- Parliament suspended in 2014 due to Masisi appointment as VP, the curse continues;
- The Botswana Gazette continues its investigations of Members of Parliament sitting unlawfully,
- Minister of Presidential Affairs evasive in answering MP’s Keoraptse’s questions;
- IEC answers conflict with ministerial answers
- Attorney General- This is a matter for IEC not AG.
The suspension of Parliament due to the litigation arising from the appointment of Mokgweetsi Masisi as Vice President after the 2014 General Elections is haunting his career, now as the Head of the Nation, with a possibility of history repeating itself.
Not only are sources indicating that the Botswana Congress Party is preparing a legal challenge into the manner in which parliament implemented “Automactic Succession” but the validity of his entire Parliament is increasingly coming under scrutiny for failure to comply with the electoral law.
In fairness to the President, neither of the current legal quandaries are of his making as they predate his term of Office. President Masisi began his term as President on April 1st, 2018. Whether his appointment as Vice President triggered his unfortunate history with constitutional litigation or whether the misfortune arose due to a quirk of fate that ensured he would be inaugurated on a day associated worldwide with practical jokes remains to be seen.
Unlike the litigation which caused the commencement of parliament to be postponed in 2014, the current litigation will unlikely see the Botswana Democratic Party’s principle law firm, Collins Newman & Co. at the forefront of the current litigation.
The late Sir Ketumile Masire and Parks Tafa, the managing partner of the once powerful firm, have both attributed the constitutional amendment that allowed for the introduction of Automatic Succession. As a potential witness, either on affidavit or by giving evidence in court, Parks Tafa and consequently his law firm would be precluded from representing the Botswana Democratic Party and Masisi. In the event the firm does take up the appointment, any challenge to their representing the President would be a battle of the colossus. Collins Newman & Co, under different circumstances have previously soundly quashed such an application brought by Justice Dambe, when she was Director of Public Prosecutions, in criminal proceeding while representing the late Louis Nchindo.
The challenges facing Masisi however, neither begin nor end with his appointment. The Botswana Gazette’s ongoing investigations into the validity of members of parliament sitting and voting in parliament despite not having complied with the Electoral Act reveals a spate of conflicting and contradictory answers by key institutions.
Following The Botswana Gazette’s article “The Unlawful Parliament” three weeks ago, Botswana Congress Party Member of Parliament for Selebi Phikwe, Dithapelo Keaorapetse presented an urgent question in parliament to the Minister of Presidential Affairs to address the issues of noncompliance with the Electoral Act, and whether the MP’s continued sitting in Parliament was lawful if they had not complied with the Act.
The parliamentary questions arose following repeated requests by The Botswana Gazette, to the Speaker and the Attorney General to explain why the provisions of the Electoral Act were not being enforced. The requests for answers by this publication were not answered, with both the Speaker and Attorney General ultimately referring this publication back to the Independent Electoral Commission. The IEC in turn, deferring all questions to the Attorney General.
Keorapetse, who has regularly demanded government to answer for its violations of the rule of law and infringement of democratic principles, demanded that the Minister for Presidential Affairs, under whose mandate the IEC falls explain the legal position of Electoral Returns and the consequences flowing from a violation of the Act. The MP from Selebi Phikwe based his questions in Parliament on Section 87 of the Electoral Act which states “3) If in the case of a successful candidate at an election the return has not been rendered within the period prescribed in subsection (1) that candidate shall not thereafter sit or vote in the National Assembly until such return has been rendered or until the date of the condoning order, if any, excusing such failure.”
EVASIVE RESPONSES FROM PRESIDENTIAL AFFAIRS AND IEC?
Answering the MP’s question yesterday (April 9th, 2018), the Minister advised that the Act confers enforcement powers on the IEC because “…the act empowers the returning officer to report the defaulting candidates to the Attorney General.”
In answering questions put to it by The Botswana Gazette the IEC advised that “The Independent Electoral Commission is not a law enforcement agency and therefore doesn’t have the power to enforce Electoral Act provisions in respect of returns (Sections 80 to 89).”
The Minister and IEC appear in conflict on the enforcement of compliance and the mechanism available to the Returning Officer who must ensure that no member of parliament can sit and vote until their returns have been filed and vetted.
Molale, answering Keorapetse’ s second question on how the IEC enforced the provisions of the Act and if it was not doing so why, advised parliament that the IEC provided a “form” but had no provision for a “feedback mechanism.” The response by the Minister is at odds with the obligation of candidates to provide the returns and raises the concern as to why the IEC would provide a form but no mechanism to receive it once it is complete.
The IEC in addressing the lack of enforcement of the provisions of the Act, did not attribute the default to an absence of a “feedback mechanism.” The IEC contented that the lack of enforcement was due to the Returning Officers mandate being automatically terminated on the announcement of results, “The authority of IEC over elected members ends with release of an election result, ” wrote Osupile Maroba, the IEC’s spokesman to this publication, adding that “Candidates have 90 days within which they should comply with the rendering of election returns after taking oath as duly elected members of Parliament. This is the time when the temporary appointment of a returning officer for purposes of an election would have long expired with the announcement of election results.”
