Gaborone High Judge Justice Key Dingake has lashed out at Parliamentarians saying Parliament as the creations of the Constitution ought to be subject to no authority other than the Constitution itself. “Parliamentarians are oath bound to respect the Constitution, not just in words but in deeds,” he said. Dingake made this observation in a case in which Finance Minister Kenneth Matambo approached the High Court seeking to declare the adoption of the Special Select Committee unlawful and invalid. The Committee investigated allegations of corruption at Fengyue glass manufacturing plant in Palapye and he was Managing Director of the Corporation at the time.
Dingake said he is aware of the public interest in ensuring that Public entities are held accountable and that the executive, in all its formations, account to Parliament. “But this does not mean that shortcuts should be taken because administering justice in every case that comes to court is even a greater public interest. In the temple of justice, justice must prevail all times. In dispensing justice public condemnation or praise is irrelevant. Justice has its own pace and even if delayed it has an amazing way to restart itself in due course,” he said. Dingake said it would appear that whilst the Parliamentary Committee may be best placed to determine the best procedural approach to meeting its mandate; the Court is ultimately responsible for identifying what is not fair as a matter of law.
“In my view, to succeed in persuading the court to disregard any harm that may have been occasioned to the good name and reputation of the Applicant (Matambo), the Respondents (Parliament and Attorney General) must demonstrate countervailing considerations, if those rights are to be denied, which they were not able to do in this case. Dingake said the reality is that Matambo occupied a position akin to that of an accused. He said Matambo’s conduct lies at the centre of the Committee’s examination and is the major subject matter of the Committee’s report.
“It seems plain having regard to the above that the very least, the applicant should have been informed what adverse information was given against him and afforded a fair opportunity of answering,” said the judge. He said the process of scrutinising the implementation of Parliamentary decisions, such as the manner in which the Select Committee conducted its inquiry into BDC (and more especially whether it implied the rules of natural justice in so doing) does not impinge upon the ability of Parliament to conduct its core business, or dilutes the doctrine of Separation of Powers, as constitutionally entrenched.
“Judicial examination must be limited to ensuring that Parliament does not seek to exercise its powers in an unlawful way. It is not for the courts to sit in judgment on individual actions taken within parliamentary process. The Courts have a role in assisting the articulation of the extent of parliamentary privilege, but is for the Parliament itself to determine how it exercise that privilege it being mindful at all times of the constitutional limits of its powers and the rule of law imperatives,” said Dingake.
Bearing in mind the balancing between individual rights and Parliamentary privilege, the correct observance of Matambo’s Constitutional rights, Dingake said, would not impede the proper discharge by Parliament of its functions whilst on the other hand, the denial of access to Courts to Matambo would have gravely disadvantaged him and the prejudice he may suffer as a result may be irreparable. “It would have been unjust, having regard to the weighty issues raised in this matter to block its continuance on the basis of technicalities. No prejudice would be suffered by the Respondents by allowing this matter to proceed in the manner this court has done,” said the judge.
With respect to Section 3 of the National Assembly Powers and Privilege Act, Dingake emphasised that the language employed therein does not suggest that Parliament intended to exclude the jurisdiction of the Courts where the aggrieved party complains of breach of the principles of natural justice and legality. The Section in question states that “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.”
However, Dingake said the review does not harm or in any way undermine the mandate of Parliament to legislate; neither does it undermine Parliament’s powers to regulate internal affairs. “It would be a dark day in the legal history of this country if section 3, worded in the manner it is, is construed to block any person’s access to the courts. It is emphatically the province of the courts to construe the boundaries of Section 3. This is what the Constitution has decreed,” he said.
Dingake 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. Matambo’s lawyers had called on former Speaker Nasha and the then Chairman of the Committee, Abraham Kesupile, who had relied on Section 3, 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. But Parliament refused to withdraw the findings of the report.