Tawana Moremi’s appeal to the Attorney General, Athaliah Molokomme, over a Court of Appeal judgement whose validity he contests has come to nought. Handing down judgement in a matter between the between Quarries Botswana and the Gamalete Development Trust, Justice Craig Howie found the language of a section of the constitution invoked by one of the parties to have what he termed “questionable meaning.” He decided to add words that “appear to have been omitted from the published version.”
The Maun West MP, himself a lawyer by profession, says that by inserting the omitted words, the judge was effectively using an unpublished version of the constitution to render judgement. That would contravene the Revision of Laws Act which says that Botswana laws shall be published and that where any error in omission in the laws comes to light, a law revision order must be effected. Tawana’s argument is that upon noticing such omission, the judge should have directed parliament to knock the provision in question into shape rather than do so himself. That sort of thing happened in at least two high-profile cases. One was in the Unity Dow case over the denial of citizenship to children fathered by foreign nationals. The other was when the Wayeyi pressure group, Kamanakao Association, challenged the validity of sections of the constitution that recognised only eight tribes over all others in the country. In both instances, the court directed parliament to amend the law.
Tawana’s contention is that Justice Howie should have done the same thing. “What he did instead was to rewrite the law which is something that a judge can’t do. What he should have done was to comply with the Revision of Laws Act,” the MP says. In the last sitting of parliament, he took the matter up with the Minister of Justice, Defence and Security, Dikgakgamatso Seretse, but the two men could not find common ground. Tawana then sought the intervention of the Attorney General, noting in his letter to her that the situation “may necessitate inquisition by the legislature.”
However, the response that the MP got was not helpful to his case and cause. Molokomme’s response doesn’t address the issue of whether what the Court of Appeal did was proper; rather she narrates the history of the matter and ends by stating that “please note that there is only one version of the Constitution of Botswana; the published version, and consequently, any other versions would not form part of our laws.” She then raises a point of order with regard to the manner in which the matter was referred to her office. Tawana wrote Molokomme directly but her response is addressed not to the MP but the Clerk of the National Assembly with specific attention to the Parliamentary Counsel, Thebe Ramokhua.
“You are directed to bring the contents of this letter to the Honourable Moremi (MP) and to urge Members of Parliament (MPs) to route all advice through your office. Depending on the query, you may advise or escalate to the Attorney General’s Chambers, as the case may be, as per the Guidelines for State Counsel Seconded to Other Government Ministries and Departments,” Molokomme writes.
