Botswana Democratic Party and Another V Umbrella For Democratic Change and Another (2018) 2 BLR 60 (CA)

Source:
Botswana Law Reports (1964 to 2018(2))/CHRONOLOGICAL LISTING OF CASES 1964 2019 Volume 3/2018 (2)/Cases Reported/BOTSWANA DEMOCRATIC PARTY
AND ANOTHER v UMBRELLA FOR DEMOCRATIC CHANGE AND ANOTHER [2018] 2 BLR 60 (CA)
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http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/353/359/363?f=templates$fn=default.htm
BOTSWANA DEMOCRATIC PARTY AND ANOTHER v UMBRELLA FOR DEMOCRATIC CHANGE AND ANOTHER [2018] 2 BLR 60 (CA)
Citation [2018] 2 BLR 60 (CA) A
Court Court of Appeal, Gaborone
Case No Civ App No 114 of 2014
Judge Kirby JP, Dibotelo CJ, Legwaila, Lesetedi and Gaongalelwe JJA
Judgment 8 December 2014
Counsel P Tafa (with B Machinya, D MakatiMpho, B Matenge, T K Mvungama, M Kaluzi and E Mosime) for the
first appellant
M Chamme (with O S Rammidi) for the second appellant.
D Bayford (with J C Salbany, O Garebamono and M M Chilisa) for the first respondent.
B D Leburu (with K S Botlhole, L M Dingake and B U Manewe) for the second respondent. B
Annotations
Flynote
Parliament — Standing Orders — Voting to elect Speaker, Deputy Speaker and endorsement of Vice President by secret ballot — No provision in
Constitution providing for open vote — Nothing objectionable about secret ballot and not contrary to policy and objectives of Constitution —
National Assembly (Powers and Privileges) Act (Cap 02:05), s 19(i). C
Headnote
The appellants had been unsuccessful in their attempt in the High Court to have the provisions of the Standing Orders of Parliament providing
for the election of the Speaker and the Deputy Speaker, and for the endorsement of the Vice President to be by secret ballot declared
unconstitutional. On appeal, D
Held: (1) Nowhere in the Constitution was there any reference to voting by show of hands, or indeed to an open vote at all. Unless the
Constitution provided otherwise, Parliament was given the full power and discretion to regulate its own procedure in the way it saw best. The
expressio unius maxim had no application in the case and was in any event a rule to be E sparingly invoked, particularly with enactments such
as the Constitution, which was a most carefully crafted instrument. The appellants furthermore were unable to point to a single example of a
country in the Commonwealth where the Speaker was elected otherwise than by secret ballot.
(2) The appellants' argument that the court a quo, in holding that the election of the Speaker and Deputy Speaker and the endorsement of the
F Vice President was a 'continuation or formed the substratum of the general elections, that recognises a secret ballot', had erred, was
incorrect as the court was not averring that because these subsequent procedures formed part of or at least a sequel to the election processes
then they must, by necessity, be conducted by secret ballot in the manner of the general election. What the court was doing was no more than
to stress that if a secret G ballot was desirable for a general election, then it could not be seen to be undesirable for sequential intra
Parliamentary elections following the general elections. There was nothing objectionable about that proposition.
(3) The fact that in terms of s 19(i) of the National Assembly (Powers and Privileges) Act (Cap 02:05) it was a criminal offence to attempt
directly or indirectly to influence a member in his vote upon any question arising in the H assembly, certainly did not support an argument that
the political parties were entitled to 'coerce' their members to vote in a particular way. Rather this was to be done by agreement in terms of the
respective party's constitution.
(4) The impugned standing orders had in no way thwarted or negated any constitutional requirements and did not run contrary to the policy and
objectives of the Constitution. The requirement of voting by secret ballot did
[2018] 2 BLR p61
not A amount to a substantive amendment of any provision of the Constitution but was rather an arrangement put in place by the National
Assembly for the effective exercise of the members' right to vote without outside influence or coercion which could render the right an empty
one. In the circumstances the appeal had to be dismissed.
