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The Judgement - Attorney General of Botswana versus political parties

Full text of judgment The Attorney General of Botswana - Applicant and Umbrella For Democratic Change - 1st Respondent; Botswana Congress Party - 2nd Respondent; Botswana Democratic Party - 3rd Respondent:
By Staff Writer Sun 09 Nov 2014, 21:56 pm (GMT +2)
Mmegi Online :: The Judgement - Attorney General of Botswana versus political parties








1. Constitutional supremacy, within the realm of the doctrine of separation of powers, shall be the springboard from which this decision will be anchored and shaped. In order to sharpen and sculpt the germane issues into proper focus, a background to the present lis would be in order. 

2. In terms of the Notice of Motion, filed on urgency in terms of Order 12 Rule 12 of the Rules of the High Court, the applicant, who is the chief legal advisor of the Government of Botswana, marshalled in our direction, an application wherein she seeks the following orders; namely, that:- 

2.1 the normal rules of this court relating to service of process and time limits be and are hereby dispensed with and that this matter be and is hereby treated as an urgent application. 

2.2 the Court do hereby issue and (sic) order declaring that Standing Orders 4.3, 4.4, 4.5,4.6, 4.7,4.8,4.11,4.14 and 6.1 are unconstitutional, and 

2.3 Costs of the suit. 

3. The present application is sternly opposed by the 1st and 2nd respondents. The 3rd respondent, the Botswana Democratic Party supports the present application. 

4. The 1st respondent is Umbrella For Democratic Change, the 2nd respondent is Botswana Congress Party and the 3rd respondent is Botswana Democratic Party. All the respondents are political parties duly registered under the Societies Act, Cap 18:01, Laws of Botswana.

 

APPLICANT’S CASE 

5. The deponent to the founding affidavit is Athaliah Lesiba Molokomme, the Attorney General of Botswana. 

6. According to the applicant, on the 24th October 2014, she received a letter from the 3rd respondent’s attorneys, indicating that they had, after considering the Standing Orders mentioned above, formed a view that same were unconstitutional. In the said letter, the 3rd respondent sought corrective actions from her, which they felt would remedy the situation. The said letter was also addressed to the Clerk and Speaker of the National Assembly. The said letter is reproduced below as follows: 

“RE: ENDORSEMENT OF THE VICE – PRESIDENT, NOMINATION OF SPEAKER AND DEPUTY SPEAKER OF THE NATIONAL ASSEMBLY – SECTIONS 39, 59 AND 60 OF THE CONSTITUTION OF THE REPUBLIC OF BOTSWANA – AND THE STANDING ORDERS WHICH ARE UNCONSTITUTIONAL AND ULTRA VIRES 

1. We act for and on behalf of the Botswana Democratic Party (“the BDP”) and the President of the Republic of Botswana (“the President”), our clients, in respect of the above matter. We have been instructed to pursue invalidation of the recent revised publication of the Standing Orders of the National Assembly of Botswana (“the Standing Orders”).

2. We are advised that sometime in August 2013 and August 2014, certain provisions were introduced in the Standing Orders in relation to the endorsement of the Vice-President by Parliament, the election of the Speaker and Deputy Speaker of the National Assembly, of the Republic of Botswana. 

3. It is of grave concern that the Standing Orders in question have purported to amend, substitute, edit and replace substantive provisions, without compliance with the provisions of section 89 of the Constitution of the Republic of Botswana, which permits, governs and safeguards the manner in which any section, part and provisions of the Constitution could be altered, substituted, amended and replaced. 

4. Having regard to these Standing Orders and their far-reaching consequences and constitutional implications to the established order and the rule of law in Botswana, it is quite astonishing that Members of Parliament, the Speaker and the Deputy Speaker, the Clerk of the National Assembly and the Parliament Counsel, each of whom have sworn to uphold the Constitution of the Republic of Botswana upon assumption of office, have failed singuarly to do so.

