Mmegi Online :: Parliament’s amendment of the Standing Orders is constitutional! (Part II)
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Tuesday 13 November 2018, 16:21 pm.
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Parliament’s amendment of the Standing Orders is constitutional! (Part II)

In part I, we investigated the constitutionality or lack thereof of the amendment of the Parliamentary Standing Orders which resulted in the provisions that the endorsement for the Vice President, and elections for the Speaker and Deputy Speaker of the National Assembly shall be by secret ballot as opposed to by a show of hands.
By Correspondent Fri 14 Nov 2014, 16:08 pm (GMT +2)
Mmegi Online :: Parliament’s amendment of the Standing Orders is constitutional! (Part II)








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It is now common cause that the Court of Appeal has upheld the High Court’s ruling that contrary to the Attorney General and the Botswana Democratic Party (BDP)’s argument, the Standing Orders are constitutional. In this, the final part, we assist you to understand why the Attorney General and the BDP’s arguments cannot have been sustained by any court of law and were destined to fail as they did.

Firstly, the courts upheld the argument that Parliament had the power to enact and/or amend the Standing Orders 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 endorsing the Vice President and electing the Speaker and Deputy Speaker by a secret ballot in terms of the Standing Orders. The BDP’s lame argument which sought to undermine the legal standing of Standing Orders as compared to an Act of Parliament did not see the light of day.

While it is true that Standing Orders ordinarily deal with such procedural issues as motions, the manner of sitting in Parliament and adjournments, the Monnanyane v The State and Nzwinila v Attorney General decisions are distinguishable to the extent Tafa wanted to extend them to outlaw the current Standing Orders for having, unlike the old Standing Orders, introduced the manner of voting which Tafa argued, to no avail, is a matter of substantive law. 

Secondly, the courts upheld the argument that voting by secret ballot is not unconstitutional. The Attorney General and the BDP’s argument that voting through a secret ballot defeats transparency and openness and is, therefore, as per such authorities as Boipego v Moapare and Nzwinila v Attorney General, undemocratic did not stand Attorney Dick Bayford’s illuminating counter argument that on the contrary, voting by secret ballot protects democracy since it avoids the intimidation and victimisation that is often associated with voting by show of hands. Neither did the argument that since Parliament is a public institution and is accountable to the voters, Members of Parliament (MPs), in exercising the people’s mandate, should vote by show of hands so that the voter is aware of their decisions. Ours is a representative democracy, and in acting in any manner in Parliament, it is rightly assumed that an MP is acting on behalf of his or her voters, unless the contrary is proven.

The Zimbabwean case of Moyo & Others v Svoma & Another as well as the Ballot Act of 1872 of England were instructive if not persuasive. The same applies to the fact that many countries, including Zimbabwe and our own colonial master, England, have voting by secret ballot provided for in their Parliaments’ Standing Orders. To prove that the world has moved towards voting by secret ballot, the African Union Parliament, of which Botswana is a member, Tanzania, Namibia, Zambia, Kenya, Canada and Australia have their Standing Orders obliging that the election of Speaker be by secret ballot.

The BDP’s argument that, in terms of what Parks Tafa referred to as the Law of Meetings, democracy ordinarily dictates that voting be by show of hands, giving examples of family, Associations’ and Societies’ meetings was preposterous to say the least. Unless he supported such so-called ‘Law of Meetings’ with case law in his heads of argument, to which I am not privy, he, in open court, did not cite any authority to support his argument.  

Thirdly, the courts disagreed with the BDP’s argument wherein its Attorney, Parks Tafa, argued in vain that, owing to the common law exclusio rule( which provides that the naming of others or things excludes all those not so mentioned), since voting by ballot is only constitutionally provided for the elections of the President (s. 35(d)) and Specially Elected Members of the National Assembly (s. 4(4) of the Schedule to the Constitution in terms of section 58(2)(b) of the Constitution), it should not apply anywhere else where the Constitution does not expressly so provide. Section 76(1) validly, in the court’s view, permitted Parliament to provide for voting by secret ballot as it did through the Standing Orders. 

