Venson-Moitoi appointment unconstitutional
Bame Piet | Friday April 4, 2014 15:05
Also, the constitutional provision for Cabinet Ministers is 16, but with this week’s shocking reshuffle it has increased the number to 17.
On Tuesday, President Ian Khama announced that he had granted leave of absence to former Minister of Education and Skills Development (MoESD) Pelonomi Venson-Moitoi and redeployed her to the same ministry to head the special assignment department. Then Venson-Moitoi insisted that she has not been redeployed as a civil servant or consultant as original communicated, but as a minister for the strategic plan in MoESD.
Yesterday, Parliament took two hours trying to seek explanation as to what constitutional provision Khama used to appoint 17 ministers, when he roped in Vincent Seretse as full minister, and still maintained Venson-Moitoi in Cabinet.
Just as Parliament observed, legal brains told Mmegi that prescribed ministerial portfolios could not exceed 16 in terms of the law and what should be clear, but is not, is that Venson-Moitoi is not amongst those Cabinet Ministers (least of education) and in terms of Section 126 (2) Mokgweetsi Masisi is. Khama has appointed Masisi as the acting Minister of Education and Skills Development.
Attorney Morgan Moseki said in terms of Section 126 (2) of the Constitution a minister appointed on acting basis holds the office and performs all the functions as if he or she is a full minister. “Therefore to say according to the letter of the Constitution that he or she is deemed to be the sole holder of the office excludes the former in so far as the functions conferred upon that office are concerned,” said Moseki.
What it means, said Moseki is that an acting minister is a minister de jure (by right) and de facto. “In the light of the recent chronicle of events, Venson-Moitoi is for now out and out. She cannot sit on the front benches or executive. In our opinion, she remains a Member of Parliament (MP) and can sit on the backbenches as an ordinary MP.”
Another attorney Martin Dingake agreed with Moseki’s legal point of view. “Contextually, and in the light of Section 126(2), the leave of absence leads ultimately to the relinquishment of the office. Plainly put, the relinquishment of office is a condition precedent to the leave of absence and any other appointment pursuant thereto,” said Dingake.
Based on Section 126(2), he submitted that the latter appointees on acting basis are substantive holders of the said ministerial positions.
“I imagine that this must and will equally be reflected in the sitting arrangement in parliament.”
About the issue of separation of powers, he said the Constitution does not embrace the concept of separation of powers in its most rigid form.
“This much was said by the Court of Appeal in the case of Setsogo and Others v Botswana Railways. There are many pointers to that effect. The obvious one and most relevant for purposes of this discussion is the composition of both the National Assembly and the Executive. Members of the Executive being the President and Ministers are also members of the National Assembly.”
Dingake also said that fluidity tends to dilute the content, nature and extent of the application of the concept of separation of powers. That is not to say it is constitutionally permissible for a minister to be a civil servant whilst holding the ministerial post, he argued.
“The Public Service Act requires of the civil service to be apolitical. Most importantly, it would suppose that such a person is subject to two regulatory frameworks,” he said.
Dingake also believed the decision taken by Khama to second Venson-Moitoi can be challenged in a court of law. “In exercising the powers vested on the President in terms of Section 126 (2) the President exercises executive power. I think all powers exercised by the President under the Constitution are executive powers for public interest and therefore for constitutional imperatives. The nature of the powers therefore and of necessity must be deemed to be power conferred on the president by the Constitution.”
He said the Constitution sets the parameters within which that power must be exercised. “In my respectful view, if that power is exercised outside the parameters set or against the law,” he continued, “then the power is reviewable and it therefore can be challenged in a court of law.”
In Parliament, Member of Parliament for Kanye North Kentse Rammidi had asked the acting Minister of Presidential Affairs and Public Administration Shaw Kgathi to explain: “whether in terms of the powers vested on Ministers by the Constitution of Botswana there is a difference in terms of accountability and responsibilities between a Minister and an Acting Minister;
(ii) whether Ministers who have been appointed on an acting capacity still hold the portfolios they held before being appointed to act; if so (iii) who is responsible for portfolio matters pertaining to the National Assembly; and (iv) whether the substantive Minister of Education and Skills Development still officially holds her position of Minister of Education and Skills Development or any other ministerial office, and whether she is still a Cabinet member.”
Attempting to respond to the question, assistant minister Gaotlhaetse Matlhabaphiri said that Section 127 (5) recognises the acting minister as fully accountable and having full powers to act in the ministerial office to which he or she is appointed to act.
“The ministers, who have been appointed in an acting capacity, still hold the ministerial offices to which they were appointed before being appointed to act”
Parliamentarians then tried to solicit explanation from both the Vice-President Ponatshego Kedikilwe and the Parliamentary Counsel Thebe Ramokhuwa on what exactly Venson-Moitoi’s position is.
The explanation was that a minister could be appointed in a case the incumbent is in the process of relinquishing her post. There was no explanation as to whether Venson-Moitoi was in the process of relinquishing her position. The only explanation was that she was on a special assignment and that she remains a full minister reporting to Masisi. Venson-Moitoi was not in the House.
Ramokhuwa stated that Masisi was in charge of the ministry, but would not explain what Constitutional mandate Venson-Moitoi was serving.
The explanation did not only elude Ramokhuwa, even Kedikilwe struggled to explain it. So bad was Ndelu Seretse’s attempt to explain whether or not his boss had exceeded the Constitutional prescription of 16 ministers to cabinet. He insisted that the Constitution prescribes 16 offices, arguing that so far no extra office has been established as alleged by members of the House.
“Right now I am minister for Defence, Justice and Security, it is only if the appointing authority decides to establish a ministry of defence when we can say there is an additional ministry.”
This did not convince Leader of Opposition Dumelang Saleshando who asked if Seretse implied that the President enjoyed a blank cheque to appoint as many ministers to one ministry as possible, even 40, as long as their offices do not exceed 16. There was no response.
Visibly frustrated with the debate, Speaker of the National Assembly called it off saying the matter was beyond Parliament since it was clear members were nowhere near reaching a compromise. By the end of debate it was not clear whether Venson-Moitoi has transformed into a civil servant, a consultant or remained a minister.