 

5. THE ELECTION OF THE SPEAKER AND THE DEPUTY SPEAKER 

5.1 The Constitution only envisages the election of the Speaker and the Deputy Speaker of the National Assembly under sections 59 and 60 of the Constitution, and in accordance with section 74 (1) of the Constitution, namely voting by simple majority, by show of hands. 

5.2 Accordingly, Standing Orders 4.3,4.4, 4.5 and 4.6, are ultra vires and contravene the provisions of the Constitution. To the extent that they introduce additional requirements not recognised by the Constitution, such as election by secret ballot, nomination papers and a 24 hours deadline period for submission of nomination forms, the said requirements are invalid, and cannot be put into practice and/or not implemented.

 

6. ENDORSEMENT OF THE VICE –PRESIDENT 

6.1 The Constitution only envisages the endorsement of the Vice-President by National Assembly under section 39 (1) of the Constitution, and in accordance with section 74 (1) of the Constitution, namely voting by simple majority, by show of hands.

6.2 Accordingly, Standing Orders 6.1, 4.5 and 4.6 are ultra vires and contravene the provisions of the Constitution. To the extent that they introduce additional requirements not recognised by the Constitution, and significantly, an election by secret ballot and ballot papers, the said requirments are invalid, and cannot be put into practice and/or implemented.

6.3 Furthermore, the manner of appointment of the Vice-President under section 39 of the Constitution is one of the entrenched provisions in accordance with section 89 (3) (a) of the Constitution, that cannot be altered by the National Assembly, by introducing new and/or additional requirements such as “voting by secret ballot”, without compliance with the stringent legislative procedures set out in section 89 of the Constitution, including the requirement of a minimum threshold of “not less than two-thirds of all Members of the Assembly.” 

7. In view of the aforegoing, we are instructed, as we hereby do, to demand an unequivocal, unconditional written undertaking by Friday 24 October 2014, at 4:00pm that you will not implement and put into practice the following, in respect of the election of the Speaker, Deputy Speaker and endorsement of the Vice-President. 

7.1 Standing Orders 4.3, 4.4, 4.5, 4.6; and

7.2 Standing Orders 6. 

8. Furthemore, and in addition to the above, we demand that you withdraw forthwith by notice to the public, the press releases and the accompanying nomination forms. 

9. Should you not comply with the above demands, we are instructed to bring an urgent constitutional application to interdict the convening of the new Parliament for the election of the Speaker, Deputy Speaker and the endorsement of the Vice President, which we shall do during the course of this weekend, pending a substantive application for enforcement of, and constitutional challenge to set aside the Standing Orders in question. 

10. This would plunge the country into a major constitutional crisis, but however, litigation of this magnitude, no doubt can be avoided on the aftermarth of the General Elections, and in our respectful view, it is needless in the circumstances, if we receive the written undertakings requested, as well as compliance with the demands set out in paragraphs 7 and 8 above. 

11. In our considered view, the points we have raised in this letter are, with respect, unassaliable (sic), and where a potential violation of the Constitution is anticipated of such a gravity, the issues of estoppel, delays in raising the constitutional challenge and/or political expendiency, should be subservient to the necessity to uphold the sanctity of the Constitution of the Republic of Botswana. 

Yours faithfully…Collins Newman & Co.”

 

7. Following receipt of the said letter from the 3rd respondent, the applicant contacted the other addressees in order to discuss the contents of the said letter. A meeting was convened with a view to resolve the impasse and to chart the way forward. 

8. Subsequent to the said meeting and after properly advising herself, the applicant stated that she came to the conclusion that the position, as adopted by the 3rd respondent, was correct, that is to say, that indeed the said Standing Orders were unconstitutional. 

9. After advising herself accordingly on the unconstitutionality of the Standing Orders in question, the applicant informed the 3rd respondent’s attorney Mr. Attorney Parks Tafa, of her considered position. 

10. On the 26th October 2014, the applicant was served with a letter from the 1st respondent’s attorneys, wherein they offered a contrary interpretation to the one she and the 3rd respondent held. 

