simple district-based courts (Chapter IX, Article 78). As discussed above, justices are appointed by the president of Namibia and may be prevented from attaining or remaining in office through a 2/3rds vote of parliament.
The boundaries of regional and local governments in Namibia (again, a unitary state) are delimited by a body known as the Delimitation Council, an inter-branch organization consisting of a judge from either the Supreme or High Court and two presidential appointees. Each region is then afforded a regional council whose composition is determined by election (one representative per constituency in the region, with each region being made up of no less than six and no more than twelve constituencies). Each regional and local government has the right to both raise revenue and exercise whatever powers are designated to them by congress and the members of these various units are elected democratically by their inhabitants (Chapter XII).
Namibia also has an interesting consultative body known as the National Council that acts as a go-between agent between regional and national organs of government. Members of the National Council are appointed by the various regional councils for a period of six years – a Chairperson, elected from within their numbers is their head of parliamentary procedure (Chapter VIII, Article 71, Paragraph 2 and Article 73). This body has four primary functions. First, it reviews all legislation passed by the National Assembly and comments on it before it is formally provided to the presidency. Second, it reports on the conditions and opinions of the various regions as bodies to the National Assembly. Third, it has the power to recommend legislation to the National Assembly, and, finally, the National Council may conduct research and investigative efforts if so empowered by the National Assembly (Chapter VIII, Article 74). In the process of reviewing legislation, it may recommend to the president that said legislation is unconstitutional or should be vetoed and, alternatively, it may send the legislation back to the National Assembly with one or more amendments recommended.
Botswana
The executive power of Botswana lies in the president and his or her cabinet. Rather than, as in the case of most presidential systems, being elected by the general population, the president of Botswana is elected by the National Assembly (the lower house of the Botswanan legislature) (Chapter IV, Part I and III). The president, it should be noted, may serve no longer than an aggregate of ten years and, should any circumstance arise that would make him or her no longer a valid candidate for parliamentary service, must withdraw from office. Also, in the event that parliament dissolves for any reason, the president must stand for reelection at the hands of the new parliament (Article 34, Paragraphs 1, 2, and 3).
All this said, in the exercise of power, the president is functionally independent of the parliament which appoints him (Article 47, Paragraph 2) – though, it should be said, parliament may transfer any executive powers it wishes to other offices (Article 47, Paragraph 3). Two key and fundamental exceptions to this parliamentary prerogative, however, exist. One is the president’s exclusive right to the supreme command of Botswana’s military forces (Article 48). The other is the president’s exclusive right to introduce bills having to do with taxation, revenue creating, budgetary payments, and debt (Article 88, Paragraph 1). The president of Botswana also has the “prerogative of mercy”, that is to say the right to pardon criminal offenses and/or to substitute a less severe form of punishment than that imposed by the criminal process (Article 53).
Of course, the Botswanan president cannot be presented with criminal while serving in office, yet upon the cessation of his or her office, the president may be charged accordingly with crimes of which he or she is accused of committing during the period of his or her tenure (Article 41, Paragraphs 1 and 2).
Botswana’s presidential veto power is particularly unusual – it exists not to prevent the passage of legislation so much as to force legislators to reconsider legislation. In the event a particular item is passed, the president may withhold his assent. Should parliament not revisit and once more pass the bill within six months, the bill fails, but if parliament passes the bill once more during that time and the president does not, within 21 days, dissolve parliament, the bill passes (Article 87).
The ministers of the various cabinet-ministries are appointed by the president (with National Assembly approval) from members of the parliament in general, though the president has the right to nominate up to four ministers who are not members of parliament who have skills or qualifications uniquely preparing them for the position (Part II, Article 42). The cabinet’s functions are, simply put, to advise the president with respect to policy matter and to further fulfill the will and orders legislated in the National Assembly – that said, the powers of the ministers are to be specifically detailed by each president (Article 50).
