- Silence protects Members of Parliament who continue sitting despite them breaking the law
- Attorney General fails to answer Gazette questions
- Attorney General fails to take remedial action
- What did they know and when did they know it
- Both complicit in failing to uphold legislation
The Speaker of the National Assembly has in the past been accused of partisanship in favour of the Botswana Democratic Party, however when it comes to Members of Parliament (MPs) violating election finance laws it appears that her partisanship extends not along political lines but to all MPs against her oath to uphold the constitution.
As confirmed to this publication by the Independent Electoral Commission (IEC) no member of parliament; not a single one, including the Speaker herself, has filed obligatory financial returns in accordance with the Electoral Act. The violation renders all MPs being prohibited from sitting in and voting in the National Assembly.
“Ignorance of the Law is no excuse” is the common phrase used by law enforcement. Recent reporting of the Botswana Police Service charging pedestrians for walking on the wrong side of the road is just one of the extreme lengths invoked by enforcement officials to justify padding the government coffers despite the public being ignorant of the law. When it comes to imposing fines and penalties on MPs, the same principles do not apply. Members of Parliament unlike the public enjoy the protection of the Speaker with both claiming ignorance of the law.
In its ongoing preparation of the 2019 election coverage, The Botswana Gazette identified party and individual candidate electoral finance regulations as a key area of knowing your member of parliament, their political party and the policy interests, driving by financial funding that are behind each. In order to bring this information to the public this publication requested that the IEC provide it with past financial returns for individual candidates for the 2014 and 2009 general election. The IEC in its response indicated that no returns had been filed. It acknowledged that the failure by the MPs was in violation of the Electoral Act.
In its nuanced response the IEC advised that it did not have powers of enforcement. The Electoral Act provides that it does. In an effort to justify its lack of enforcement of the Electoral Act, the IEC claimed that the election Writ issued by the President, stipulates the time period for the Returning Officer. This time period, according to the IEC is too short, covering a mere 30 days post the elections to allow it to ascertain whether MPs have complied with the filing of financial returns before sitting and voting in parliament as the MPs have 90 days in which to comply. The 90 days is calculated from the date of election.
As a result of the IEC’s response, which legal experts disagree with, this publication wrote to the Speaker informing her of the Electoral Act violation by all MPs. Despite numerous follow up calls and “whatsapp” messages to the Speaker to find out what remedial action she was going to take as Speaker, the Speaker repeatedly deferred answering the questions on the grounds that she was unaware of the law and was seeking to inform herself. After allowing for an additional week to pass and having received no response from the Speaker, this publication once again contacted her for comment, the response was that the issue was complicated and had been referred to the Attorney General for a Legal Opinion, and that The Botswana Gazette should follow it up with that office.
This publication immediately did so and was informed that Attorney General Chambers could neither confirm nor deny that an Opinion had been sought by the Speaker. The Botswana Gazette sent correspondence, copied to the Speaker, to the Attorney General seeking an explanation as to the lack of enforcement of the Electoral Act. Despite numerous follow ups by this publication no response to our request for information has been received from the Attorney General who has confirmed receiving the questionnaire.
Refusing to let the matter become dormant due to the lack of response, the Botswana Gazette once again followed up on its concerns with the Speaker and requested whether she had obtained a response from the Attorney General, and what action she had taken pursuant to that response. The Speaker advised that no response had been received. In addition, when pressed on what steps she had taken to pursue the matter, given its national importance, public interest and the integrity of parliament, the Speaker once gain advised that she had taken no action and was still awaiting the Opinion from the Attorney General.
Both the Speaker and the Attorney General have been made aware, by this publication, of the Members of Parliaments violations of the Electoral Act. No action has been taken, either to remedy the breach or to impose fines.
In terms of both the Constitution and the Electoral Act it is unlawful for a person to sit and vote in parliament who is not permitted to do so. Unlike members of the public who were recently fined for walking on the wrong side of the road without knowing that they were committing an offence, the MPs have been allowed to violate the law with impunity.
Approached for comment by the Botswana Gazette as to their failure to comply with the Electoral Act, the general response from Members of Parliament was that the fault lay with the IEC for not enforcing the provisions of the Act. When pointed out to MPs that the Act imposed a duty on them to comply, and that the IEC could only enforce the Act in the event they did not comply, the MPs stated that the Act had fallen into disuse.
According to the Court of Appeal and the High Court, an Act of Parliament that imposes obligations and duties can not fall into disuse. Criminal penalties and prohibitions, such as those imposed by the Constitution and the Electoral Act against Members of Parliament sitting unlawfully can not be ignored.
The Speaker and the Attorney General, either through negligence and or inaction are condoning, assuming the IEC is correct that the MP’s are in violation of the Electoral Act, the unlawful participation in parliament of elected officials that have failed to meet important campaign laws. The infamous question of “when did they know it, and what did they know” is clear in this investigation. Both the Attorney General and the Speaker became aware of the alleged Electoral Act violations, at least from the time this publication informed them. Their inaction, for whatever reason, and failure to inform the public, in the most public of institutions makes them complicit in covering up this gross violation of the law.
As previously reported, in an attempt to ascertain what remedial powers the Speaker could invoke to remove the MPs that have not complied, this publication can reiterate that the IEC has stated that it is all of them, this publication requested a copy of the Standing Orders, which govern parliamentary procedure, from the public relations officer for Parliament. The Public Relations Officer replied, “they are not for the public.” The Botswana Gazette has issued a Statutory Notice to the Attorney General challenging this decision.
The Speaker’s role, and her Oath of Office compel her to place the Constitution and the rule of law before all other considerations. In the past she has, at least publicly, claimed to have acted in accordance with her mandate in a timely manner. When faced with the daunting prospect of determining the lawfulness of sitting MP’s and the integrity of the institution she presides over her inability to make a decisive decision is fast undermining public confidence in her and parliament itself.
The Speaker is bound to ensure that the National Assembly preforms its functions, conducts proceedings in accordance with the law. That the National Assembly’s proceedings are conducted with order and decorum in order to elevate the calibre of debate and preserve the dignity of the National Assembly and its members. In seeking to achieve this the Speaker is guided by the Constitution, The Standing Orders, as well as, the Power, Privileges, and Immunities of Parliament. In failing to address the public concerns over non-compliance with the Electoral Act, the Speaker is failing in this duty and violating her Oath of Office. As is the Attorney General as the advisor to government.
The Speaker plays an essential role in ensuring a healthy parliamentary democracy. Impartiality of the Speaker is a key requirement and is deeply entrenched in parliamentary democracy but her oath is not to the MPs. It is to the Constitution and the rule of law.