11. According to the applicant, and the 3rd respondent, section 39 of the Constitution does not provide for a procedure with respect to the endorsement of the Vice President. In amplification, it was submitted that to the extent that the said Standing Orders introduced endorsement by a secret ballot, such Standing Orders have the effect of amending, modifying and or altering the provisions of Section 89 (5) of the Constitution; hence they are ulra vires the Constitution. The same logic and argument with respect to the election of the Speaker and Deputy Speaker was also advanced by the applicant, but this time with particular reference to sections 59(1) and 60(1) of the Constitution. It was further submitted that section 33 of the Interpretation Act Cap 01:04, Laws of Botswana, which codified the maxim expression unius est exclusio altereius, was applicable and its point of reference being that since the Constitution only made provision for the election of the President, and Specially Elected members of Parliament, then the procedure for the election of Speaker, Deputy Speaker and endorsement of the Vice President is excluded, hence the Standing Orders making provision for such appointment are ultra vires.

 

THE 1ST AND 2ND RESPONDENT’S POSITION 

12. The 1st and 2nd respondents have raised six sharply pointed preliminary legal arguments. The said points in limine are that the application is not urgent, secondly that the applicant lacks locus standi in judicio to institute these proceedings, thirdly that there has been a material non joinder of the Clerk and or the Speaker of the National Assembly as well as members of the Assembly, fourthly that the 3rd respondent’s affidavit is irregular in that it was filed in support of the application and yet the 3rd respondent is not a co-applicant. The fifth preliminary point is that the 3rd respondent’s supplementary affidavit was filed without leave of court. The last point is that the matter is not ripe for adjudication in that the applicant is seeking court’s opinion where there is no concrete dispute, that is to say, that this court’s opinion is required on a merely hypothetical case where there is no harm suffered. 

13. On the substantive submission on the merits, it has been submitted that the said Standing Orders are intra vires and not ultra vires the Constitution. It was contended that Section 76 (1) of the Constitution empowers the National Assembly to regulate its own procedure and acting pursuant thereto, the National Assembly resolved and did pass Standing Orders that outlines the procedure for elections and endoserment, as envisaged by section 39 (1) (Vice President), section 59 (1) (for Speaker) and section 60 (1) (for Deputy Speaker); respectively hence such Standing Orders muster Constitutional validity test.

14. Having summarised the respective parties positions, it is only pertinent that I examine the constitutional imperatives that attach to the endorsement of the Vice President, the election of the Speaker and Deputy Speaker.

 

THE VICE PRESIDENT, SPEAKER AND DEPUTY SPEAKER 

15. Section 39 (1) is apt and for brevity, it is reproduced as follows:

“39 (1) There shall be a Vice–President who shall be appointed by the President from among the elected members of the National Assembly who are citizens of Botswana by birth or descent, which appointment shall be endorsed by the said Elected Members.”

15. Section 59 (1) of the Constitution happily recognises the position and election of the Speaker in the following terms:

“59 (1) 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.” 

16. The position of the Deputy Speaker is esconsed within section 60 (1) as follows:- 

“60 (1) There shall be a Deputy Speaker of the National Assembly who shall be elected from among the persons who are Members of the Assembly other than the President, the Vice President, Ministers or Assistant Ministers. 

17. Having outlined the Constitutional provisions dealing with the election and endorsement of the three positions, it is trite that the modus operandi for election and endorsement thereof has not been spelt out by the supreme law of our Republic. A question may be posed: why did the Constitution refrain from spelling out such critical and fundamental procedure? The answer to this smooth and chiselled question can be found from a studious interrogation of the nature, function and purpose of the Constitution and supplemented with the judicial ethos that underpin and inform constitutional interpretation. I shall now embark on such voyage of discovery.