Fourthly, the courts were not persuaded by the argument that amending the Standing Orders amounted to making additions, amendments and modifications to sections 39(1), 59(1) and 60(1) of the Constitution and was unconstitutional since it was not done in terms of section 89 of the Constitution. The courts were right. As argued in part I, this cannot be

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because when Parliament amended the Standing Orders it in no way purported, either expressly or impliedly, to amend the Constitution. It simply exercised its section 76(1) power of making and/or amending subordinate legislation to regulate its own procedure.

It was the courts’ view that Parliament’s action in terms of section 76(1) does not offend sections 26 and 27 of the Interpretation Act, CAP.01:04.   In terms of section 26 “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. Inarguably, using section 76(1) to enact Standing Orders to outline a manner of voting to give effect to sections 39(1), 59(1) and 60(1) of the Constitution fell within this ambit.

In terms of section 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”. How else can sections 39(1), 59(1) and 60(1) be construed other than that for them to be effective they need a manner of voting as that outlined in the Standing Orders?

Though it dealt with the question whether legislation can be abrogated by disuse, applying the ratio in Attorney-General in Re: Dynamic Services (Pty) Ltd and The Attorney-General and another 1996 BLR 49 (CA), it is incontrovertible that amending the Constitution, and indeed any law, is not something that can be done impliedly. In terms of our Constitution the Constitution can only be amended in terms of section 89. As argued in part I, since no amendment occurred section 89 of the Constitution, in its entirety, can never have been relevant in this case.

Appreciatively, the courts did not disagree.   Fifthly, the courts were not convinced by the argument that the amendments to the Standing Orders brought about substantive amendments to the Constitution by, according to the Attorney General and the BDP, introducing additional requirements for the endorsement of the Vice President and the election of the Speaker and Deputy Speaker. As canvassed in part I, the manner or method of bringing somebody who is already legible to hold a particular office to office cannot be regarded as an additional requirement since it does not require the prospective office bearer to do anything else to attain such positions. Tafa’s reference to the High Court Act and the Court of Appeal Act, arguing that the said Acts have not borne the need for an equivalent of Standing Orders to regulate how the judges and justices vote, was rightly regarded as distinguishable.

In the end, the Attorney General and the BDP, like many people, including lay persons, had anticipated, lost the case with costs. One wonders why the Executive decided to take the matter to court in the first place. Not only did the case cost the tax payer considering the legal costs to be paid to the Attorneys for the Umbrella for Democratic Change (UDC) and Botswana Congress Party (BCP), it also caused unnecessary anxiety among our people. After all, the BDP managed, under the secret ballot it seemingly dreaded, to have its choices for Vice President, Speaker and Deputy Speaker rubber stamped by the BDP dominated Parliament. 

Though this is not the subject of this article, one ought to comment on the endorsement of the Vice President and the election of the Speaker and Deputy Speaker. Considering how divisive he is; his anti-trade union stand; his disdain for the media and that he is a self-acclaimed bootlicker (lelope), His Honor, Mokgweetsi Masisi, is certainly not the best person to hold the esteemed office of Vice President. No one can be heard saying Masisi was better placed than such persons as Dr. Pelonomi Venson-Moitoi and Nonofo Molefhi, for example.

As regards the Speaker, while I was not opposed to Dr. Margret Nasha becoming Speaker, it is my opinion that Honorable Gladys Kokorwe is a good choice for Speaker considering the motions she moved and/ or supported (including the one on Declaration of Assets and the one against floor crossing) while an MP; her performance during her tenure as Deputy Speaker, her pro-women empowerment back ground and her pro-youth empowerment stand which she exhibited when she was Minister of Youth, Sport & Culture. As regards the Deputy Speaker, Kagiso Molatlhegi, it is sufficient to state that nobody expected him to attain such a position.     

 

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

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