The Attorney General, Athaliah Molokomme is serving the ruling Botswana Democratic Party (BDP) and its president Lt Gen Ian Khama and not the interest of the public. This emerges in court records filed in a case in which the Attorney General, the BDP and President Khama want to strike down the Parliament Standing orders which prescribe that the election of the Speaker, Deputy Speaker and the endorsement of the Vice President should be by secret ballot instead of by show of hands.
The Attorney General has filed an urgent application with the High Court in Gaborone to have the Standing Orders declared unconstitutional before Parliament can convene to elect the House Speaker and endorse President Khama’s choice of Vice president. The bid by Molokomme Khama and the BDP is being opposed by the Umbrella for Democratic Change (UDC) and the Botswana Congress Party (BCP). The decision by the Attorney General follows a letter from BDP lawyers, Collins Newman & Company dated 23 October 2014 and addressed to the Clerk of the National Assembly, the Speaker of the National Assembly and the Attorney General. In the letter, Collins Newman & Company claimed that the Constitution envisages the election of Speaker, Deputy Speaker and endorsement of Vice President “by simple majority, by show of hands.”
As it turned out, Collins Newman & Company was wrong because the Constitution does not state whether voting should be by show of hand or by secret voting. In his answering affidavit, UDC Vice President Ndaba Gaolatlhe points out that Collins Newman & Company were wrong and went on to state, “it strains my credulity as to how the Attorney General missed this and chose instead to give credence” to the Collins Newman and Company’s version of interpretation. Gaolatlhe states that the position adopted by the Attorney General to launch the application merely seeks to serve the interest of the BDP and not those of the public as she claims.
Gaolatlhe further states that, “it also baffles me as to why the Attorney General did not raise any demur to the fact that” Collins Newman and Company chose not to address their letter to the UDC and the BCP when they are clearly interested parties in the issue. Both Molokomme and the BDP are in agreement that the Standing orders should be struck down, and there are whispers that had the UDC not “fortuitously happened upon” the correspondence between Collins Newman & Company and the Attorney General, the latter may have acceded to the BDP demands or even obtained an order by consent from court to have the Standing Orders struck down. In the letter to the Attorney General, Collins Newman & Company stated that they were acting for the BDP and President Khama.
In his answering affidavit, Gaolatlhe accuses the Attorney General of not accurately representing the contents of the letter from Collins Newman and Company “the firm did not say they represented only the BDP as she suggests. In addition the layers said they represented the President of the Republic of Botswana. The firm’s representation of the latter could only have been in his official capacity and not in his personal capacity considering the subject matter of the instructions, being the striking down of certain Standing Orders.
On the other hand, the Attorney General as the principal legal advisor to the President does not say she instructed Collins Newman & Company to write the said letter to her! Clearly there is a conflict of interest in this case, which the Attorney General chooses to gloss over in her affidavit.” It emerges in the court records that Molokomme had a meeting with the Speaker of the National Assembly, Margaret Nasha and the Clerk of the National Assembly Barbara Dithapo to discuss the letter of demand from Collins Newman & Company. Indications are that the Speaker and the Clark disagreed with the advice from the Attorney General and would not give her the powers of attorney to challenge the Standing orders in court.
Gaolatlhe in his answering affidavit points out that the Attorney General “fails to take the court into her confidence by disclosing the respective positions and attitudes adopted by the Clerk and the Speaker of the National Assembly on the contents of Collins Newman and Company’s letter aforesaid during the meeting she held with them. Of note, she does not that the two, who are clearly interested parties, shared the view similar to that advanced by the BDP and the President nor does she say the Clerk and the Speaker instructed her to launch the present proceedings.” The UDC challenges Molokomme’s authority to launch the court action against the Parliament standing orders since she does not have instruction from the Speaker and the Clerk.
In her founding papers, Molokomme states that she instituted the court application in her capacity as legal advisor to government. In his answering papers, Gaolatlhe states that, “It is common cause that the government comprises three organs, the Executive, the Legislature and the Judiciary. Precisely as to which arm of Government Molokomme represents remains a mystery.