With the crop of legislators we have, clashes between law and politics will never end
Owen Nsala | Wednesday March 29, 2017 15:47
We however, with the benefit of hindsight and recent history, have come to accept that with the crop of legislators we have, laws are no longer passed for the good governance and peace of the republic, but rather for political survival and expediency.
One may recall that immediately after the 2014 General Elections, Parliament was brought down to a standstill as the Botswana Democratic Party (BDP) coerced the Attorney General to strike certain portions of the Parliamentary Standing Orders on account of the standing orders being unconstitutional. The fight by the BDP and the President was not to seek an order that would invariably lead to Parliament promulgating laws for the good of the country. It was a political war of survival and that brought politics into collision cause with the Courts and law. An unenviable battle, I must say.
The “hands-up” case, as it was famously known sought that the Vice President must be elected not by secret ballot but rather by show of hands. The Standing Orders as they were, necessitated that voting must be done by secret ballot. They envisaged a free and fair election where one is not under fear of another to make an informed choice. The Standing Orders represented the ideals of a proper vote and election. Our legislators would not see it that way and wanted to kill the spirit of a free election. Our legislators were reading the law with a political eye and politics mandated that voting must be by show of hand. It was not about the freedom and fairness of the vote.
The freedom and fairness of the voting process is assessed, inter alia, by secrecy of the ballot and the freeness of voting. The freeness of such voting is intrinsically intertwined with the freedom of expression as guaranteed and entrenched in our Constitution. A secret ballot is a hallmark of a free and fair election within our representative democracy. Our national election is premised on secret ballot, as stated in the Electoral Act; which derives its validity from the Constitution.
The desire to strike down the Standing orders was therefore a political war rather than a legal war. It was tainted with bad faith and malice. It said a lot of the current crop of legislators that their interest is not nation building but rather political survival and expediency.
Fast forward to 2017 and another political war is set to be fought in our courtrooms. This time around, there has been amendments to the Electoral Act to the extent that voting by secret ballot has been done away with. Parliament has introduced a new method and system of voting by Electronic Voting Machine (EVM). There has been an outcry from the general public that such voting method is susceptible to vote-rigging and consequently an unfair election process is in the offing. The constitutionality of the amendments are also issues that are before the Courts for determination. It is however prudent to state that defending the matter before Courts is not necessarily for the good of the country, but a necessary political step that must be taken.
It is an uncomfortable forum for the Courts to adjudicate on matters that have political ramifications and storms. It is worse, much more uncomfortable for the Courts to assume the role of Parliament and attempt to legislate where Parliament is failing. Uncomfortable and undesirable as it is, it remains a necessary assault on the separation of powers.
It must be stated that Courts have traditionally resisted the intrusion into the internal procedures and processes of other branches of Government. Courts have done so out of comity and, in particular, out of respect for the principle of separation of powers. But, at the same time, they have claimed the right as well as the duty to intervene in order to prevent a violation of the Constitution. The EVM case is therefore one of those where the intervention of the Courts is being sought to strike down legislative provisions. Since the matter is already before Court, my input on that one shall end here. I however must state that with the crop of legislators we have, clashes between law and politics will continue and our Courts are going to be a battleground.