Bots respects decision on VP, speaker election case
Gaborone – The government of Botswana says it will respect and abide by the Court of Appeal upholding the earlier ruling of the High Court that the Parliamentary Standing Orders governing the election of the speaker, deputy speaker and endorsement of the vice president are constitutional.
The matter was originally brought before the court by the attorney general and supported by the ruling Botswana Democratic Party (BDP) to bring clarity over what had been judged to be a matter of law.
“Now that the highest court has made its ruling, government accepts that the matter has been resolved and wishes to assure the public that it will respect and fully implement the decision of the court. This is in keeping the Botswana government’s commitment to the rule of law and a recognition that the government at all times derives its authority from the supreme law of the Constitution,” said government spokesperson, Jeff Ramsay.
Parliamentary proceedings have been suspended for more than two weeks after general elections last month that returned the ruling Botswana Democratic Party to power.
According to Ramsay, Parliament was to convene on November 12 to elect and nominate the speaker and deputy speaker as well as endorses the country’s vice president.
Dismissing the case before the appeal, the High Court had ruled that the endorsement of the vice president and the choice of the speaker and deputy speaker by way of secret ballot was the continuation of the general elections.
Justice Michael Leburu, who led the three judge-panel, noted that “the right to vote is an indispensable feature of our democracy. It is, therefore, important that voting must be free from intimidation and/or coercion. The Constitution recognizes a right to vote in terms of Section 67.”
He said “the freedom and fairness of the voting process is assessed by secrecy of the ballot and the freeness of voting. The freeness of such voting is intrinsically intertwined with the freedom of express as guaranteed in our Constitution”.
“A secret ballot”, Leburu argued, “is a hallmark of a free and fair election within our representative democracy. Our national election is premised on secret ballot as stated in the Electoral Act which derives its validity from the Constitution.
“It is the general tenor and sprit of our Constitution that elections should be free and fair.
The election of the speaker, the deputy speaker and the endorsement of the vice president, in the present circumstances, a continuation or forms the substratum or the just-ended general elections that recognises a secret ballot.”
Section 76(1), Leburu said, granted Parliament residual powers to regulate the election of speaker, deputy speaker and endorsement of vice president.
“It is on the basis of this syllogistic reasoning that I determine that all the Standing Orders under attack pass the Constitutional validity test,” said Leburu. And having determined that the said parliamentary privilege to promulgate Standing Order is constitutional, then the court has no jurisdiction to enquire on the lawful internal process of the National Assembly, otherwise the court will be intruding into the affairs of another branch of government, he said.
While the Botswana Democratic Party (BDP) was cited together with Umbrella for Democratic Change (UDC) and Botswana Congress Party (BCP) as Respondents, the former turned tables and supported the attorney general when the case resumed later.
Both the attorney general and BDP lawyers argued that the election for the speaker and deputy speaker by way of raising hands ensured that there is transparency and that MPs were accountable to the voters.
On the other hand, the opposition argued that there was nothing wrong with the Standing Orders, saying casting of vote using a secret ballot, is an international practice as it promotes freedom of expression.
They also argued that secret ballot wards off possibilities of intimidation and victimisation.
While he said that the Court of Appeal would give reasons on why it upheld the decision of the High Court, the Court’s President Ian Kirby ruled that the standing orders of Parliament relating to the election of speaker, deputy speaker and the endorsement of the vice president by secret ballots and the accompanying procedures did not contravene any of the provisions of the constitution.
Kirby said accordingly the appeal was dismissed, the two appellants, BDP and AG, were ordered to jointly pay the costs of the two respondents, being Botswana Congress Party (BCP) and Umbrella for Democratic Change (UDC), including the costs of two counsels. The reasons for the dismissal will be given at a day to be notified.
Kirby and his colleagues, justices Stephen Gaongalelwe, Elijah Legwaila, Isaac Lesetedi and Chief Justice Maruping Dibotelo, unanimously agreed on the decision.