Molefhi says mps are sitting unlawfully in parliament

  • Minister for the Office of the President confirms The Botswana Gazette Reporting
  • Despite MPs’ noncompliance no condonation applications expected at High Court
  • Molefhi confirms illegality and puts responsibility on Attorney General
  • Attorney General failed to answer the Botswana Gazette questions for over a year


Last week Friday, Umbrella for Democratic Change (UDC) Member of Parliament for Ramotswa, Honourable Samuel Rantuana asked parliament to confirm how many Members of Parliament (MP) had complied with the mandatory provisions of the Electoral Act which require MPs to disclose their campaign sources and spending after being elected. Rantuana further asked if MPs who had not complied had broken the law.

Minister for Presidential Affairs, Governance and Public Administration, Honourable Nonofo Molefhi confirmed The Botswana Gazette reporting from January and February 2018 that no MP had complied with the provisions of the Electoral Act and that all MP’s “appeared” to have broken the law. Molefhi informed Parliament to a demurrer of his colleagues, that their failure to comply did not constitute a crime because the fines of P50 per sitting, are to be collected by the Attorney General from proceedings to be instituted at the High Court and not the Director of Public Prosecutions in terms of the Constitution.

Rantuana, during a supplementary question highlighted that Section 87 of the Electoral Act indicates that noncompliance with the reporting provision shall amount to an illegal practice and that no MP may participate in the business of parliament until they have complied or approached the High Court for Condonation. Moelfhi confirmed the position but deferred further action to the Attorney General.

The Botswana Gazette, as it did last year, sought clarification from sitting MPs on whether they would approach the High Court for condonation, now that they had been formally informed of their noncompliance and that their continued sitting amounted to an unlawful practice.

The Speaker, Honourable Kokorwe did not reply to questions from the Botswana Gazette prior to going to press.
Member of Parliament for Tati East Honourable Samson Guma Moyo advised The Botswana Gazette that he was aware of the Ministers response and was in the process of seeking legal advice prior to making a decision as to whether to approach the High Court.

MPs Molao and Salakae both advised this publication that they would need to get legal advice before they could answer The Botswana Gazette, both acknowledged that they were aware that all parliamentarians were sitting unlawfully.

Alliance for Progressive Member of Parliament Honourable Kgoroba advised that while he was also aware of Molefhi’s response and that MPs are sitting unlawfully he would only approach Court if “circumstances compel me to” as the position affected all sitting MP’s.

Member of Parliament for Selebi-Phikwe West, Dithapelo Keorapetse on Friday requested that the legislation be scrapped pending an amendment to the Electoral Act.

Over 20 MPs did not respond to questions sent by this publication.

The Botswana Gazette in early 2018 broke the story of Members of Parliament sitting unlawfully since the October 2014 General Elections. Minister for Presidential Affairs Nonofo Molefhi on Friday confirmed to Parliament that the reporting was correct and that all MPs had failed to comply with the requirements of the Electoral Act.

The Botswana Gazette in January 2018 had received confirmation from the Independent Electoral Commission (IEC) that no member of parliament had filed the obligatory financial returns in accordance with the Electoral Act. A violation which renders all MPs being prohibited from sitting in and voting in the National Assembly.

At the time and 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. The Electoral Act however extends the role of the Electoral Officer to ensure MPs’ comply with all legislative requirements under the Electoral Act.

In 2018 this publication made numerous follow up with the Speaker to find out what remedial action she was going to take. The Speaker repeatedly deferred answering the questions on the grounds that she was unaware of the law and was seeking to inform herself. After a grace period for the speaker to obtain legal advice this publication did not receive a response from the Speaker. In a subsequent follow up The Botswana Gazette was informed that that the issue was complicated and had been referred to the Attorney General for a Legal Opinion, and that further queries should be addressed to the Attorney General Directly.

Attorney Generals Chambers however declined to confirm nor deny that an Opinion had been sought by the Speaker. The Botswana Gazette sent additional 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.

In March 2018, The Botswana Gazette once again followed up on its investigations 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 had been made aware, by this publication, of the Members of Parliaments violations of the Electoral Act for a year prior to the current confirmation by Molefhi. 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.