The Botswanan legislature is, at least ostensibly, bicameral in form, though the vast majority of power resides in the lower house, that is to say in the Parliament. Parliament is composed of 57 publicly elected members who constitute the National Assembly, four “specially” elected members (chosen by the parliament itself), the President, and the Attorney-General (who is ex officio)(Article 58). The head of parliamentary procedure for the body is the Speaker of the National Assembly, an individual elected for this purpose by the National Assembly either from among its members or, if it so chooses, from among qualified persons outside that body (Article 59). Each member of the National Assembly is elected from a constituency that is delimited and defined by the Delimitation Commission, that is to say through direct district elections (Article 62). The Delimitation Commission is composed of a high member of the judicial branch (who is chair) and a series of other persons chosen by the National Assembly who are not (and have not been for at least five years) involved in politics in either an electoral or appointed fashion (including running for but failing to acquire office)(Article 63). Members of the National Assembly must stand for reelection if Parliament is dissolved for any reason (Article 68).
The president, it should be said, may dissolve the parliament whenever he or she wishes and, in the event the president does not dissolve parliament, the the members of parliament must stand for reelection at least once every five years (Article 91). The key exception to this rule is that, during periods of declared war the parliament may delay elections for periods of a year at time, though they may do this no more than five times. In the instance of a dissolution the president himself or herself will stand for election by that body again. Alternatively, the parliament may at any time, with a simple majority vote, declare that it has no confidence in the president and his or her government (cabinet), forcing just such a reelection process. That said, four days after a no-confidence vote parliament itself is dissolved and must stand for reelection (Article 92).
The upper house of the Botswanan legislature is the House of Chiefs. The House is composed of fifteen members: the eight Chiefs of the primary Tsowana tribes (who serve ex officio), the four sub-chiefs of Chobe, the North East, Ghanzi, and Kgalagdi, and three persons elected by the other twelve members who, it should be noted, have not been active in politics for at least five year (Part III, Articles 77, 78, and 79). If parliament dissolves, the House also dissolves, though upon reconstitution only the Specially Elected Members are necessarily up for reelection. The other chiefs are up for election according to schedules set up among the various peoples and/or districts the represent, and therefore are not considered in the constitution.
The function of the House of Chiefs is elementary enough. It exists, primarily, to consider bills on the powers of Chiefs, Sub-Chiefs, and Headmen; the powers and organization of traditional courts; and the organization and/or communal property of the various tribes. The House then develops resolutions that either support, protest, or recommend amendments to legislation on these matters and provide these to the National Assembly for consideration before their final votes. Additional responsibilities of this body include to advise any ministers who might seek its opinion with regards to any subject and to discuss the implications of any executive or legislative activity in terms of its possible effects on any of the tribes or the tribal system as a whole. In other words, the House of Chiefs exists only to guarantee that the government is not ignorant of the implications of these particularly influential and powerful interest groups (Article 83).
Aside from this “presidential” system that is really a variation of the parliamentary system, one finds that Botswana has a fully independent judiciary. The judicial system of this state is composed of a High Court and Court of Appeal which, intriguingly, seem to be nearly coequal in many regards, and those various lower courts which parliament deems necessary to for the execution of justice.
The High Court is the supreme court of the land and has original jurisdiction over literally any case it cares to accept (Chapter VI, Article 95). The head of the court’s parliamentary procedure is the Chief Justice who has the power not only to determine where the court shall sit, but further the rules by which the court shall operate, though with the advise of an advisory committee. The president of Botswana appoints the Chief Justice and other members of the High Court, under advice of the Judicial Service Commission from among persons who have already held some other judgeship or position as an attorney or magistrate, or is a professor of law (Article 96). Judges of the High Court may only be removed by the president upon the recommendation of a tribunal of at least three members, all of high judicial office (current or previous), in which they are found either incapable or unsuitable (Article 97. Additionally, in questions of whether or not any election or appointment has been properly conducted, the High Court has the power to adjudicate the matter (Article 69).
The Court of Appeal is also chaired by the Chief Justice; all other justices are appointed or duly removed in a manner indistinguishable from those listed above for the High Court (Articles 99,100, and 101). It exists, specifically, as a high court, though not the court of final appeal, to rehear cases in which there is compelling evidence that error may have been made at a lower court. The constitution, interestingly, asserts that the Court of Appeal may hear cases from the High Court dealing with constitutionality, save in the instance of the constitution question dealing with the election of members of parliament (Article 105) – this in spite of earlier constitutional assertions that the High Court is the supreme court.