Case Information
Cases B referred to:
AttorneyGeneral v Dow [1992] BLR 119, (CA)
C and J Clark v Inland Revenue Commissioners (1973) All ER 513
James v Commonwealth of Australia (1936) AC 578
Matatiele Municipality and Others v President of the Republic of South Africa and Others 2007 (6) SA 477 (CC)
Mazibuko NO v Sisulu and Others C 2013 (6) SA 249 (CC)
Monnanyana v The State [2002] 1 BLR 72, (CA)
Mosetlhanyane and Another v The AttorneyGeneral [2011] 1 BLR 152, (CA)
Mothusi v The AttorneyGeneral [1994] BLR 246, (CA)
Moyo & Others v Zvoma SC 2810 (Zim)

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Mutasa v Makombe NO D 1998 (1) SA 397 (ZS)
objectives of the Constitution. The requirement of voting by secret ballot did
[2018] 2 BLR p61
not A amount to a substantive amendment of any provision of the Constitution but was rather an arrangement put in place by the National
Assembly for the effective exercise of the members' right to vote without outside influence or coercion which could render the right an empty
one. In the circumstances the appeal had to be dismissed.
Case Information
Cases B referred to:
AttorneyGeneral v Dow [1992] BLR 119, (CA)
C and J Clark v Inland Revenue Commissioners (1973) All ER 513
James v Commonwealth of Australia (1936) AC 578
Matatiele Municipality and Others v President of the Republic of South Africa and Others 2007 (6) SA 477 (CC)
Mazibuko NO v Sisulu and Others C 2013 (6) SA 249 (CC)
Monnanyana v The State [2002] 1 BLR 72, (CA)
Mosetlhanyane and Another v The AttorneyGeneral [2011] 1 BLR 152, (CA)
Mothusi v The AttorneyGeneral [1994] BLR 246, (CA)
Moyo & Others v Zvoma SC 2810 (Zim)
Mutasa v Makombe NO D 1998 (1) SA 397 (ZS)
Mzwinila v The AttorneyGeneral [2003] 1 BLR 554, (HC)
New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC)
OrianiAmbrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC)
Petrus and Another v The State E [1984] BLR 14, (CA)
Poynton v Cran 1910 AD 205
Re AttorneyGeneral's Reference; State v Malan [1990] BLR 32, (CA)
S v Marwane 1982 (3) SA 717 (A)
Taylor v Prime Minister and Minister of Internal Affairs 1954 (3) SA 956 (SR) F
Universal City Studios Inc and Others v Network Videos (Pty) Ltd 1986 (2) SA 734 (A)
Appeal from the dismissal by the High Court of an application to have the Standing Orders of Parliament providing for the election of the Speaker
and G Deputy Speaker, and for the endorsement of the Vice President by secret ballot declared unconstitutional. The facts are sufficiently
stated in the judgment.
P Tafa (with B Machinya, D MakatiMpho, B Matenge, T K Mvungama, M Kaluzi and E Mosime) for the first appellant.
M Chamme (with O S Rammidi) for the second appellant.
D Bayford H (with J C Salbany, O Garebamono and M M Chilisa) for the first respondent.
B D Leburu (with K S Botlhole, L M Dingake and B U Manewe) for the second respondent.
Judgment
Kirby JP:
On Monday 10 November 2014, a full bench of the court dismissed this appeal, reserving its reasons. These are the reasons.
[2018] 2 BLR p62
Kirby JP
The crisp question at issue is whether the provisions of the Standing Orders of A Parliament providing for the election of the Speaker and the
Deputy Speaker, and for the endorsement of the Vice President to be by secret ballot are unconstitutional.
When the Constitution was enacted in 1966, it provided by section 36 that where the office of the President became vacant, the Vice President
was to act until Parliament met (within seven days) to elect a new president by secret ballot. B The procedure for that election was laid out
in that section. By section 40(1) the Vice President was to be appointed by the President from among the members of the National Assembly.
Parliament had no role in that appointment.
A number of amendments to the Constitution were introduced by Act 16 of 1997. Among these was the new requirement that a President was
limited to an C aggregate period of 10 years in office. It was now provided that when a President died, resigned or ceased to hold office, the
Vice President would automatically assume the office of President. The participation of Parliament was not required. It was only when a
President died, resigned, or ceased to hold office at a time when there was no Vice President that the cabinet was authorised (by section
35(2)) to appoint an acting president from among its members. Parliament was D then to meet on the seventh day after the office of the
President became vacant in order to elect a new president.
Section 35(5) provided (and still provides) that the Speaker is to preside in that election, with voting to be 'by ballot in such a manner as not to
disclose how any particular member voted'. The original detailed procedure for that election was retained, with provision for repeated ballots
until a candidate obtained the votes of more than one half of the persons entitled to vote. E
By the same Act further requirements were added relating to the appointment of the Vice President. The former section 40(1) was replaced by
a new section 39(1) which now provides that:
''There shall be a VicePresident who shall be appointed by the President from F among the Elected Members of the National Assembly who are
citizens of Botswana by birth or descent, which appointment shall be endorsed by the said Elected Members.'
