The Attorney General has conceded that her office was party to the amendment of standing orders, which are currently at the centre of the constitutional battle that has frozen parliament.
The National Assembly remains in limbo due to a pending High Court case in which the Attorney General, prompted by a complaint by President Ian Khama, wants the election of the speaker and endorsement of the Vice President by show of hands and not by secret ballot.
In her answering affidavit filed on Monday, Attorney General Athaliah Molokomme conceded to playing a role in the changes to the standing orders now under dispute.
“I do not deny that my office had a role in drafting of the Standing Orders. That should not detract from the current position that I have formed a view that they are unconstitutional.
“Similarly, parliament enacts laws believing that they are constitutional and they have been challenged regardless of how long they have been in the statute book,” she said.
She said a prescription of the manner of voting is a substantive issue and there is nothing undemocratic in conducting parliamentary business openly. Molokomme emphasised that there are stipulations on Standing Order 61, 62 and 63 that provide what should happen when the speaker puts any question to the Assembly for its decision. “This is in keeping with
I admit that the provision relating to the Vice President has been in place since 1998 and 2010 for Speaker and Deputy Speaker. “This does not mean that it is not urgent to correct the position, especially where it continues to be invoked.”
She said she believes voting should be conducted openly, adding that the powers of parliament exist only in so far as they are supported by the constitution.
She maintained in her affidavit that the constitution does not prescribe the manner of voting in enacting laws, for a vote of no confidence, for endorsing a vice-president and electing a Speaker. But a manner of voting is provided for in section 35(5) (d) and the first (1st) schedule to the constitution.
“Where the manner is not disclosed, voting should be same and the norm in parliamentary business is openness.”
The case will be heard on Thursday.