Parly has surrendered to Khama � Manual Workers
Mpho Mokwape | Friday October 7, 2016 16:51
The union, under the banner of the National Amalgamated Local Central Government and Parastatal Workers Union (NALCGPWU), said according to the Constitution the number of justices of appeal was prescribed by Parliament instead of the President.
The union, in its legal challenge to Khama over his appointment of the seven justices of the appeal, argued at the Lobatse High Court this week that Parliament instead surrendered its responsibilities to the President.
The veteran union led by Johnson Motshwarakgole is also challenging the constitutional validity of Section 4 of the CoA Act in so far as it delegates, to the President, Parliament’s constitutional powers to determine the number of justices. They are seeking a declaratory order to that effect.
Alec Freund (SC) submitted that in respect of Section 99 (2) (b) of the Constitution, the provision requires that the number if any of the justices of appeal in addition to others must be prescribed by Parliament.
“Despite the fact that Section 99 (2) (b) requires Parliament to prescribe the number, if any, Parliament has given away its powers to the president.
It has left the number to be determined by discretionary decisions,” he said.
He explained that moreover the power conferred on Parliament by the latter section was a legislative power, which was required to be exercised by enacting an Act in the manner prescribed by Section 88 of the Constitution.
His contention was that Section 99 did not empower Parliament to authorise a representative of the executive to determine that number by executive decisions.
“Without requiring the President to prescribe any specific number of justices of appeal, Section 4 purports to empower him to appoint as many justices as he may consider necessary.
This is per se incompatible with the scheme of Section 99 (2), which contemplates that a specific number of justices of appeal offices are to be created and thereafter filled.
The question as to whether Parliament has the power to delegate to the President the legislative powers to determine the number therefore does not even raise,” Freund submitted.
Freund maintained that if Parliament had purported to delegate its power to Khama, it could have conferred to the President power to prescribe the number if any but did not do that, instead it purported to empower him to appoint such number, as he may consider necessary.
He said by implication the number could increase or decrease from time to time in accordance with what the President might consider necessary.
On delegation, Freund said if it was to be held that Section 4 purported to delegate to the President the power conferred on Parliament by Section 99 (2) (b) of the Constitution, such delegation was constitutionally impermissible.
He explained that the Constitution has seen it fit to vest in Parliament and not in the executive the power to prescribe the number of justices.
“The identity of the branch of government empowered to determine the number of justices of appeal is an important feature of the constitutional separation of powers in Botswana.”
Anwar Albertus (SC) for the state countered the arguments saying the Constitution did not expressly prohibit Parliament from enacting legislation that would enable delegating to the president.
He submitted that the applicants’ argument that court packing would result if the President were given the liberty to choose numbers was baseless.
“Court packing would exist regardless of whether the President or Parliament determines the numbers of justices,” he said.
Albertus maintained that Parliament did not surrender to the president but were simply delegating.