The sections dealing with the election of the Speaker and the Deputy Speaker have remained unchanged since 1966, save as to numbering. The
pertinent subsections are as follows: G
'59(1) There shall be a Speaker of the National Assembly who shall be elected by the Members of the Assembly from among persons who are
Members of the Assembly or from among persons who are not Members of the Assembly.
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On Monday 10 November 2014, a full bench of the court dismissed this appeal, reserving its reasons. These are the reasons.
[2018] 2 BLR p62
Kirby JP
The crisp question at issue is whether the provisions of the Standing Orders of A Parliament providing for the election of the Speaker and the
Deputy Speaker, and for the endorsement of the Vice President to be by secret ballot are unconstitutional.
When the Constitution was enacted in 1966, it provided by section 36 that where the office of the President became vacant, the Vice President
was to act until Parliament met (within seven days) to elect a new president by secret ballot. B The procedure for that election was laid out
in that section. By section 40(1) the Vice President was to be appointed by the President from among the members of the National Assembly.
Parliament had no role in that appointment.
A number of amendments to the Constitution were introduced by Act 16 of 1997. Among these was the new requirement that a President was
limited to an C aggregate period of 10 years in office. It was now provided that when a President died, resigned or ceased to hold office, the
Vice President would automatically assume the office of President. The participation of Parliament was not required. It was only when a
President died, resigned, or ceased to hold office at a time when there was no Vice President that the cabinet was authorised (by section
35(2)) to appoint an acting president from among its members. Parliament was D then to meet on the seventh day after the office of the
President became vacant in order to elect a new president.
Section 35(5) provided (and still provides) that the Speaker is to preside in that election, with voting to be 'by ballot in such a manner as not to
disclose how any particular member voted'. The original detailed procedure for that election was retained, with provision for repeated ballots
until a candidate obtained the votes of more than one half of the persons entitled to vote. E
By the same Act further requirements were added relating to the appointment of the Vice President. The former section 40(1) was replaced by
a new section 39(1) which now provides that:
''There shall be a VicePresident who shall be appointed by the President from F among the Elected Members of the National Assembly who are
citizens of Botswana by birth or descent, which appointment shall be endorsed by the said Elected Members.'
The sections dealing with the election of the Speaker and the Deputy Speaker have remained unchanged since 1966, save as to numbering. The
pertinent subsections are as follows: G
'59(1) There shall be a Speaker of the National Assembly who shall be elected by the Members of the Assembly from among persons who are
Members of the Assembly or from among persons who are not Members of the Assembly.
...
60(1) There shall be a Deputy Speaker of the National Assembly who shall be H elected from among the persons who are Members of the
Assembly other than the President, the VicePresident, Ministers or Assistant Ministers.'
No provision is made in those sections for the procedure by which the Vice President is to be endorsed by the elected members of the national
assembly, nor for the manner in which the elections of the Speaker and the Deputy Speaker are to be conducted.
[2018] 2 BLR p63
Kirby JP
It A is noteworthy that in the case of national elections the Constitution does not make any specific provision for the manner of voting. By
section 67(5) every registered voter has the right to vote 'in accordance with the provisions of a law to be made in that behalf'. And by section
58(2)(a) Parliament is to have:
'57 Elected Members who shall be elected in accordance with the provisions B of this Constitution and subject thereto in accordance with the
provisions of any Act of Parliament; . . .'
It is Parliament which has determined, by passing the Electoral Act (Cap 02:09), that national elections shall be conducted by secret ballot.
On the other hand, s 58(2)(b) of the Constitution does provide for a specific C manner of election of four additional members, who are to be
elected by Parliament rather than by the general electorate. This provides for 'four Specially Elected Members who shall be elected in
accordance with the First Schedule to this Constitution and subject thereto in accordance with the provisions of any Act of Parliament.'
The D First Schedule makes detailed provisions for the election, which is to be by secret ballot. Significantly it adds that: 'Subject to the
provisions of this Schedule the National Assembly may make rules for the election of its Specially Elected Members.'
So, any gaps in the procedure provided may be filled by the Standing Orders E of Parliament without the necessity for a constitutional
amendment.
The other sections of the Constitution which are relied upon by counsel in this case are section 76(1) and section 74. These read as follows:
'74(1) Save as otherwise provided in this Constitution, any question proposed for decision in the National Assembly shall be determined by a
majority of the F votes of the Members present and voting,
... G
(3) The person presiding in the National Assembly shall have neither an original nor a casting vote and if upon any question before the Assembly
the votes are equally divided the motion shall be lost.
...
