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Khama loses Nasha battle

Publishing Date : 21 February, 2018

Author : TEFO PHEAGE


The Attorney General has lost a landmark case in which he was fighting the National Assembly  Speaker, Margaret Nasha  and challenging the National Assembly Standing Orders on the election of the Speaker and endorsement of the Vice-president. Reports identified President Lt Gen Ian Khama as the main sponsor of the legal battle, a development the AG denied.


Presenting arguments, the Attorney General (AG) argued that a show of hands in voting is implicitly required by the constitution of Botswana, and not expressly set out.  The AG posits that voting this way promotes transparency and accountability and is consistent with Commonwealth best practice, a view elaborately refuted by the opposition.


The judge however asked the AG what the Constitutions say in those countries – a question that the AG legal representattive, Chamme, failed to answer expressely, all he could say was that he was not  sure.
However, the opposition charged that the constitution does not in anywhere in its text dictate that any form of voting that takes place in parliament should be by way of show of hands, further adding that if Parliament had intended that all votes be by show of hands, it would have simply provided so.


“There is no logical reason why the framers of the constitution would require a secret ballot in respect of Specially Elected MPs and then require a show of hands in respect of the vacant positions,” opposition legal representatives said. They further observed that the AG misdirected herself in interpreting  the law.


On the urgency of the matter, the AG conceded that on the face of it, there is no urgent need to resolve the application that she has brought but contends that the urgency lies in the consequence that may befall the country if the matter is not urgently resolved.

ON THE SUBJECT OF CONSTITUTIONAL CRISIS
The AG further argued that the difference in opinion between Khama and the BDP on one hand and the opposition parties on the other creates a constitutional crisis if there is no judicial determination as to which one of them is correct.


The BDP legal team led by Parks Tafa who was also representing Khama said the matter is urgent as a suspended Parliament paralises other organs.On the previous elections and endorsements, he said mistakes have been done in the past but was quick to point out that ‘this however does not justify that we should leave them unattended and corrected.’


He said the AG as the principal legal advisor of the government is well within her rights to represent either of the arms of government or second any firm on her behalf. He contended that Nasha is no longer the Speaker of the National Assembly saying both the Speaker and Deputy posts are vacant once a proclamation has been issued and cannot be enjoined in the matter.This view was opposed by the two opposition parties who argued that the Speaker only vacates office at the new sitting of Parliament and not session.


Tafa clashed with Justice Walia when he said they have been dragged into the matter by the AG just like any political party but Walia dismissed Tafa’s remark saying the the BDP is actually the one which initiated the move. Tafa later conceded and apologised for trying to derail the court. “Apologies my Lord you are right, we alerted the AG and we obviously see things differently as political parties despite being co-cited as respondents with opposition parties, that is why we are in support of the AG’s case,” Tafa remarked in response.


He argued against the use of secret ballot in parliament saying it is not provided for. He further argued that he has an issue with the new Standing Orders which he said impinge on constitutional provisions. Standing orders, he said, should only regulate the business of parliament. But on the contrary the opposition lawyers argued that the constitution is silent on the type or system of voting to be used and has left that to Parliament to regulate its own affairs, and in this case through Standing Orders.


The opposition made this submitions in brief:  “that the application is not urgent as purported by the Attoney General and the BDP, that the Attonery General lacks legal standing to persue the remedies sought in this application, that the application, in so far as it relates to the election of the Speaker and Deputy Speaker is not ripe for adjudication, that the application is fatally defective on account of the failure to join the Clerck of the National Assembly, Speaker and Members of Parliament.”


The AG and the BDP however said the position of Speaker of the National Assembly is vacant as things stand and that the Cleck only carries the administrative duties of Parliament and cannot be enjoined in matters as this one.


On voting, the opposition argued that the secret ballot procedure has been used by both President Lt Gen Ian Khama and the former Vice President, Mompati Merafhe who were both elected using such procedures as well as Patrick balopi and Margaret Nasha.


“No constitutional crises arose following the endorsement of Khama and Merafhe through secret ballot. In fact no issue arose at all in respect of the endorsement of the duo,” argued the opposition parties. They added that the crises only exists in the minds of those who have brought the case to the courts further urging the courts not to allow itself to be brought into political party internal rows.


The opposition dismissed the submision that the case is urgent saying the urgency is self-created. “In so far as the principal complaint relates to the requirement of voting by secret  ballots,the urgency,if any,is clearly self created.it is self-created because because the requirement for a secret balot in respect of election of the Speaker and his Deputy, and the endorsement of the vice president, were introduced more than 16 years ago witht he knowledge and assistance of the AG.