 

THE NATURE AND PURPOSE OF A CONSTITUTION

18. In his refreshing and loaded book titled Constitutionalism and the Rule of Law in Botswana (Mmegi Publishing House, 2011), Dingake, OBK, (also a Judge of this Court), at page 12 defines a Constitution in the following memorable terms: “The concept of a “Constitution” is derived from the word “constitute”, which means to make up. It follows then that the term “Constitution”, properly and broadly construed, refers to a body of rules that determine and regulate the structure of the organs of the State and their relationship to one another. Narrowly construed, a constitution refers to a legal document that defines and empowers the organs of the State. The Constitution is the supreme law of the land. In more poetic terms, it is often referred to as the “soul” or “mirror” of the nation. It contains the most important rules concerning the political system of a country. These include rules on the institutions of government in the country, their powers and how they must exercise those powers.” 

19. I entirely embrace the above formulation; and for purposes of emphasis, a constitution is the mainspring from which all laws derive their validity and legitimacy. It is the mother of laws. 

20. The Constitution, by its nature, sets out a broad framework within which power is diffused and distributed between tripartite branches of government, namely - the Legislature, The Executive and lastly the Judicature. On that score, the Constitution, by its nature verbalises broad, fundamental and enduring purposes. Furthermore, by its nature, it requires that only its great outlines and sphere should be marked, and not the finer details. See Attorney General v Dow [1992] BLR 166 and Clover Petrus and Another v The State[1984] BLR 14. 

21. Due to its broadness and over-arching tendency, Constitutional provisions cannot; by any stretch of imagination, cater or legislate for every conceivable minute detail. It is on the basis of such fundamental proposition that Constitutional provisions are considered as broad theoretical constructs or underpinnings that inform all laws promulgated under the Constitution. The Constitution , as an enduring supreme law, is crafted in broad, inclusive and open ended language, values and beliefs associated with democracy and the rule of law. See De Ville; Constitutional and Statutory Interpretation 58 – 60 and Lourens du Plessis; Re-Interpretation of Statutes; Lexis Nexis (2002) at pages 133-136; and Nsereko D.D.N.; Constitutional Law in Botswana. Pula Press (2004). 

22. The next leg of enquiry on the constitutionality of the Standing Orders points to the principles governing interpretation of a Constitution.

 

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION 

23. The Courts, as a point of departure, invoke the Interpretation Act, Cap 01:04, Laws of Botswana, in order to fathom the meaning of a statute or Constitution. Such exercise, is buttressed by the long title of the said Act which posits as follows: “An Act to provide for the interpretation of the Constitution and other enactments.” (my underlining and emphasis). 

24. In interpreting a Constitution, courts prefer and embrace an interpretation that gives effect to the values of the Constitution, than to an interpretation that does not. Section 26 of the Interpretation Act provides that 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. See Edith Mmusi & Others v Molefi S. Ramantele and Others MAHLB-000836-10 (unreported) (HC). 

25. Section 27 of the Act is also instructive and supports an interpretation that renders

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an enactment or Constitution effective as opposed to ineffective. 

26. Ngcobo J, in Matatiele Municipality & Others v President of South Africa and Others 2007 (6) SA 477 (CC) at page 488 poignantly remarked as follows when dealing with constitutional interpretation: 

“The process of Constitutional interpretation must therefore be context sensitive. In construing the provisions of the Constitution, it is not sufficient to focus only on the ordinary or external meaning of the phrase. The proper approach to constitutional interpretation involves a combination of textual approach and structural approach. Any construction of a provision in a Constitution must be consistent with the structure or scheme of the Constitution.” 

27. Armed with the structural and functional purpose of a Constitution, together with principles of Constitutional Interpretation, what is outstanding is to place the attacked Standing Orders under the constitutional microscope. Ab initio, I will highlight the gist and substance of each Standing Order sought to be impugned.

 

ATTACKED STANDING ORDERS 

28. Standing Order number 4.3 states that the election of the Speaker shall be by secret ballot. Standing Order number 4.4 deals with the entering of candidates names for election as Speaker on nomination papers obtained from the Clerk of the National Assembly. Number 4.5 outlines how the Clerk prepares ballot papers with names of nominated candidates to the position of the Speaker. 

29. The next Standing Order that is sought to be invalidated is 4.6, which deals with the calling of members of Parliament, in alphabetical order, to cast their vote. 4.7 enjoins the Clerk, at the commencement of each ballot, to cause the ballot box to be unlocked, emptied and displayed to the Assembly. It also speaks to the locking of the ballot box and the keeping of it within the Assembly. 

