Gaborone High Court Judge Key Dingake has found that Parliament misdirected itself by placing reliance on Section 3 of the National Assembly (powers and Privilege) Act. Matambo had earlier notified Parliament of his intension to sue saying he was aggrieved by the findings of the Parliamentary Select Committee on the BDC-Fengyue Glass Manufacturing (Botswana) and its conclusions and recommendations as contained in the report and the manner in which the Committee conducted its hearing. But in response, the then Speaker of the National Assembly Margret Nasha stated that “I have been advised that your purported service on me of the aforestated letter offends, among other laws, the provision of Sections 5, 3 and Section 26 of the National Assembly (Powers and Privileges) Act Cap 02:05.”
According to Section 3 of the National Assembly as cited by Nasha, “No civil or criminal proceedings may be instituted against any Member for words spoken before, or written in a report to, the Assembly or its Committee or by reason of any matter or thing so brought by him by petition, Bill, motion or otherwise.” But Dingake is of the view that “to uphold the Respondents (Parliament and Attorney General)’s contention that seeks to block the Applicant (Matambo)’s access to court, undoubtedly degrades Applicant’s access to the court and the rule of law. Parliament like any other entity or individual in this country is subject to the laws of the land and it is not at liberty to unduly and unjustly ride rough shod over the rights of the individuals as it pleases.” Nasha had also placed reliance on Section 5 which also states that no process issued by any court in the exercise of its jurisdiction shall be served or executed within the precincts of the Assembly while the Assembly or a committee is sitting, for any criminal offence without the consent of the speaker.
Section 26 of the National Assembly that Nasha also made reference to also states that “Neither the Speaker nor any officer of the Assembly shall be subjected to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Speaker or such officer.” But Dingake found that Matambo “has both constitutional and common law rights to his good name and reputation which the court is duty bound to protect against whosoever and such protection is not possible if the court’s jurisdiction is denied, or the courts develop cold feed feet when it ought to do what the law requires, without fear or favour.
” In this case, no attempt was made by the Parliament and Attorney General to persuade the court of the underlying reasons of jurisdiction for seeking to oust the jurisdiction of the courts; no such reasons of justification exists, said Dingake. “In the finally analysis, it is my conclusion, for the reasons advanced above that that Section 3 of the National Assembly ) powers and Privilege) Act does not oust the jurisdiction of this court that this court’s scrutiny of the Report by Parliament was lawful or does not impugn upon the ability of Parliament to conduct its core business,” said Dingake.
Dingake said Section 3 has a limited and specific scope and purpose; it confirms the privileges of Parliament in relation to the discharge of its parliamentary functions. “For instance, it protects members of the National Assembly from defamation actions in relation to statements made during the course of parliamentary debate,” said Dingake. He said neither Section 3 nor Parliament’s traditional or customary privilege excluded the jurisdiction of the courts to consider and rule on the proceedings of Parliament or its committees where such proceedings are challenged on the grounds of a breach of natural justice and where the rights of individuals and or third parties are infringed.
Dingake said Parliament is bound by the rule of the law, and jurisdiction of the courts to adjudicate in a case where it is alleged that Parliament has infringed the rule of law not been ousted. “Where a defence of parliamentary privilege is raised as is in this case, the court would only uphold it if the language that is claimed excluded judicial review in unequivocal and firm, and such exclusion is truly necessary for the proper functioning of Parliament-bearing in mind that the courts are traditionally the guarding of individuals’ fundamental rights/ No such langue is used in Section 3 of the National Assembly Powers Privilege Act,” said Dingake.
The judge said he had “weighed Section 3 of the National Assembly Powers and Privileges Act in the balance, as I ought to, and found it wanting. It does not oust the jurisdiction of this court. The exclusion contended for is not necessary for the proper functioning of Parliament.” Dingake said Commission of inquiry similar to the Parliamentary Select Commission are the standard device for giving a fair hearing to individuals who are the subjects of investigation before recommendations are made to the person or body that has appointed the commission. “A basic rule of fairness is that a person who will be adversely affected by as act or a decision of the administration or authority shall be granted a hearing before he suffers detriment,” he said.
The judge said although Matambo appeared before the Select Committee as a witness, the outcomes of the report positioned him as a focal party to the inquiry instead. “I must state that although the Applicant was witness, it is plain to me having regard to the damaging nature of the accusations against him that he was for all intents and purposes an accused. He was in the view of the Committee a candidate of criminal investigation and or even prosecution. The Committee had all but concluded that the Applicant was guilty of grave transgressions and worthy of possible prosecution,” said Dingake. The role of the Court in case such as Matambo’s application, Dingake said, is to carve out a balance between the need for persons who are accused of serious transgressions and public interest the proper running of State entities while at the same time ensuring that any inquiry that ensues is conducted fairly and not oppressively.
“It is in the public interest that any person accused of wrong doing be afforded an opportunity to say his side of the story and defend his good name and reputation. Parliament contended that the rights which the applicant asserts in the case are typical rights afforded to a person accused in criminal proceedings or charged before an administrative tribunal and or the rights typical afforded to a witness in any proceedings, be they before and investigative committee or even a court of law,’ said the judge. Dingake said the National Assembly (Powers and Privileges Act in sections 14), spells out the privileges of witnesses, but does not clearly state what their rights especially when it is clear that such witnesses are for all intents and purposes the defendants. Dingake said witnesses like Matambo in an enquiry such “as the one we are dealing with occupy a somewhat precarious position.”
“If they are simply to be treated in the same way as witnesses in a court of law their position become precarious once it is apparent that their position is that of a witness but that of a party to proceedings who stands accused of certain misconduct, and this is what transpired at the Select Committee as evidenced by the findings of such Committee.,” he said. The judge also added that “their position becomes more invidious if findings or serious wrong doing that may attract criminal prosecution are made. In saying this, I don’t mean to dismiss the value of parliamentary and other inquiries in investigating matter of public concern, however that the position of those giving evidence to such inquiries is appreciated and that appropriate safeguards are built in.”
He said where there are more complex matters that the witness will be required to give evidence; the more important will be for the witness to have benefit of legal representation when giving evidence to ensure that the evidence is presented to the inquiry accurately.
“Courts have approached the matter of rights of witnesses who participate in an inquiry differently; however the general inclination seems to be in favour of extending procedural fairness to those witnesses who in effect are accused of misconduct or wrong doing I’m unapologically in favour of extending procedural fairness to witness who in effect find themselves accused of wrong doing Matambo’s lawyers had also called on Nasha and the then Chairman of the Committee, Abraham Kesupile, to withdraw the relevant adverse findings and insinuations made in the report against Matambo, failing which they intended to institute review proceedings against the Committee and the Speaker of Parliament.
Dingake found that the Select Committee’s findings as contained in its report that was subsequently adopted by the National Assembly violated the audi alteram partem (Hear the other side) rule and was therefore unlawful and need not decide the question whether the Committee and or the National Assembly exceeded its oversight and legislative functions when they proceeded to make pronouncements relating to criminal liability and the need for investigation. Dingake therefore ordered that the proceedings of the Committee, its findings and report that was adopted on 25 July 2013 by the National Assembly be set aside as it was unlawful.