The High Court stood firm on Friday for the independence of parliament from other organs of state and emphasized the need to have a free parliament that conducts its own business without even the interference of the courts.
The Attorney General, an ex-officio member of cabinet , with the help of the ruling Party, the Botswana Democratic Party, dragged parliament to court to force it to conduct the election of the vice president, the speaker and deputy without applying parliament standing orders which have been in effect since 1998.
Delivering judgement on Friday justice Michael Leburu said Parliament has been delegated by the superior law, to regulate its own procedure where the constitution has not made such a procedure,… “Our law recognised the privilege of parliament to regulate its own procedure.
It does so by passing resolutions that give rise to Standing Orders..(which) contain rules for the conduct of proceedings in the house and for the exercise of the powers possessed by the house”.
Judge Leburu also noted that 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, the judge said.
“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 does not in any
“ 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 freedom and fairness of voting is assessed 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 the hallmark of a free and fair election in our representative democracy. Our national election is premised on secret ballot, as stated in the Electoral Act, which derives its validity from the Constitution.”, Leburu said in his judgement.
He also noted that the election of the Speaker and the deputy speaker and the endorsement of the Vice President in the present circumstances is the continuation of the just ended General Elections which recognises the secret ballot.