Is it disregarding the rule of law and basic principles of constitutionalism? Does Parliament have powers to veto the executive's decision or is it just an illusion on the part of our MP's? I propose to discuss only the legal aspect of the issue.
"The posits of the law is that of positive law-the 'is' of law not the 'ought'. There would be the 'is' of law if it was to be applied scientifically." Jeremy Bentham
The above statement by the father of jurisprudence shall be my guiding principle in my discussion. The notion of separation of powers and the doctrine of the rule of law, which intends to limit the caprice and discretionary powers of the government seems to be the bone of contention in the Air Botswana issue. In the case of Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998(2) SA 374 (CC) the court held that, " The rule of law to the extent that it expresses this principle of legality is generally understood to be a fundamental principle of constitutional law. It seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. There is of course no doubt that the common law principle of ultra vires remain in the new constitutional order." We shall then try to establish the function of the legislature and the executive having been given a learned direction by the South African Constitutional Court, which is of high persuasive force to our courts.
Part IV, section 86 of the Constitution reads, "subject to the provisions of this constitution, Parliament shall have powers to make laws for the peace, order and good government of Botswana.' In short that's the primary function of our Parliament. In section 50 of the same Constitution we find the function of the cabinet, which states that its advising the president with respect to the policy of the government... subject to the provisions of the constitution and responsible to the National Assembly.
Does being responsible to the National Assembly give Parliament such powers to stop the executive arm of the government in its tracks upon exercise of its function? Can our Parliament veto the decisions of the executive? It shall be noted that under the Westminster constructional model which can be said to be unlike the American system there is insufficient balance and checks and usually the executive is having the final say in matters of policy. It's under the USA system whereby Congress can veto the executive decisions and/or appointment. Motions shall also be noted that are not laws hence they are of no binding force on the executive. The privatisation of Air Botswana was sanctioned by the same Parliament through law and it can only be stopped through law. To educate our honorable MP's a little, laws are passed as Bills as per section 87 of the Constitution not motions.
My point of departure shall be formulated by saying that legal, socio-political and ideological issues must not be intermingled in forming legal opinion, especially subjective emotional factors such as politics. According to my view, this was never a legal issue but matters of political ideologies. It's just the never-ending debates of privatisation against nationalisation, which is represented by colossal battle between capitalism and socialism. I cannot discuss the said contradictory legal opinions of Dr Athalia Molokomme and Lizo Ngcongco. I choose not to comment on hearsay because personally I have never seen any report penned by the Parliamentary Counsel. Until then I will not raise the issue.
In conclusion I hereby submit that cabinet is within its powers and acting within its legal limits as set by our Constitution. Secondly the said powers of Parliament are just imaginery, which might be due to ignorance or indifference on the part of MPs. If our legislature is feeling powerless maybe they should amend the Constitution, that is to say if they want the veto powers, but do they need them? I mean they are failing to use the little they have now by legislating. There is no rule of crisis in Botswana if the Air Botswana issue is to be used as a test. Maybe it's a case of corruption as the BCP alleges. The onus is on them to prove it. This is not a legal authority but a personal opinion hence I stand to be corrected.
Goemeone E. J. Mogomotsi
Kwaluseni Campus
Swaziland
