Saturday, February 27, 2021

Parliament, Cabinet clash over conflicting legal opinions

Parliament and Cabinet clashed on the parliament floor this week following conflicting legal opinions by the Attorney General and the Parliamentary Counsel on the Constitutional Amendment motion brought by Lobatse MP Nehemiah Modubule. The Minister for Presidential Affairs and Public Administration, Mokgweetsi Masisi threw Parliament into disarray Thursday afternoon when he revealed that the legal opinion he got from the Attorney General on the Constitution amendment clashed with the legal advice tendered by parliamentary Counsel, Thebeyame Ramokhua.

Masisi and other members of the executive wanted to go with the advice from the attorney General while Members of Parliament across the political divide insisted on going with the advice from the Parliamentary Counsel. The Attorney General is the Cabinet legal advisor, while the Parliamentary Counsel is appointed by the Attorney General as parliament legal advisor. MP for Molepolole South, Daniel Kwelagobe who is the longest serving member took issue with Minister Masisi for trying to force the Attorney General’s opinion on parliament. “I am surprised by what the minister is saying. How can someone appointed by the Attorney General say something different from what is said by his appointer?

Which legal advice should we use? The one from outsiders or from a person appointed to serve this house?” Speaker of the National Assembly, Margaret Nasha pleaded with MPs to adjourn the debate but backbenchers would not budge. Modubule had moved an amendment which sought to ensure that the “right of Members of Parliament to continue as members of the National Assembly up to and including the last day preceding a general election notwithstanding a resolution of Parliament.”

Masisi opposed the amendment saying the advice he got from the Attorney General was that the amendment would affect entrenched provisions of the Constitution which would then mean that a referendum would have to be called. However, parliamentary counsel, Thebe Ramokhua gave a different interpretation, saying the amendment of section 68(1) will not affect entrenched provisions. “I am little bit unease with conflicting decisions by the learned PC and the Attorney General Chambers. At a General Assembly lately the Attorney General office indicated the amendment will definitely affect section 42(3), 91 and 93 of the Constitution.” He then unsuccessfully moved for the adjournment but MPs outvoted him. 19 MPs voted against postponement, while 11 voted for the bill to be postponed. The 11 MPs who were in the House were ministers while majority were backbenchers from across the political divide.

5 MPs had abstained from voting. When debating the Bill, MP for Francistown South, Wynter Mmolotsi said that since Masisi has got legal advice from outside the House, he (Mmolotsi) has met his lawyer who advised that there was nothing wrong with the amendment. Parliamentarians voted in support of the motion, but the clash brought the independence of parliament into sharp focus. There has always been a sense that power is concentrated in the executive and MPs have in the past called for a renegotiation of executive-legislative relations that is more favorable for the legislature.

Interestingly, parliamentary counsel, Thebe Ramokhua has authored a paper where he speaks of the pains of serving the Executive and Legislature at the same time. In his paper, Ramokhua says parliament is an arena ordinarily thick with political intrigue. He says the challenge of walking the tight rope of neutrality and the rendering of balanced and objective legal advice is an intrinsic part of a day in the life of a Parliamentary legal counsel.

“What compounds the playing field in Botswana all the more, is that the Parliamentary Legal Counsel is de-facto a member of the Attorney General’s Chambers which serves the executive arm of Government for the better part of the time and is a mere secondee to the legislature. The challenge of allegiance, in serving at the confluence of the two arms of government, is one that demands the singular discharge of objective legal advice, at the pain of perceptions that may be generated in the clash of interests between the two arms of government.

This conflict of interest, is all the more heightened, by the fact that the Botswana Parliamentary service is not independent from the executive, and continues to be subordinated to the executive arm of Government, with the consequent challenges that are readily discernible to the detriment of the legislature.” He said these matters of conflict of interest, which all too often the parliamentary counsel has to contend with, are at the heart of an emerging national debate on the question of the independence of parliament.

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