30. Standing Order Number 4.8 explains the counting of ballot papers after the vote and the announcement of the voting results. Number 4.11 envisages a withdrawal of a candidate from the voting process. 

31. The election of the Deputy Speaker is covered by Standing Order Number 4.14. The same process that applies to the Speaker will be followed, but now under the watchful eye of the Speaker who shall preside over such an election. 

32. The last Standing Order is 6.1, which highlights the procedure for endorsement of appointment of the Vice President by elected members through a secret ballot. The Speaker presides over such an endorsement. 

33. According to the applicant and 3rd respondent, sections 59 (1), 60 (1) and 74 (1) of the Constitution envisages the election of Speaker (section 59) and deputy Speaker (section 60 (1)) by show of hands and through simple majority. I have studiously perused the said sections and firmly hold the view that they do not support the interpretation given to them by the applicant and 3rd respondent. 

34. As reproduced above, the said sections 59 (1), and 60 (1) speaks for themselves and do not require voting by show of hands. The same goes for section 74 (1) which states that any question proposed for the decision in the National Assembly shall be determined by a majority of the votes of the members present and voting. 

35. The applicant and the 3rd respondent have averred that the introduction of additional requirements for the election of the Speaker, the Deputy Speaker and the endorsement of the Vice President, namely election by secret ballot, nomination forms etc, as promulgated by the said Standing Orders, are not recognised by the Constitution, hence they are unconstitutional. Before I determine such a vexing question, the nature and validity of Standing Orders need to be examined in extenso.

 

VALIDITY OF STANDING ORDERS

36. Section 76(1) of the Constitution is the bastion that fortifies the validity of Parliamentary Standing Orders, and in this connection I can do no better than reproduce same in its entirety.

“76 (1) Subject to the provisions of this Constitution, the National Assembly may regulate its own procedure.” 

37. In terms of the aforestated, the National Assembly has been delegated, by the Grundnorm (superior law) to regulate its own procedure where the Constitution has not made provision for such a procedure. This qualification is derived from the phrase “subject to the provisions of this Constitution.” In the absence of any Constitutional provision that spells out procedure, Parliament, on that score, has been delegated to regulate its own procedure.

38. The statutory construction and interpretation that I made with respect to section 76 (1) cited supra dovetails well with the interpretation accorded by the court in the case of S v Marwane 1982 (3) SA 717 where the court therein grappled with the interpretation of the phrase or qualification “subject to the provisions of this Constitution.” See also Mosetlhanyane and Another v The Attorney General [2011] 1 BLR 152 (CA) where the Court of Appeal also dealt with the phrase “subject to the provisions of this Act.” It was held therein, applying the dictum in C and J Clark v Inland Revenue Commissioners [1973] AII ER 513 at 520 as follows: “In my judgment, the phrase ‘subject to’ is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. When there is no clash, the phrase does nothing: If there is collision, the phrase shows what is to prevail.” 

39. In the case of Mzwinila v The Attorney General [2003] 1 BLR 557, Kirby J (as he then was) held that our law recognised the privilege of parliament to regulate its own procedure. It does so by passing , inter alia, resolutions that give rise to Standing Orders. Furthermore, the purpose of Standing Orders is neatly captured by Standing Order No.1, which outlines such purpose as follows: 

“PURPOSE - These Standing Orders contain rules for the conduct of proceedings in the House and for the exercise of the Powers possessed by the House. They are not intended to diminish or restrict the House’s rights, prvileges, immunities and powers.” 

40. Although Standing Orders are not enacted as a statutory instrument, stricto sensu, they are nonetheless rules which govern legislative proceedings. Such rules, I venture to postulate, are internalised as binding and valid rules by the Assembly. On this score I recall Professor Hart H.L.A. in his piece titled The Concept of Law wherein he stated that a rule is said to be at the root of the notion of obligation. In other words, such rule exerts a normative obligation from which the subject (in this case Parliament) feels compelled to abide by such a rule, hence it assumes legislative force of law. Having perused through the evidence of two affidavits of two former Members of Parliament; filed of record, evidence of such internalisation is palpable and manifest. 

