Mmegi Online :: Was Parliament’s amendment of the Standing Orders Constitutional? (Part I)
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Was Parliament’s amendment of the Standing Orders Constitutional? (Part I)

The 10th Parliament’s amendment, made as recently as August 2014, of Parliamentary Standing Orders resulting in provisions that the elections for the Vice President, and the Speaker and Deputy Speaker of the National Assembly shall be by secret ballot has thrown Botswana into a constitutional crisis.
By Staff Writer Fri 31 Oct 2014, 15:30 pm (GMT +2)
Mmegi Online :: Was Parliament’s amendment of the Standing Orders Constitutional? (Part I)








This, after government waged a legal challenge on the amendment’s constitutionality, a process which not only delayed the swearing in of Members of Parliament (MPs), but also halted the election of the Vice President, and the Speaker and Deputy Speaker of the National Assembly.

I need to hasten to state that though one may not agree with government’s action, one has to admire the fact that, as confirmation for its respect for the rule of law, government is using the courts, and not a presidential decree, to pray for the amendment’s rescission.

In this article, I, guided by principles of Constitutional Law, consider the constitutionality of the aforesaid amendment.

I also rely on the principles of Administrative Law to investigate the procedural propriety of the amendment.

In the next article, which will hopefully be after judgment has been entered, I analyse the judgment and make suggestions on needed constitutional or legislative amendments, if any.   

Reportedly, it is the Attorney General’s case that the new Standing Orders are ultra vires the Constitution in that not only did they make additions to the already existing provisions, but also made amendments and modifications to those sections contrary to Section 89 (5) of the Constitution. It is the Attorney General’s further argument that “the amendments to the Standing Orders have brought about substantive amendments to the Constitution by introducing additional requirements for the endorsement of the Vice President and the election of the Speaker and Deputy Speaker.

The existing provision in terms of the Vice President is section 39(1) of the Constitution which provides that “there shall be a Vice President who shall be appointed by the President from among the elected Members of the National Assembly…, which appointment shall be endorsed by the said Elected Members”. The Constitution, as the grand norm, did not and need not have burdened itself with the trivialities of the manner of such endorsement. That is a function for an Act of Parliament and/or delegated legislation, hence the Parliamentary Standing Orders.

The existing provision in terms of the Speaker is section 59(1) of the Constitution which provides that “there shall be a Speaker of the National Assembly who shall be elected by the Members of the Assembly from among persons who are Members of the Assembly or from among persons who are not Members of the Assembly”. Again, the manner of election is not and need not have been prescribed by the Constitution.

The existing provision in terms of the Deputy Speaker is section 60(1) of the Constitution which provides that “there shall be a Deputy Speaker of the National assembly who shall be elected from among the persons who are Members of the Assembly…” Similarly, the manner of election is not and need not have been prescribed by the Constitution.

That the 10th Parliament had the power to enact and/or amend the Standing Orders cannot be in dispute. In fairness, it is not and cannot reasonably be the Attorney General’s case.

That much is incontrovertible because in terms of section 76(1) of the Constitution, “subject to the provisions of the Constitution, the National Assembly may regulate its own procedure”. In terms thereof, Parliament properly resolved to regulate its procedure of electing the Vice President, Speaker and Deputy Speaker though a secret ballot. The question is: did Parliament exercise its constitutional powers with propriety? We attempt to answer this question and other incidental questions hereunder.  

The first question is: Does the provision in the Standing Orders that election of the said officials shall be by secret ballot amount to making additions, amendments and modifications to sections 39(1), 59(1) and 60(1) of the Constitution by Parliament? It is my view that they do not because when Parliament amended the Standing Orders it in no way purported, either expressly or impliedly, to amend the Constitution.

It simply exercised its power of making and/or amending subordinate legislation to regulate its own procedure. Amending the Constitution is not something that can be done impliedly. It is trite law that it can only be done expressly, in our case in terms of section 89 of the Constitution.

The other question is: Did the amendments to the Standing Orders bring about substantive (i.e. functional and practical) amendments to the Constitution by introducing additional requirements for the endorsement of the Vice President and the election of the Speaker and Deputy Speaker? The word requirement entails qualifications that one has to meet in order to qualify for something.

The question is: Can a provision on the manner or method of bringing somebody who is already legible to hold a particular office to office be regarded as an additional requirement?