Apart from the contradictory nature of the responses by the Minister and the IEC, The Botswana Gazette’s research reveals that the Returning Officers mandate is only concluded when there has been full compliance with the Electoral Act following an election. Both the Electoral Act and the Writ of Election issued by the President confer the Returning Officer with the power to complete their functions “according to law.” Investigations by this publication further reveal that the form referred to by both the IEC and the Minister, has not been proscribed under the Electoral Act. Neither the IEC nor the Minister have advised on the origins of this form and how candidates are made aware of it.
Parliament was further advised by the Minister of Presidential Affairs, that the lack of a feedback mechanism rendered the provisions “inadequate in ensuring compliance” as, according to the Minister “the IEC does not have any proof of any submission of election expenses returns by candidates.” In response to this publication’s queries the IEC was emphatic. It was not, according to them that they did not have evidence of any MP filing returns, to the contrary the IEC categorically stated that “There are no returns submitted to IEC for the 2014 General Elections by any candidate after elections.”
MPS AND IEC DODGING RESPONSIBILITY?
Distancing the IEC from the failure to enforce the Electoral Act, Maroba shifted the responsibility to parliamentarians, but research indicates that the IEC cannot be entirely absolved of responsibility. The official position of the IEC contrasts with Section 87 (6) which imposes an obligation, as stated by the Minister, on the returning officer under the IEC, to report any contravention of the Act to the Attorney General for enforcement. The Returning Officer has the authority to “…further to demand from the candidate the return or information which it was his duty under this section to furnish. The Minister however, failed to advise parliament that the Electoral Act provides that the elected candidates themselves are under an obligation to file their Returns.”
During its own investigations, The Botswana Gazette specifically asked whether the IEC had lodged a report with the Attorney General over any contravention of the Act arising from the 2014 General Election, “over the last 2 election cycles has the IEC and/ or the Returning Officer lodged a report with the Attorney-General in respect of any contravention of section 87?” In an emailed response, copied to Head of Electoral Operations (Elections Unit) Dintle Sparkie Rapoo and Attorney Linchwe Tlhowe, Maroba evaded the question and reiterated that no MP had complied with the provisions of the Act in respect of filing Returns.
Confirming The Botswana Gazette’s reporting in “The Unlawful Parliament”, Maroba changed tack from his earlier position and confirmed that the IEC does not have the power to ignore the provisions of the Electoral Act, “IEC does not have the legal basis whatsoever to suspend or neglect the implementation of any binding provisions of the electoral laws and has never done so with any law including provisions of section 87. Relevant provisions of the Electoral laws which present challenges during implementation, are discussed by the IEC with electoral stakeholders after every general elections (sic) for possible amendment. Some provisions of Sections 80 to 89 of the Electoral Act are such areas which are subject of review currently to harmonise them with other sections of the electoral laws.”
Answering The Botswana Gazette’s question as to why the IEC had not sought to include amendments to the Electoral Act on electoral finance reporting under the controversial 2016 Electronic Voting Machine (EVM) amendment, Morabo declined to answer saying that such questions were irrelevant and had been answered in “many different fora.”
SHOULD MPs STILL BE SITTING IN PARLIAMENT?
The Minister of Presidential Affairs in response to a similar question by Keorapetse, lashed out at the Phikwe MP and advised that in order to introduce the above changes, “extensive benchmarking with relevant countries will be done to ensure compliance, transparency and enforcement as stated.”
The Minister of Presidential Affairs, in Parliament did not answer whether MPs were allowed to continue sitting and voting without having complied with the Act.
International election monitoring agencies place transparency in election funding as one of the key areas that can pose a threat to the fairness of elections. In contrast, the introduction of the Electronic Voting Machines (EVMs) saw no public benching marking until after the reforms were passed overnight at the close of the June 2016 session of Parliament.
The IEC has not refuted this publication’s reporting that sections 80 to 89 of the Electoral Act must be respected and that neither the IEC, the Speaker nor the Attorney General can ignore the legislation which is still in effect.
BOTSWANA GAZETTE GIVES AG 30 DAYS NOTICE
On the instructions of the Speaker, who declined to answer our questions, The Botswana Gazette wrote to the Attorney General two weeks ago requesting clarification from him as the legal advisor to government. Despite numerous follow ups, the Attorney General has declined to address our questions.
As a result of the inability to obtain information as to what disciplinary procedure can be taken against unlawfully sitting MPs, The Botswana Gazette requested a copy of the Parliamentary Standing Orders, which govern parliamentary procedure, including the sanctioning of MP’s for non-compliance with parliament’s regulations, from the National Assembly. In response to our request this publication was advised that they were “not for the public”. We have issued “Statutory Notice” to the Attorney General indicating that this publication will institute legal proceedings to have the refusal declared unlawful at the end of 30 days.
SHOULD MASISI DISSOLVE PARLIAMENT?
Already under siege, from his “automatic succession” legal eagles seem to opine that the President should dissolve parliament, as it would not be able to form a quorum as all MPs may be barred from sitting and voting.
“The only solution to rectify the failure of the IEC and the MPs to comply with the Act, is to dissolve parliament and call for national elections.”
However, with the legal challenge looming on the horizon as to the constitutional validity of Masisi exercising full executive powers, the question that arises is whether he can invoke the powers to dissolve parliament. As with his election as Vice President, it now appears that the more likely eventuality will be that court will suspend the sitting of parliament until the litigation has been resolved. The curse would appear to be continuing.