Thursday, October 1, 2020

“Her Majesty The Queen and the Intelligence Bill”

According to Section 76(1) of our constitution, the National Assembly may regulate its own procedure. It is this power that has allowed the legislature to formulate its standing orders, or procedural rules.
According to Section 86 of our constitution, the National Assembly’s function is to make laws for the peace, order and good government of Botswana. In terms of Section 49 of the Interpretation Act the definition of function includes, duty. So the National Assembly has a duty to make laws for the peace, order and good government of the country.

Where Standing Orders prevent parliament from carrying out its duties under Section 86 of the constitution, the constitution takes precedence. If as has been suggested, parliament cannot discuss amendments proposed by members of the opposition parties, because of the Standing Orders, then parliament is not upholding the constitution.
The duty to make law that promotes peace, order and good government is not subject to Standing Orders, for they are not of the same constitutional level. Section 76(2) of the constitution states that the participation of any person not entitled to participate in the proceedings of the National Assembly shall not invalidate those proceedings. Surely participation of a non member is a greater evil than discussing an amendment by legitimate members, irrespective of who noticed the amendment.

The Standing Orders cannot be used to shut parliament’s eyes to sound propositions, for to do so will be incompatible with discharging the duty to make good laws.

The concept of Cabinet collective responsibility cannot be used as an impregnable veil that absolves members of the National Assembly from the duty to make good laws. Even if it were only Cabinet Ministers present and voting in parliament the duty to make good law will still be valid. Section 86 of our constitution still requires cabinet ministers to apply the test of whether the proposed law promotes peace, order and good government. The ministers cannot hide behind collective responsibility, for the principle does not take precedence over our constitution.

Even if ministers had at cabinet level agreed, through whatever process they take to reach conclusions on issues, as members of parliament they are duty bound to uphold Section 86 of the constitution.

A minister is at liberty to differ with his cabinet colleagues at parliament.

The concept of collective responsibility is not a straight jacket that limits the freedom given to members of parliament who happen to be ministers. Cabinet ministers who sponsor particular bills cannot hold their colleagues to ransom through the use of collective responsibility.
Even if they could, such collective responsibility is to parliament and not to cabinet itself or to a particular minister.

In terms of Section 88 of our constitution the role of ministers in parliament when making laws is to signal the Presidents recommendation of a particular bill. Their identity as ministers exists temporarily it does not separate them from ordinary members of parliament, for cabinet is not part of parliament.

The division of members of parliament into the front bench, back bench and opposition is not part of our constitution and is therefore of no legal significance. It cannot therefore be used to avoid the duty to make laws in accordance with Section 86. Identifying ministers by their cabinet portfolios is of no legal significance.

Section 127(13) suggests that interpretation of the constitution should be related to the Acts of the United Kingdom parliament. One would therefore expect parliament to seek advice on how the United Kingdom parliament treats issues of national security. This is particularly important when one considers that there are very few lawyers in parliament.

Constitutional provisions that deal with personal liberties state that actions can be challenged if they are deemed not reasonably justifiable in a democratic society. It seems to me that the greater society must have an opportunity to make representation on a proposed law that requires this test. It is not proper that a few individuals should make democracy a question for the courts through failure to accommodate others in the formulation of this law.

Members of Parliament will, in my view, be unreasonable to believe that they are the only ones who know what is best for this country.

Membership of parliament does not magically make someone a genius. Members of parliament should emulate Khama the Great, who sometimes refused to negotiate when he did not have the necessary knowledge. If he could recognize his limitations why can lesser mortals not do so?

Our forefathers sought protection from Mmamosadinyana and we seem to need the same through the use of section 127(13). Much as it may offend proponents of independent thought, our constitution is a creation of the colonial power. The colonial power did not just leave a legacy for parliament but for ordinary citizens also.
In terms of Section 26 of the Interpretation Act, every enactment shall be deemed remedial and for the public good. It is not proper for a few individuals, no matter how well intentioned, to reserve for themselves the privilege to determine what is in the public good. Botswana has cultural roots of modesty and accommodation of others.

Enactments or laws must in terms of the Interpretation Act be deemed to correct a deficiency, not to create one. The leadership of this country must convince the nation of the solution that it seeks to provide to an identified problem. To speculate that there are political and economic threats to the nation and to propose legislation that seems to target citizen civil liberties cannot be deemed appropriate. It is a failure to identify a problem and to come up with appropriate solutions. The state has at its disposal capable men and women, who can articulate what the problem is and propose solutions.

There is no need to behave as if such human intellectual capital does not exist.

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