Objectively speaking the AG had 16 years  to bring an application for a determination on whther the constition prohibits the of Speaker and/her Deputy,and endorsement of the Vice president by secret ballot,” argued the opposition parties’ lawyers.


Opposition lawyers sumitted that matters of great importance should never be determined in haste unless the circumstances dictate so. “A sixteen year delay is not to be overlooked simply because the applicant is the Attorney General.”


They said parliament can’t be suspended everytime when political parties differ on Standing Orders. They added that the framers of the constitution were not stupid to provide for separation of powers and empowered parliament to regulate its own procedures in terms of Section 76 (1) of the constituion without interference from the courts.


The opposition lawyers were of the view that the Attorney General has failed to demonstrate irreparable harm she seeks to forestall through her application. “She has also failed to set out in her founding affidavit what her legal interest in the above matter is. She impermisibly in her replying affidavit, for the first time asserts that she is acting in the public interest.

This raises two issues; firstly whether she can competently bring an application in her own name, without instruction from government or a public officer; and secondly,whether the public has legal standing in respect of the procedure of apponting  the Speaker,and her Deputy and endorsing the Vice president”.


They further argued that the AG is only empowered to bring proceedings on behalf of the government or public officer. “Ther is no provision in terms of the State Proceedings Act empowering the ag to institute proceedings on behalf of the public,” argued the opposition.

They further said that in terms of our common law,a person is not entitled to institute legal proceedings to protect the interest of the public or champion the cause of the people. “The general rule is therefore that a complainant cannot act on behalf of others where the only interest he posses is the establishment of the legality of the administrative action,” further argued the opposition legal teams.


In challenging the AG’s public interest argument, the opposition charged that the public has neither the legal interest nor right in respect of the election of Speaker and the Deputy Speaker. “It is a mater that the constitution has left entirely to members of Parliament, and there is no provision for public participation in the process.”


The opposition dismissed the AG and BDP’s arguments of a possibility of a constitutional crises that may arise from the matter saying  that the matter is not ripe for constitutional adjudication, “the doctrine of ripeness holds that the busines of a court is generally retrospective;it deals with sitiations or problems that have alrady crystalised,and not with prospective or hypothetical ones.”


The went on to say the last two Speakers have have been elected unopposed, and there is nothing before the court to suggest that there is likely to be a contest for the position of Speaker and Deputy. “It follows that the exercise of the Honourable court ‘s jurisdiction would be highly speculative,” argued the opposition parties.


IS NASHA’S VICTORY TEMPORARY?
A visibly concerned and worried Nasha was in court when the drama unfolded. She shook her head in disagreement and nodded in agreement at some of the arguments that were being advanced about her office by all the lawyers.


Nasha may be victorious for now. The former legislator has made it clear that she will fight for the independence of parliament. As the saying goes - the enemy of my enemy is my friend - this may well apply to Nasha and the opposition who spent sleepless nights defending her office and by extension Nasha herself without her sanction. Khama who fell out with Nasha after her hard-hitting and widely publicised autobiography, Madam Speaker Sir! is said to have expressed his revulsion with Nasha saying their working relation is sour.


Following the court’s decision on the matter, observers say the campaign to bring Nasha down will continue. The president and his inner circle is said to be lobbying for Gladys Kokorwe to replace Nasha.


The BDP caucus is said to have discussed the matter at length recently. It is understood that Nasha still has support within the BDP as many believe she was only airing their long held views about Khama’s leadership style and the Independence of Parliament.


Khama however is said to be banking on the new and inexperienced BDP MPs for supports following the defeat of most party stalwarts at the polls. Most of them are yet to be deeply entrenched into the BDP internal affairs and do not have good grasp of the issues and their origings and would not be much interested in ‘the internal politics’according to observers.


With Nasha having won the first round as a result the opposition parties’ victory, her main challenge still remains – will she triumph at the election of  Speaker of the National Assembly? Khama looks determined to win the second round which will be staged in Parliament.

Election of Speaker - Commonwealth

Tanzania-elected by a secret ballot innterms of Section 86 (3) of their constition

Namibia-elected by a secret ballot as required by Standing order 7 (e)

Zambia-Standing Order 5 (3) requires voting by secret ballot

Kenya –Standing Order 6.1 requires that the election of Speaker be by secret ballot

Canada –standing order 4 requires that that voting be by secret bballot

Australia- standing order 11 requires that the election of Speaker be by secret ballot

United Kingdom-standing order 1B requires that the voting be by secret ballot

African Union Parliament-Speaker elected by secret ballot

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