Saturday, April 4, 2020

The Attorney General is wrong; a second legal opinion

In vesting executive powers in the president, Section 47(1) states quite clearly that such vesting is subject to the provisions of the constitution.
Section 47(2), likewise, contains the words “unless it is otherwise provided”.

Ignoring these qualifications on the vesting of executive power and its exercise can lead to untenable conclusions.

Even though it is usually assumed that the executive is made up of the President, Vice President and Cabinet Ministers, a look at our constitution shows that the Cabinet is also a control structure or a feed back mechanism of the National Assembly.

The national assembly controls the president through Section 50(1), which states that Cabinet shall be responsible to the national assembly for all things done by the president in the discharge of his office.

The words “act in his own deliberate judgment” in Section 47(2) are irrelevant in the face of Section 50(1) for Section 47(1) is qualified.

It is quite possible for a minister, acting under the direction of the president under Section 50(4), to go ahead with negotiations for the privatization of Air Botswana.

This section deals with the business of government, and government means both parliament and the president. It seems to me that the president can only rely on this section if parliament has been dissolved, otherwise he needs parliament’s agreement as to what constitutes the business of government, and nothing in our constitution suggests that the president alone determines what the business of government is.

Motions of parliament are binding on the executive.
Section 40(1) provides that the salary and allowances of the president may be prescribed by the national assembly; quite clearly a motion to this effect is binding on the executive. A motion passed in terms of Section 47(3) vesting a function on an authority other than the president is binding on the president.

Section 88 deals with motions which need the president’s recommendation before the national assembly can proceed upon.

These are mostly those that deal with financial matters. This suggests that all other motions are allowed.

The president is a member of the national assembly, and to suggest that he is not bound by its resolutions without reference to constitutional provisions is not sustainable.

The word “recommendation” in Section 88 is significant; it should not be read as approval.
It does not make sense to suggest that if the president does not recommend a motion it is not binding on him.

Even in the absence of the president’s recommendation as long as the speaker allows the motion to be proceeded upon in parliament it is binding.

Reliance on the concept of separation of powers in the face of clear constitutional provisions which are, on the face of it, against such a concept is to skate on very thin ice.

The real issue is whether if you are responsible to some authority for undertaking a particular process, the authority to which you are responsible has to wait for you to complete the process, or whether the authority can interrupt the process at any stage by either slowing it down or terminating it.

It quite obviously does not make sense for a responsible authority to have to wait for a process which the authority is unhappy about to come to conclusion before either slowing it down or terminating it.

To suggest that an authority to which a party is responsible cannot terminate a process without reference to any law that prevents that authority from so doing is untenable.

In the Air Botswana case, parliament’s authority is founded on at least two major provisions of our constitution. Firstly Section 50(1) gives parliament control of the Cabinet.

The president may have control of individual ministers by virtue of Section 50(4) but he is subordinate to Cabinet in his control of ministers.
Parliament controls cabinet by virtue of the same section.

Secondly, in terms of Section 57 the president is a member of parliament, and is, therefore, bound by its resolutions. The only time that the president is not a member of parliament is when it is dissolved. At all material times he is bound by its resolutions.
His absence from parliament is irrelevant.

It is quite possible for the cabinet, with support of a few members of parliament, to form a quorum. To suggest that cabinet and a few members can pass a motion in parliament and then turn around and say it is not binding on cabinet is quite obviously untenable.

Privatization in Botswana is founded on policy, which is a parliamentary motion.

In terms of Section 127(11), the power to pass a motion includes power to amend the same in like manner.

This means if it takes a parliament majority to pass a motion on privatization it, likewise, takes parliament majority to amend the privatization motion. What needs to be decided is whether the Air Botswana motion amended the privatization policy.

I think it does not.

In terms of Section 127(11), if the Minister’s actions are founded on an Act of parliament, then parliament can remove or temper her actions by amending the law.

That is following the same procedure as it did in empowering her.

To suggest, as the Attorney General does, that this is about separation of powers is misleading and gives rise to the current unfortunate situation.
Michael Mothobi is partly right in suggesting that this is not an issue of separation of powers.

It becomes one though, where there is confusion as to what process informs the negotiations about Air Botswana.

Either the minister is following the privatization policy, in which case a parliamentary motion is enough to derail her, or she is following the law, in which case parliament can only derail her actions by amending the law.

The current situation arises out of lack of procedural discipline borne of failure to study our constitution on the part of both parliament and the executive.

The motion on Air Botswana is binding on the executive but is of little value in the current negotiations which are founded on statute.
It is binding at a policy level but useless at a statutory level because of the effect of Section 127(11) of our constitution, not because of separation of powers. The only separation that operates in the instant case is that of process not of powers.

Cabinet would do well not to be seen to be undermining parliament by clearly setting out the framework of the negotiations.

That is explaining that they are taking place under statute and not policy. This is particularly so given that cabinet is a control mechanism, and it does not look proper for a control mechanism to behave like it is thumping its nose at its master. It smacks of a lack of sophistication and maturity.

The sad thing about Botswana is that it has been stuck in the pre-independence transitional constitutional stage for too long.

At that stage the High Commissioner of Her Majesty’s Government retained most of the power and the legislature had very little.

At the time of independence, things changed.

Most of our leaders failed to appreciate the distinction between the transitional constitution and the independence constitution which empowered the legislature.

In terms of our constitution, the BDP in parliament controls the BDP in cabinet; it is not the other way round.

The sooner our leaders appreciate the nature of our constitution the better this country will be run.
There is no need to appeal to notions of democracy for it is quite clear in our constitution who the top dog is – it is the BDP in parliament.

The position of top dog is, however, valid within the context of clearly defined constitutional provisions as defined above.

The desire for public visibility that seems to inform our politicians should not be mistaken for the position of our constitution.

That politicians want to be cabinet ministers does not reflect the hierarchy inherent in our constitution.

As a nation, we cannot be held to ransom by the personal desires of politicians.

Our constitution takes precedence.

Political party leaders may wish to exert authority over their people but they must understand that it is constituencies that return members of parliament, and not political parties.

Political parties may sponsor members of parliament but whatever agreements they have with candidates do not take precedence over the constitution. A member of parliament is empowered and liberated by the constitution and such empowerment and liberation is not subject to political party agreements.

Shakespeare wrote something about tides and affairs of men, this is such a time for the BDP.

*Lediretse Molake is a private attorney and a practicing civil engineer