The Standing Orders, as amended, do not require the prospective Vice President, Speaker, and Deputy Speaker to do anything else to attain such positions. The Standing Orders merely prescribe a method of, being already qualified and fit and proper to hold such office, being brought into office through a specified method of election which is a secret ballot. No additional requirement is, therefore, introduced by the amendment.

Assuming without conceding that government

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is right that amending the Standing Orders to introduce a secret ballot for the election of the said officials is tantamount to amending the Constitution, another question ought to be asked.

According to government, was the provision before the amendment (i.e. the election by show of hands), which government now seeks to reinstate, not equally ultra vires the Constitution? Did it not equally unlawfully amend the Constitution? The answer ought to be yes. If it is or it did, why then is government seeking to substitute an equally defective provision with another defective provision? Are both provisions not fruits of the same poisoned tree?

That is not all. If government’s argument is that Parliament should not have, through the Standing Orders, prescribed the manner of electing the said officials, how and/or where then will the manner or method of election be prescribed? Should it be in the Constitution itself? In other words, is it the Attorney General’s argument that prescription of such a method should have been done by amending the Constitution?

That cannot be. If it were, ours would be a trivial Constitution which contains mundane details and the Constitution would be at the risk of frequent amendments. Or, is it the Attorney General’s argument that the manner of election should have been prescribed in an Act of Parliament? To that I can concede, but does it take the Attorney General’s unconstitutionality argument any further? I am not persuaded that it does.   

The other question that ought to be asked is whether the manner of voting amounts to ‘Order of Business’ or not. If it does, government’s application should be upheld. If it does not government’s application should fail. Before we decide on this question we need to define the words ‘Order of Business’. Order of Business should be interpreted to mean how one plans to operationally conduct something.

The question then is: Does the prescription of the manner of election amount to ‘Order of Business’? If it does, it follows that Parliament dealt with it justifiably through the Standing Order. If it does not, it is instructive that it cannot lawfully have been dealt with through a Standing Order, but through parent legislation. It is my view that a prescription on the manner of election is not ‘Order of Business’. It is a substantive issue and was, therefore, erroneously dealt with through a Standing Order. Yet, this too does not take government’s constitutionality argument any further.

This matter cannot be decided without regard to section 89 of the Constitution which deals with alteration of the Constitution. A question still begs to be answered. Can Parliament’s action of amending the Standing Orders be regarded as an alteration of the Constitution?

The synonyms for the word ‘alter’ are change, modify, adjust, vary, amend, revise, rework and correct. As far as I am concerned, none of these was occasioned to the Constitution, either expressly or impliedly, as a result of Parliament’s amendment of the Standing Orders. If this is correct, and I am convinced it is, section 89 of the Constitution in its entirety is not relevant in this case. Reliance by the Attorney General on section 89(5) of the Constitution can, therefore, not be sustained. 

Though the aforegoing have put the matter to rest in the Attorney General’s disfavor, another question is: In acting within the Constitution, which we argue it did, was Parliament’s amendment rational? Put differently, considering the objective of voting, which is to, with dignity and freely, democratically elect people into office, was it rational to abolish voting by hands and introduce voting by a secret ballot? In other words, which is more rational and dignified, a vote by secret ballot or a vote by a show of hands?  In answering this question, the purpose of the amendment is worth considering. If the purpose is to promote free and fair elections, an ideal promoted by our Constitution, then the amendment can be said to be rationally connected to its purpose and is, therefore, rational.  Put differently, is there anything so wrong, in the eyes of the reasonable person, with voting by secret ballot that would warrant setting it aside? Or, is voting by show of hands reasonably of any more beneficial value compared to voting by secret ballot? 

Though the purpose government seeks to achieve through voting by hands as opposed to voting by ballot box is unknown, can such a purpose, objectively seen, be said to be rationally connected to the objective of the law? It probably cannot considering that it is likely to be motivated more by personal and/or political interest than by national interest.

Also, can the inference that government’s action is motivated by the desire to pressurize MPs, especially from the Botswana Democratic Party (BDP), to, while voting, follow the party or the President’s line be excluded? If it cannot, irrationality cannot be discounted and the Attorney General’s case can fall on this ground too.  

Ndulamo Anthony Morima*

*Ndulamo Anthony Morima is a political analyst and Managing Director at Mosireletsi legal Services

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