The impasse is unprecedented. At no time in its 48 year history has the country ever been caught functioning with only two arms of Government- the Executive and Judiciary! Yet it has happened, hard on the heels of the defining moment of the country’s 9th general election whose pleasantly shocking results have set the whole nation in a frenzy of expectation.
For the first time ever the combined numbers of the Opposition parties in Parliament have reached 20 in a 57-member National Assembly. The Botswana Democratic Party managed 37 MPs, eight down from its 45 in the last Parliament.
And in what now amounts to a preemptive strike in the eyes of the Opposition, the Attorney General has ‘ambushed’ the will of the people by delaying the commencement of the business of the Legislature by challenging the legality of certain provisions contained in the amended Standing Orders of the 10th Parliament.
Just when the euphoria of the election outcome was about to reach a crescendo with the public eagerly anticipating the election of the Speaker, Deputy Speaker and endorsement of the Vice President, the AG’s urgent constitutional application which seeks the court to declare Standing Orders 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.11, 4.14 and 6.1 unconstitutional and ultra vires section 89 (5) as read with sections 39, 59, 60 and 70 of the Constitution- has put a spanner in the works! The Standing Orders were amended through a motion by BDP MP, Prince Maele in the last Parliament and sought to exert the unfettered independence of the Legislature by enjoining the doctrine of separation of powers. They enjoyed substantive support of both the Opposition MPs and most of the then BDP backbenchers. According to an insider these Orders were passed by the BDP MPs at a time when the party was divided.
Further, the Executive members were allegedly away on a retreat on that day. The Orders prescribe the manner through which Parliament will conduct the election of the Speaker, the Deputy Speaker and the Vice President; being by secret ballot, which conduct represents a clear departure from past practice, which was mainly by show of hands. The AG Athaliah Molokomme contends that these amendments are offensive and violate the constitution. She has since served all parties that had representation in the last Parliament- Umbrella for Democratic Change (UDC), Botswana Congress Party (BCP) and Botswana Democratic Party (BDP) with court papers. But the 1st respondent, UDC, is adamant that these Standing Orders are constitutional and not unoffending.
The party’s legal team will cite Section 74 of the Constitution, which provides, “Save as otherwise prescribed in this Constitution, any question proposed for decision in the National Assembly shall be determined by majority of the votes of the Members present and voting.” This envisages that decision making in the Assembly shall be by majority vote, although it does not prescribe the manner of voting. However, they will also cite Section 76 (1), which provides that, “Subject to the provisions of this Constitution, the National Assembly may regulate its own procedure.”
And on this score the Opposition is certain the 10th Parliament did not violate the Constitution by amending its Standing Orders to regulate its procedure. However, attorneys for the BDP and the AGs are convinced that the Standing Orders in question makes requirements that constitute an amendment, edition or substitution of Sections 39, 59 and 60 of the Constitution by “introducing new elements that were not in the said Constitution, contrary to Section 89 (5). Section 89 permits, governs and safeguards the manner in which provisions of the Constitution could be amended, substituted, edited or replaced. While Section 89 (5) warns that (a) reference to any provision of this Constitution include references to any provision of a law that alters that provision, and (b) references to the alteration of any provision of this Constitution include references to the amendment, modification or re-enactment, with or without modification, of that provision, the suspension or repeal of that provision and the making of a different provision in lieu thereof.” The other Sections particularly 39 of the Constitution provides for the appointment of the VP, while Sec. 59 is on the election of the Speaker.
It says, “There shall be a Speaker of the National Assembly who shall be elected by the Members of the Assembly from among persons who are Members of the Assembly or from among persons who are not Members of the Assembly.” On Tuesday the Gaborone High Court advised the parties to file their replying affidavits and postponed the matter to November 6. According to legal experts the first session of Parliament has to happen 30 days from the date of the general election. This means that the cut-off date is November 24 during which this impasse should have been resolved, failing this, it would mean the country will be operating only with the Judiciary and the Executive. In fact on Wednesday President Khama had already issued a Proclamation for the convening of Parliament the next day (yesterday).
BCP Attorney Martin Dingake was certain the purpose of the meeting would be to swear in all the elected Members of Parliament in order to pave way for President Ian Khama to choose his Cabinet so that Government business can continue. The election of the Cabinet is the sole prerogative of the President. The session was expected to be presided over by the Clerk of the National Assembly.
Parliament would then be adjourned after the MPs have been sworn in. Political pundits say this impasse was a long time coming. It started with Khama going into the election without a running mate. This created an environment of confusion, as many in the BDP began positioning themselves for the Vice Presidency. Dingake says the President’s succession plan has backfired and that he now has to deal with it in the open.
The names of Thapelo Olopeng, Unity Dow and Kitso Mokaila have been mentioned as ‘stopover’ appointments in lieu of Tshekedi Khama’s substantive appointment as Vice President just before Khama vacates office in 2018. Others however believe that Khama has his eyes on Pelonomi Venson and Nonofho Molefhi since he has effectively dealt away factional tendencies in the party.