41. Another legal scholar, Dias R.W.M., in his book titled Jurisprudence (5th ed Butterworths, London 1985) at page 48 – 49 narrated the following: “There are many rules in society prescribing how people ought to behave , but not all of them are internalised as “law”. There are, for example, accepted rules in various sports, rules of etiquette, morals and so on …. Legal rules are distinguished from others with reference to the criterion, or criteria of validity, which ….are statutes, procedures and immemorial customs. Rules emanating the criterion of validity are internalised as rules of law because the criterion itself has been internalised as law constitutive…” 

42. On the basis of such progressive analysis, one can safely conclude that such Standing Orders are legal or standing rules that the Assembly is dutifully bound to comply therewith. Such Standing Orders have all the attributes of delegated legislation. In any event, such Standing Orders are made by the legislative arm of Government in order to regulate its own proceedings 

43. Parliament has the necessary power and standing to regulate its own affairs. That is a given. In the case of British Railways Board and Another v Pickin [1974] 1 All ER 609 (HL), it was stated as follows:-“….that the House of Parliament enjoy certain privileges…among (these) is the exclusive right to determine the regularity of their own proceedings.” 

44. In another case of Mutasa v Makombe No. 1998 (1) SA (ZS), the privilege to regulate its (parliament) internal proceedings was also recognised. In exercising its power to regulate its internal process, such power includes all such powers that are reasonably necessary or incidental to the regulation of its internal process. I am fortified herein by section 15 (2) of the Interpretation Act, which provides as follows:

“15.2 Where an enactment confers a power, or imposes a duty, to do any act or thing, all such powers shall be deemed to be also given as are reasonably necessary to enable, or require that act or thing to be done or are incidental to the doing thereof.” 

45. Although Parliament enjoys exclusive right to determine its internal process, as a general proposition, such privilege is not absolute. Such parliamentary privilege is subject to the supreme law of the land and should therefore comply with the Constitution. See Smith v Mutasa & Another NNO 1990 (3) SA 756 (ZS). 

46. In the case of Federal Convention Namibia v Speaker, National Assembly, Namibia 1994 (1) SA 177 (NSC) Levy J recognised the constitutional exception as follows: “Where there are written provisions in the Constitution, which have to be complied with, that is peremptory provisions, even if such provisions related to internal matters of one of the Houses of Parliament, a court of law will have jurisdiction to see to it that there is compliance unless such jurisdiction is specifically and lawfully ousted.” 

47. The case of Doctors for Life v The Speaker of the National Assembly and Others [2006] (6) SALR 416 also drives the point home that such parliamentary privilege is not absolute. In that case, the following dictum is apt:- “Courts have traditionally resisted the intrusions into the internal procedures of other branches of government. They have done this out of comity and, in particular, out of respect for the principle of separation of powers. But at the same time, they have claimed the right as well as the duty to intervene in order to prevent the violation of the Constitution.” 

48. I shall now apply the above formulation to the case at hand in order to determine the constitutionality of the said Standing Orders. 

49. The primary impetus or gravitas of section 39 relating to the appointment of the Vice President is “endorsement” by Elected Members. Endorsement in electoral parlance, connotes or includes approval or acceptance. For the Speaker and the Deputy Speaker, the essentialia is also election or voting. 

50. It is a fundamental principle of our constitutional democracy that everyone has the right to take part in the government of their country through freely chosen representatives. The right to vote is an indispensable feature of our democracy. It is therefore important that voting must be free from intimidation and or coercion. The Constitution recognises a right to vote in terms of section 67. 

51. The freedom and fairness of the voting process is assessed, inter alia, by secrecy of the ballot and the freeness of voting. The freeness of such voting is intrinsically intertwined with the freedom of expression as guaranteed and entrenched in our Constitution. A secret ballot is a hallmark of a free and fair election within our representative democracy. Our national election is premised on secret ballot, as stated in the Electoral Act; which derives its validity from the Constitution.