76(1) Subject to the provisions of this Constitution, the National Assembly may regulate its own procedure.'
In this section too the manner of voting is not prescribed. I shall return to examine these provisions in more detail in due course.
Background H
The first Standing Orders of Parliament were adopted at the time of independence in 1966. At that time, and for many years thereafter, there
was no contest for the posts of Speaker and Deputy Speaker. They were elected unopposed on a motion that 'XYZ do take the chair as
Speaker/Deputy Speaker of the House'. On a collection of voices being called, 'the ayes' would invariably have it, and the appointments would
be made.
[2018] 2 BLR p64
Kirby JP
As for the Vice Presidents, they would be appointed by the President, and the A House would be informed accordingly.
Following the constitutional amendments of 1997, the standing orders were amended on 13 August 1998 by adding a new Standing Order 5 to
provide that:
'5. Subject to the provisions of Section 39(1) of the Constitution, the National Assembly shall endorse the appointment of the Vice President by
each Member of the National Assembly voting by secret ballot.' B
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constitutionality of that process. It is to be noted that at that time, and until a further constitutional amendment was made in 2005, the
assembly, nor for the manner in which the elections of the Speaker and the Deputy Speaker are to be conducted.
[2018] 2 BLR p63
Kirby JP
It A is noteworthy that in the case of national elections the Constitution does not make any specific provision for the manner of voting. By
section 67(5) every registered voter has the right to vote 'in accordance with the provisions of a law to be made in that behalf'. And by section
58(2)(a) Parliament is to have:
'57 Elected Members who shall be elected in accordance with the provisions B of this Constitution and subject thereto in accordance with the
provisions of any Act of Parliament; . . .'
It is Parliament which has determined, by passing the Electoral Act (Cap 02:09), that national elections shall be conducted by secret ballot.
On the other hand, s 58(2)(b) of the Constitution does provide for a specific C manner of election of four additional members, who are to be
elected by Parliament rather than by the general electorate. This provides for 'four Specially Elected Members who shall be elected in
accordance with the First Schedule to this Constitution and subject thereto in accordance with the provisions of any Act of Parliament.'
The D First Schedule makes detailed provisions for the election, which is to be by secret ballot. Significantly it adds that: 'Subject to the
provisions of this Schedule the National Assembly may make rules for the election of its Specially Elected Members.'
So, any gaps in the procedure provided may be filled by the Standing Orders E of Parliament without the necessity for a constitutional
amendment.
The other sections of the Constitution which are relied upon by counsel in this case are section 76(1) and section 74. These read as follows:
'74(1) Save as otherwise provided in this Constitution, any question proposed for decision in the National Assembly shall be determined by a
majority of the F votes of the Members present and voting,
... G
(3) The person presiding in the National Assembly shall have neither an original nor a casting vote and if upon any question before the Assembly
the votes are equally divided the motion shall be lost.
...
76(1) Subject to the provisions of this Constitution, the National Assembly may regulate its own procedure.'
In this section too the manner of voting is not prescribed. I shall return to examine these provisions in more detail in due course.
Background H
The first Standing Orders of Parliament were adopted at the time of independence in 1966. At that time, and for many years thereafter, there
was no contest for the posts of Speaker and Deputy Speaker. They were elected unopposed on a motion that 'XYZ do take the chair as
Speaker/Deputy Speaker of the House'. On a collection of voices being called, 'the ayes' would invariably have it, and the appointments would
be made.
[2018] 2 BLR p64
Kirby JP
provide that:
Since then three vice presidents have been endorsed in this manner without any problem and without any challenge to the propriety or
AttorneyGeneral sat in Parliament as an ex officio member, and as the legal advisor to the House. C
All the parties agree, although that version of the standing orders has not been provided to us, that in 2010 the standing orders were again
amended, this time to provide that the elections of the Speaker and of the Deputy Speaker are to be by secret ballot as well. A detailed
procedure was provided for this, including that nominations for the office of Speaker were to be supported by at least five D members, and
that a further ballot was to be held in the event of a tie. I pause to note that amendments to the standing orders are proposed by the Standing
Orders Committee of Parliament and, if agreed upon after debate, are adopted by resolution of the National Assembly. That committee is chaired
by the Speaker and has seven additional members from across the political divide. It is advised by the parliamentary counsel, a senior lawyer
seconded to Parliament by the E Attorney General, who also assists with necessary drafting. Since that amendment there has, up to now,
been no contest for the positions of Speaker and Deputy Speaker, so that no elections under the new standing order needed to be held.
