Stage set for constitutional clash
Tsaone Basimanebotlhe | Thursday November 6, 2014 12:12
The Attorney General’s suit against the Umbrella for Democratic Change (UDC), Botswana Congress Party (BCP) and the Botswana Democratic Party (BDP) has frozen Parliament for five days, in a historic precedent for the country.
IN BRIEF:
The heart of the issue
Amendments made over the years to several parliamentary standing orders allowing for the voting of the Speaker and the Deputy Speaker as well as the endorsement of the new Vice President by secret ballot instead of show of hands.
What the Attorney General says
Secret ballot voting is a departure from the Constitution because it adds to instances where this is a requirement. As parliamentary business is public, one would expect voting in relation to these issues to be open. Open debate and voting is an essential ingredient of the constitutional functions of Parliament. The matter is urgent by virtue of being a constitutional matter, especially that it affects the make up of government.
What the BCP says
Seretse Khama Ian Khama, Ponatshego Kedikilwe and Mompati Merafhe were all endorsed using secret ballot without any perceived or real constitutional crisis and in any event, the Constitution and the Standing Orders provide a clear avenue to be taken to strike down the offensive Standing Orders. This avenue is taken after the positions of Speaker, Deputy Speaker and Vice President have been filled. There is no issue of urgency because the Standing Orders in question have been in existence for 16 years and a clear avenue for their striking down exists.
What the UDC says
No objections were received throughout the years in the amendments of the Standing Orders and they were drafted in consultation with the Attorney General. They were amended to avoid a situation where members feel undue influence being exerted on them during the voting process, which would undermine the integrity of Parliament, where members serve their constituencies and the electorate, not the wishes of the party leadership. The amendments are in line with global best practice and were done in accordance with the Constitution. The Attorney General created the urgency as for years she knew of the Standing Orders she now seeks to annul. The Attorney General has given no reason why she did nothing about the Standing Orders and is only approaching the court now.
What the BDP says
Party agrees with everything the Attorney General has submitted and believes a secret ballot is an “anathema” to the principles of an open and democratic society where legislators should be held accountable to their respective electorates. The matter is urgent as it has implications on the functions of the National Assembly and the Executive, which are interdependent. It is urgent because the 11th Parliament cannot commence without the Speaker and the Deputy Speaker and there is a constitutional vacuum at present as there is no vice president. The BDP will continue the suit should the Attorney General drop out or otherwise opt out of the matter.
Business before the court
After hearing arguments this morning, the Judges will firstly apply themselves to the urgency of the case and make a ruling. An announcement on the way forward will be made thereafter.
However, a legal expert close to the case says the judges could pronounce on both the urgency and the merits of the case in a single judgement today.