52. It is the general tenor and spirit of our Constitution that elections should be free and fair. The election of the Speaker, the Deputy Speaker and the endorsement of the Vice President, in the present circumstances, is a continuation or forms the substratum of the just ended General Elections, that recognizes a secret ballot. 

53. As recognised above, a Constitution is a broad based framework upon which all laws derived there from enjoy legal validity. Constitutions, are often crafted in skeletal form and flesh is to be added by delegated legislation. See Hahlo and Kahn: SA Legal System and its Background. 163. 

54. On statutory interpretation, section 27 of the Interpretation Act deserves full recital and it provides thus: 

“27. 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.” 

55. The Constitution envisages voting, but does not spell out the method thereof. In order to put such voting process into effect, the Standing Orders have been legislatively crafted and created in order to give effect or put into operation the voting process, as envisaged in the Constitution. Such Standing Orders do not, in my view amend, alter, vary or modify any constitutional provision. In effect, they put “flesh to the skeletal” framework; and do not in any shape or form amend, alter, vary, and modify the Constitution. 

56. The maxim “expression unius” has no relevance and application in the present matter. Section 76 (1) of the Constitution acknowledges that somewhere within the Constitution, a procedure would be provided that regulates Parliament. Where such procedure is stated, e.g. the election of President and Specially Elected members, then Parliament cannot, through Standing Orders, amend or vary such procedure. This qualification is captured and endorsed by the phrase “subject to the provisions of this Constitution.” Where a procedure is not stated in the Constitution, then and only then would Parliament be entitled to regulate its own internal process in terms of the residual powers granted by section 76 (1) thereof. The maxim alluded to above cannot be invoked to whittle down parliamentary privilege. Kirby J, in Mzwinila case cited above emphasized such sacrosant privilege where he made the following ringing dictum at page 561G: “In my judgment, any dimunition or cancellation of any of the privileges of parliament must be clear and unambiguous.” 

57. In any event Courts have warned and cautioned that “expression unius” maxim should be sparingly invoked, particularly where an enactment is elegantly crafted. See Peyton v Cran 1910 AD 205 and Taylor v Prime Minister & Another 1953 (3) 956. In our case, the Constitution retained some powers with respect to Parliamentary procedure e.g. Election of President under section 35 (5) and election of Especially Elected members under Section 58 (2) of the Constitution read with item 4 (4) of the First Schedule of the Constitution. Section 76 (1) cited above granted Parliament residual powers regulate the election of the Speaker, Deputy Speaker, and endorsement of the Vice President. It is on the basis of this syllogistic reasoning that I determine that all the Standing Orders under attack pass the Constitutional validity test. 

58. Having determined that the said parliamentary privilege to promulgate Standing Orders is intra vires, then the court has no jurisdiction to enquire on the lawful internal processes of the National Assembly, otherwise the court will be intruding into the affairs of another branch of government. On this ground alone, the applicant and 3rd respondent’s attack on the said Standing Orders is futile and is not merit laden. It therefore becomes otiose and unnecessary to consider other legal points raised. 

58. On costs, the court has noted that each party brought at least 5 attorneys each, except the applicant who brought two. In our view, this was a fairly straight forward matter that did not warrant a large array and ensemble of attorneys, although safety in numbers may occasionally prevail, which is not the case herein. Costs to be awarded to a successful party should therefore be restricted to two attorneys per successful party. 

59. In conclusion, the application is dismissed with costs, to be borne by the applicant and the 3rd respondent (as the initiator of these proceedings), jointly and severally the one paying the other to be absolved, on the ordinary scale. Such costs shall be restricted to two attorneys for the 1st and 2nd respondents, and it is so ordered. 

DELIVERED IN OPEN COURT THIS 7th DAY OF NOVEMBER 2014

 

M. LEBURU, JUDGE

 

I agree L. S. WALIA, JUDGE

I agree T. TAU, JUDGE

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