Botswana govt to stop dancing to SA tune

BAME PIET
Staff Writer | Tuesday June 28, 2011 00:00

 

These undertakings are made during extradition processes of suspects who cross into South Africa after committing crimes in Botswana.

Addressing a workshop for Members of Parliament yesterday, on the issue of separation of powers for the three arms of government, she said the practice amounts to interference by the executive over the independence of the judiciary, and also unfair to other suspects, or convicts who face similar charges to those who fled to South Africa.

In her address, as the Principal Legal Advisor of the three arms, the AG outlined instances in Botswana that make such separation of powers a big challenge to the whole idea behind the concept/doctrine.

She said that originally, the separation of powers meant that the same persons should not form part of more than one of the three organs of government - ministers should not sit in Parliament; that one organ of government should not control or interfere with the work of another - the judiciary should be independent of the executive; that one organ of government should not exercise the functions of another - the ministers should not have legislative powers.She said that in the context of Botswana, the Constitution allows selection of ministers from Parliamentarians. 'Cabinet ministers are also empowered by legislation to enact subsidiary legislation in certain cases, without resort to Parliament.

The state president appoints magistrates and judges on the advice of the Judicial Service Commission, although they belong to the judicial branch of government,' she said.

She added that nowhere in the world is the doctrine of separation of powers perfect and should not be conceived as a rigid rule that completely prevents one organ from performing any of the functions normally performed by the other.  However, the AG said that democratic countries continue to hold on to the general rule that lawmaking is the preserve of the legislature; the responsibility of the executive is to run the day-to-day affairs of the country, while the interpretation of laws and adjudication of disputes is the sphere of the judiciary.

She stated that the Botswana Constitution vests executive power in the President, and provides that the cabinet shall advise him or her on matters of government policy.

Section 86 of the Constitution, she said, vests Parliament with the power of making laws for peace, order and good governance of Botswana, whilst the power to interprete the law, and adjudicate in disputes, is vested in the judiciary, especially the High Court and Court of Appeal, which are both superior courts of record provided in the constitution.

'The doctrine of separation of powers necessarily implies a system of checks and balances on each of the three branches of government. These checks and balances are imposed on all three, not only on the executive, as is sometimes assumed,' she said.

The AG said that checks and balances on the three arms of government have proved to be effective, as the judiciary is empowered to strike unconstitutional statutory instruments passed by Parliamentarians; legislature is empowered to amend government bills at committee stage; the president is empowered to extend mercy to people sentenced to death or many years through the prerogative mercy or presidential pardon.

'It is generally accepted that a strict separation of powers, where the branches of government exist in three watertight compartments, is not always possible, taking into account certain practical realities.  Moreover, tensions can and do result between the three branches where one perceives that the other has overstepped its mandate and is operating in forbidden territory,' she said.

Among the attendants are the Deputy Speaker of the United Kingdom House of Commons Dawn Primarolo and some UK legislators. The workshop ends tomorrow.