The constitution of Botswana makes little or not mention of the nature by which local or regional governments are established. Rather, the form and function of local and regional governmental bodies are dictated by the National Assembly, often through the guise of the Ministry of Local Government (formerly part of the Ministry of Local Government and Housing). In general, local governments are democratically elected or are the product of traditional mechanisms of election, districts are administered by central government appointees, the Ministry and its various organs coordinate between these levels.
Institutional Variations and Similarities
To begin our summation of the institutional differences between Namibia and Botswana, I would like to discuss the key point that both states are unitary in nature. Despite the fact that both states are multicultural, multinational, and ethnically diverse and despite the fact that both states are geographically large and diverse in terms of regional specialization, founding elites in both chose the unitary model – their concern, in other words, was more about retaining political stability and territorial integrity than it was about guaranteeing representation of minorities and ethnic or regional interests. Furthermore, both states have dealt with this inevitable concern through the construction of constitutionally mandated bodies – the National Council in the case of Namibia and the House of Chiefs in the case of Botswana – that have sweeping consultative powers, but virtually no ability to legislate in and of themselves. Though the former draws its membership in a geographic fashion and the latter directly from tribal elites, the effect is the same – to allow regional and ethnic interests (given that minorities in both states tend to live not only alongside majorities in municipalities but also have their own rural, ethnic enclaves) to be heard. In other words, both states guarantee the power of particular political-economic-cultural interests without a meaningful power of veto from minority political-economic-cultural interests, but with a built-in valve for allowing these minority interests to vent themselves.
As to the legislative bodies, regardless of the claims of Botswana, both states are functionally unicameral – their primary difference lies in the method by which their constituent members are chosen. Namibia’s proportional representation, on the one hand, and Botswana’s direct election system on the other, while having the potential to yield substantial policy variances, probably, in all likelihood, have not due in large part to the fact that neither state has truly competitive elections. This is not to say that the elections are flawed, but rather that both states’ legislatures have, since their inception, had only one majority party (in both cases with overwhelming majorities) – SWAPO in Namibia and the BDP in Botswana. Variance in behavior, thus, may largely, at least unto this point, be described more as a product of variance between these parties than variance between their states’ legislative institutions.
With regards to executive power, the situation is simple: Namibia has relatively strong, independent presidency; Botswana a parliamentary system in which the head of government has the title “president” and is, in effect, is a slightly stronger than usual prime minister. Institutionally this is the most important variance between the two states.
Most specifically, this is highlighted by Namibia’s president’s strong veto power and Botswana’s presidents relatively weak veto power and the direct election of the Namibian president virtually the “election” of the Botswanan president from the National Assembly. Of course, in both states the president is both head of state and head of government, not to mention commander-in-chief, and in both the president has the ability to dissolve the legislature and has sweeping powers of appointment, both in the bureaucracy and the judiciary. Also, presidents in both states are immune to prosecution during their presidencies. Ultimately, then, we must state that the fundamental variance between the power of the two executives lies in the ability of their legislatures to see them off – if the Namibian National Assembly dissolves the government, the president has a good chance of returning by popular acclaim. If the Botswanan National Assembly does the same, the odds that the president will return are slim to none (without a substantial change in that same body’s make-up).
Beyond some relatively minor variances in terms of appellate jurisdiction, the institutional arrangements of Botswana and Namibia’s fully independent judiciaries in both states, with fluid membership structures are virtually indistinguishable. Both are founded definitively in the English-Dutch legal tradition, utilizing both common law precedent and Roman code style law (though Botswana’s constitution explicitly forbids the use of common law on capital cases). Also, both states employ relatively fluid judicial institutions, assuming that special instances will inevitably arrive and unique judicial solutions should be available for dealing with these situations.
And of course both states afford both the parliament and the president the right to dissolve the elected/appointed state, though only at the cost of their own position. The result is a system in which both branches of government have a powerful threat to wave at the other, but an equally powerful reason to use this power only in the most significant of circumstances.
Pretty boring, eh? Yeah. I know. But then, I bet you get didn't even read the whole thing, so no harm, no foul, eh?
Oh, if there are typos, it is cause I haven't edited yet. Geez. This is a blog. Anything political is required to be full of errors and misleading, unresearched crap.(Eric smiles aside at the camera, having pointed out that people who get their news only from ideologically-slanted, underresearched blogs are making a horrible, horrible mistake)
Also, there's a tapir.
1 comment:
I like the tapir.
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