The ruling Botswana Democratic Party (BDP) and the Attorney General (AG) suffered another humiliating defeat last night when a panel of five Court of Appeal judges dismissed their appeal with costs.
The BDP and the AG had appealed the case they lost on Friday over the constitutionality of the Standing Orders with respect to the election of the Speaker, the Deputy Speaker and the endorsement of the Vice President. Delivering the unanimous short ruling on behalf of his colleagues, Judge President Ian Kirby said they had debated the central issues and come to the decision that the Parliamentary Standing Orders did not contravene any provision of the Constitution.
This was after the High Court on Sunday night granted the ruling party leave to appeal the November 7 judgment delivered by Justice Michael Leburu on behalf of Justices Tebogo Tau and Singh Walia. The AG had wanted the court to declare some Parliamentary Standing unconstitutional. The opposition Umbrella for Democratic Change (UDC) and the Botswana Congress Party (BCP) opposed the application while the BDP supported the AG’s application.
On Sunday Walia said he had taken into consideration the reasons advanced by the applicant’s lawyer Parks Tafa that there could be more repercussions to the general society if Parliament was to go on with the election of Speaker and Deputy Speaker and the endorsement of the Vice President and later on the Court of Appeal nullify the judgment. From the word go, it was clear, and judging by interjection of the Court of Appeal judges that the appeal stood on shaky grounds. First to draw blood was Justice Ian Kirby who told Tafa that his argument was circular. Another judge Isaac Lesetedi said he did not see what the BDP stood to lose when the Standing Orders were amended. In response Tafa said an open ballot enabled Members of Parliament (MPs) to be open to coercion. “Parliament does not make decisions in secret,” submitted Tafa.
He added that secret ballot allowed members to vote in a clandestine manner where they were not accountable to the electorate. This led to Lesetedi asking him if the MPs were dishonourable. The deputy AG Morulaganyi Chamme also fared badly during his submission. He could not answer Justice Gaongalelwe’s question about how the secret balloting offended the Constitution. Kirby also reminded Chamme that all the MPs including the then acting Minister of Presidential Affairs and Public Administration, Shaw Kgathi, consented to the secret balloting according to the papers before court. Chamme could not tell the court where the Constitution advocated for the show of hands when voting. “I am not advocating for the show of hands. In the affidavits we associated ourselves with open voting. Things done in Parliament are usually done openly,” submitted Chamme. He could not tell Chief Justice Maruping Dibotelo which method of voting he preferred. Attorney Dick Bayford led the team of attorneys for the UDC while Dutch Leburu led the BCP team.