Court of Appeal (Amendment) Bill, 2017: A case for parliamentary fraud
Following the judgment by Tafa J we seem to be headed to another storm. This is in relation to the extent to which retrospective legislation is permissible. Our parliament seems determined in beefing up the power of the institutions that may well protect and support them; or better still polluting institutions that may curb their abuse of power. How conscious they are of the potential consequences of such degradation I wouldn’t know. Their political manual is entitled: We Have the Numbers and because they have the numbers they can do anything they desire to do. This is parliamentary fraud.
The German and United States Constitutions forbid retrospective legislation in explicit language. In our case parliament is presumed to legislate for the future, but can also legislate for the past so long as it does so in clear and unequivocal language. Retrospective legislation must therefore be forbidden under any other constitution that has a separation of powers.
Furthermore, a judicial finding of law is retrospective to the last relevant legislative change and prospective until the next one; if it were only prospective, the judicial branch would be changing the law and thereby usurping a legislative function. But if a judicial finding of law is retrospective, a legislative change cannot be retrospective without usurping a judicial function.
The existence of a court presupposes the rule of law and therefore precludes the court from entertaining any proposition incompatible with the rule of law. The existence of a constitution presupposes the rule of law and therefore renders unconstitutional any attempt to subvert the rule of law. That constitutional impediment cannot be circumvented by legislation, because the legislative power is limited to the making of law, which by definition must be consistent with the rule of law; legislation incompatible with the rule of law is not law and is therefore beyond the legislative power.
If it is contrary to the rule of law, it is not on. The courts do not need to decide whether that statement is true or false. They only need to decide whether they have the guts to admit it. Among the minimum requirements of the rule of law is that the law be knowable. Therefore, if a retrospective law is to be valid, it must be knowable even before it has been passed. A law against murdering people because of their ethnicity meets that requirement. A law requiring you to inform Big Brother of a change in your circumstances does not. Neither does a law relating to taxation, given that the whole tax system is simply the current score in a never-ending contest between special-interest groups, each of which tries to portray its own interest as someone else’s interest or the national interest or a matter of principle.
This very amendment does not deal with issues of localisation of the Court of Appeal and fair representation of women. The veil of secrecy of appointment is retained. The Constitutional Court of South Africa provides that justices of the Constitutional Court must be citizens of South Africa. There can be hardly any legitimate justification why 50 years after independence, Botswana has not produced enough personnel to man the Court of Appeal and must continue importing justices from all over the world.