Section 51 of the constitution reads ‘There shall be an Attorney General whose office shall be a public office…’
….The attorney general shall be the principal adviser to the Government of Botswana…
… in the exercise of the functions vested in him by section (3) of this section, the Attorney General shall not be subject to the direction or control of any other person or authority….
It has been noted that the doctrine of the separation of powers is fundamental in Botswana Constitution.
In my opinion, where there is a dispute between the Executive and the Legislature, the Attorney General (as part of the executive) can not make a ruling whether ‘the cabinet is within its right to proceed with negotiations on privatisation of Air Botswana.”
In terms section 51 of the constitution, The Attorney General must act impartially and independently.
‘The…Attorney General shall not be subject to the direction or control of any other person or authority.’
Attorney General is only limited to advising the government and instituting criminal proceedings on behalf of the state.
The Attorney General, as an executive arm of state, is not empowered to overrule the decision of parliament and if it develops such powers, it lays the basis of being used for political ends.
This would contribute to erosion of democracy.
The attorney General as a public office can not make political decisions.
The Attorney General has made its ruling public through the media and made some press releases.
This has the potential to be interpreted differently and different inferences can be drawn regarding the office of the Attorney General.
Is the Attorney General not playing a political role here?
These are the question that ordinary members of the public may begin to ask.
The independence of the Attorney General can not be overemphasized.
The independence of the Attorney General should be for the safety of our democracy. The Attorney General does not belong to any political party and must never serve any political purpose and must be seen to be independent.
The issue here is not whether the Attorney General is correct on the doctrine of the separation of powers namely Legislature, Executive and the Judiciary.
The Attorney General is not always correct in the interpretation of the law. An example that comes to mind is the Citizenship case where the Attorney General argued that a mother can not pass citizenship to her child.
It was at the Court of Appeal that the Attorney General lost the case as the Judges held it unconstitutional to deny Batswana women the right to pass citizenship to their children.
Since I am not a lawyer what I need to understand is whether the Attorney General’s ruling is binding on the legislature?
And, secondly, is it not unconstitutional for the Attorney General to overrule the decision of parliament?
By so doing is she now not operating within the sphere of the Judiciary?