Constitution takes precedence over parliamentary proceedings


The realisation that Members of Parliament (MP) may lack profound erudition in the basic legal infrastructure that governs their work is an understatement. The case in point for this apparent lack of understanding of the Constitution in relation to the suspension of the Leader of Opposition (LoO), Dumelang Saleshando by the Speaker of the National Assembly, Phandu Skelemani, recently. Staff Writer OARABILE MOSIKARE argues that the Ontefetse Kenneth Matambo versus Speaker of the National Assembly and two other cases could be an induction course for all the MPs

Former finance minister Kenneth Matambo has sought to review and set aside the proceedings of the Select Committee of the National Assembly, and that of the National Assembly itself, primarily on the basis that the adoption of the Committee’s report by the National Assembly is a nullity and/or unlawful on account of violation of the principles of natural justice, in particular, the audi alteram partem rule.

In December 2011, the National Assembly adopted a resolution that a Special Select Committee of Parliament be appointed to investigate certain allegations relating to the Botswana Development Cooperation (BDC) and the Fengyue Glass Manufacturing Project.

Such committee, known as the Special Select Committee of Inquiry into the BDC project was in due course appointed. The committee carried out its proceedings over the course of 2012. The committee’s proceedings culminated in the adoption and issue of a report in December 2012. In July 2013, the Report was presented to and was adopted by the National Assembly.

The Report made findings critical of the applicant and damaging to his reputation. Matambo in court contended that the proceedings and findings of the Select Committee in so far as they damaged his good name and reputation are amendable to judicial review. But the respondents argued that Section 3 of the National Assembly (Powers and Privileges) Act ousts the jurisdiction of the Court to entertain this application.

In the Matambo ‘treatise’ Justice Professor Key Dingake authored in January 2015, he said Botswana unlike the United Kingdom is not a parliamentary democracy, but a constitutional democracy. Under a constitutional democracy, the National Assembly is supreme only in the exercise of legislative powers.  Parliament is not permitted to pass any law that is ultra vires the provisions of the Constitution. 

Dingake in his monumental judgement said in Botswana courts of competent jurisdiction are empowered to strike down any legislation passed by Parliament, which is ultra vires the Constitution.  “Whilst I accept that the courts should not readily trespass into the province of Parliament, this court should be extremely careful that it does not interpret the separation of powers in such a manner as to unduly deny an individual access to the courts and abdicate its role as the guardian of the rights of all individuals,” he said.

He added: “Many of us in the service of the law are familiar with the fact that our jurisprudence drips with phrases such as, ‘the court will not interfere with the internal operations of an institution’, that it will not ‘substitute its judgement’ for that of another decision maker.  These phrases are an articulation of the principle of deference, which in essence means judicial restraint.” 

In a constitutional democracy, such as Botswana, characterised as it is by loose separation of powers, deference is often necessary.  However, deference, if not properly exercised, may result in fundamental rights of individuals being curtailed by the bureaucratic state and its agencies, resulting in judicial review, an instrument devised to ensure legality and the rule of law being blunted and rendered ineffectual.  “Speaking for myself, judicial review is a necessary check on the decisions of the bureaucratic state and its agencies to ensure that they are lawful.”    

In my view, Dingake continued, to uphold the respondents’ contention that seeks to block the applicant’s access to court, undoubtedly degrades Matambo’s access to the courts and the rule of law.  Parliament like any other entity or individual in this country is subject to the laws of the land and it is not at liberty to unduly and unjustifiably ride rough shod over the rights of individuals as it pleases.

The applicant has both constitutional and common law rights to his good name and reputation, which the court is duty-bound to protect against whosoever - and such protection is not possible if the court’s jurisdiction is denied, or the courts develop cold feet when they ought to do what the law requires, without fear or favour.

“The Constitution, in its wisdom, withdrew certain matters from the vicissitudes of political controversy, to place them beyond the reach of elected representatives, and to place them in the hands of the courts, which are oath-bound to be independent and impartial.  The courts were created to be an intermediary between the people, the legislature and other entities, in order, among other things, to keep the former within the limits assigned to it.”

It is vital to the constitutional health of this republic that the respective branches of government maintain the appropriate separation of functions and powers.  Judicial examination must be limited to ensuring that Parliament does not seek to exercise its power in an unlawful way.  It is not for the courts to sit in judgement on individual actions taken within the parliamentary process.  The courts have a role in assisting the articulation of the extent of parliamentary privilege, but it is for Parliament itself to determine how it exercises that privilege, it being mindful at all times of the constitutional limits of its power and rule of law imperatives. 

Which brings us to the issue of Saleshando’s suspension. Saleshando was suspended last Tuesday after a vote won by ruling party members. The LoO had alleged that President Mokgweetsi Masisi’s relatives were involved in irregular procurement associated with the coronavirus (COVID-19) pandemic response.

Skelemani challenged Saleshando to provide evidence and subsequently rejected what was produced. Saleshando refused to withdraw his allegations, leading to vote on suspension. The tyranny of the majority prevailed and Saleshando urgently approached the High Court.

On Monday this week Justice Godfrey Radijeng ordered that Saleshando be granted an interim interdict pending the review proceedings to be instituted against Skelemani’s decision of July 28, 2020 suspending the LoO from participating in the proceedings of the National Assembly.

The applicant is to expeditiously institute review proceedings within 30 days of ‘this order’. The point is if Skelemani and MPs were inducted on the Matambo judgement and other precedents, they could not have wasted the taxpayers’ money by voting to suspend Saleshando. Saleshando has since succeeded with costs against respondents and the taxpayer is burdened again to pay for unnecessary expenditure.

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