In the matter between...
Mbongeni Mguni | Friday November 7, 2014 16:32
During the days leading to October 29 – when the Attorney General’s suit first appeared in the High Court – the court’s automated case management system allocated the matter to Leburu.
High Court matters are usually presided over by a single judge. But Chief Justice Maruping Dibotelo used his prerogative to appoint more judges to hear the matter, as it was of constitutional importance.
According to various sources, Leburu, Walia and Tau have entirely committed themselves to painstakingly study every word in every affidavit, precedent and history in preparation for delivering the verdict today.
By the time the heads of argument were filed hastily by most of the parties in the matter on Wednesday evening, the three judges seemed to have more or less formed an opinion on the matter, hence their confidence in declaring that a judgement would be issued today at 3pm.
Having familiarised themselves with the details of the case, the judges are believed to have generally satisfied themselves as to the application of the law, hence their willingness to hear both preliminary and main points in yesterday’s seven-hour long oral arguments.
“As we speak, they are burning the midnight oil, working on crafting and polishing the judgement,” an experienced legal expert following the case said yesterday night.
“The judgement has to do justice to the various arguments made and they have to say ‘this point is valid, or this point is not valid’. The oral arguments would have helped in shaping the preliminary view the judges already had, having applied themselves to the case.”
Another expert added: “If they say the judgement is tomorrow (today), it must suggest that they are fairly certain about the conclusion that they will arrive at.
They are clear on the law and they have more or less structured it in their minds. All that would remain would be to polish the judgement.”
That view is also buttressed by the fact that the judges’ decisiveness on today being judgement day appeared undaunted by the mountain of voluminous evidence and case files before them.
Early on in the matter, the judges, likely led by Leburu as per the automated system, would have agreed on the structure of meetings to be held.
Armed with detailed knowledge of the arguments, case history and the pertinent law, by the time the three judges enter the High Court today, they will be thoroughly familiar with the various arguments and papers before them.
Legal eagles present in yesterday’s packed courtroom and already aware that the bench could have formed a tentative view, were eagerly watching out for any word that fell from the judges’ mouths for hints on the outcome.
“Sometimes, from the questions the judges are asking, you can tell the direction that the case is taking,” says a lawyer following the matter.
“Because they have thoroughly studied the case, none of the oral arguments contained anything new to them. They likely already had an outline of how the judgement would look like.”
One of the telling questions in yesterday’s marathon hearing came early during arguments on joinder, when Walia sought to know the definition of government the Attorney General was using when arguing that she represented government.
“The Attorney General says it is bringing this application on behalf of government. Who is that?” asked Walia to guffaws from the packed public gallery.
Appearing for the Attorney General, Morulaganye Chamme appeared taken aback by the question and stuttered slightly before responding: “There are many senses it could be used. Either the executive or the three arms. The Attorney General is acting on behalf of government in the sense that she is part of the executive and all three arms of government are interested in the constitutionality but she is acting on behalf of the executive”.
Chamme was soon on the ropes again, after arguing that the United States and India – the world’s biggest democracies – did not use secret ballot in electing their Speakers.
“In those places, is that a statutory requirement? Is it the constitution that directs them or it is the Parliament,” asked Walia.
As Chamme responded: “I believe in India it is the Parliament,” Walia countered: “That is one self-defeating argument, so let’s move on”.
Where Chamme appeared to sometimes hesitate, Parks Tafa appearing for the Botswana Democratic Party (BDP), appeared to resolutely enthral the bench with a detailed argument in favour of the amendments to the Standing Orders being ruled unconstitutional.
Throughout his arguments in favour of the urgency of the case, against the joinder of the Clerk and in favour of the Attorney General’s locus standi, Tafa was barely questioned by the judges and could afford a few cracks at the Botswana Congress Party’s expense that brought laughs to the courtroom.
Tafa was also unequivocal in dealing with the BCP’s widely publicised challenge to the effect that should the court rule in favour of striking down the amendments, the move would effectively mean the three past Vice President, who include President Ian Khama, were unconstitutionally endorsed because secret ballot was used.
“Whatever happened before is of no consequence now because what was done was done and if it was done now, we could stop it. Should we then endorse a violation of the constitution that we now know is a problem? The answer is no. If any legislation is found to be potentially unconstitutional, it must be challenged.”
The Umbrella for Democratic Change and the BCP, which presented their heads of argument after the lunch adjournment, divided the preliminary points on urgency, joinder, locus standi and merits among the various members of their legal teams.
The three judges briefly interrupted the opposition parties’ legal representatives, but generally on points of clarification, lending to expert opinion that generally, the bench had formed a tentative view.
As the judges adjourned court for judgement today, scores of members of the public congregated outside the High Court to deliberate on the merits of the various arguments and the possible outcomes of the case.
“If they rule that the matter is not urgent, then the other rulings fall away for the time being,” said one law student holding court on the steps of the High Court.
“If they agree that it is urgent, but rule that the Attorney General has no locus standi, then the rest of the case falls away.
“If the urgency and locus standi succeed for the Attorney General, the matter of joinder is not fateful and even if they fail here, the matter can be simply postponed. If the Attorney General wins on all the points, the next ruling will be the judgement on the merits, which is the essence of the case.”
Another full house is expected at the High Court today for the judgement.