Honourable M Nasha and Hon P P Moatlhodi were accordingly elected by acclaim on a motion to that effect. There was similarly no challenge to
the propriety or constitutionality of the 2010 amendment during the four years which F followed.
On Wednesday 6 August 2014, shortly before Parliament was dissolved preparatory to the forthcoming elections, the Standing Orders Committee
brought further amendments to the House, seeking to amend Standing Orders 4.5, 4.6 and 6.1. These were not amendments of principle or of
substance, but sought only to enhance the confidentiality of the elections of the Speaker and the Deputy G Speaker, and the endorsement of
the Vice President, by providing for voting to take place in an electoral booth to be placed in the House, and for the ballot papers to be posted
thereafter in a prominently displayed ballot box. That is all. The relevant extract from Hansard shows that the amendments were adopted
without dissent. All members present concurred. It is a matter of public record that the Botswana Democratic Party (BDP) which is the first
appellant herein, H holds, and has held ever since 1966 a substantial majority of the seats in Parliament.
On 29 August 2014, His Excellency the President dissolved Parliament and on 24 October 2014 a general election was held to elect members of
the Eleventh Parliament.
On the morning of election day, the AttorneyGeneral (who was initially cited as a respondent in this appeal but is now the second appellant)
received a letter
[2018] 2 BLR p65
Kirby JP
from A lawyers representing His Excellency the President and the BDP. This was addressed also to the Speaker and to the clerk of the National
Assembly. The attorneys appeared to be under the mistaken impression that the standing orders had only been amended in August 2014 to
provide for secret ballots in the election of the Speaker and the Deputy Speaker and in the endorsement of the Vice President.
The B letter expressed their view (and, somewhat surprisingly, the view of the BDP, which had been party to all the amendments) that
Standing Orders 4.3, 4.4, 4.5, 4.6, and 6.1 were unconstitutional in so far as they introduced secret ballots and accompanying procedures for
nominations, with a deadline. This, they said, introduced additional requirements not authorised by ss 39(1), 59 and 60 of the Constitution,
which required compliance with s 74(1) of the Constitution, namely C 'voting by a simple majority by a show of hands'. The new requirements,
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Constitution and, in the case of endorsement of the Vice President, this was passed by a twothirds majority.
be made.
[2018] 2 BLR p64
Kirby JP
provide that:
Since then three vice presidents have been endorsed in this manner without any problem and without any challenge to the propriety or
AttorneyGeneral sat in Parliament as an ex officio member, and as the legal advisor to the House. C
All the parties agree, although that version of the standing orders has not been provided to us, that in 2010 the standing orders were again
amended, this time to provide that the elections of the Speaker and of the Deputy Speaker are to be by secret ballot as well. A detailed
procedure was provided for this, including that nominations for the office of Speaker were to be supported by at least five D members, and
that a further ballot was to be held in the event of a tie. I pause to note that amendments to the standing orders are proposed by the Standing
Orders Committee of Parliament and, if agreed upon after debate, are adopted by resolution of the National Assembly. That committee is chaired
by the Speaker and has seven additional members from across the political divide. It is advised by the parliamentary counsel, a senior lawyer
seconded to Parliament by the E Attorney General, who also assists with necessary drafting. Since that amendment there has, up to now,
been no contest for the positions of Speaker and Deputy Speaker, so that no elections under the new standing order needed to be held.
Honourable M Nasha and Hon P P Moatlhodi were accordingly elected by acclaim on a motion to that effect. There was similarly no challenge to
the propriety or constitutionality of the 2010 amendment during the four years which F followed.
On Wednesday 6 August 2014, shortly before Parliament was dissolved preparatory to the forthcoming elections, the Standing Orders Committee
brought further amendments to the House, seeking to amend Standing Orders 4.5, 4.6 and 6.1. These were not amendments of principle or of
substance, but sought only to enhance the confidentiality of the elections of the Speaker and the Deputy G Speaker, and the endorsement of
the Vice President, by providing for voting to take place in an electoral booth to be placed in the House, and for the ballot papers to be posted
thereafter in a prominently displayed ballot box. That is all. The relevant extract from Hansard shows that the amendments were adopted
without dissent. All members present concurred. It is a matter of public record that the Botswana Democratic Party (BDP) which is the first
appellant herein, H holds, and has held ever since 1966 a substantial majority of the seats in Parliament.
On 29 August 2014, His Excellency the President dissolved Parliament and on 24 October 2014 a general election was held to elect members of
the Eleventh Parliament.
On the morning of election day, the AttorneyGeneral (who was initially cited as a respondent in this appeal but is now the second appellant)
received a letter
[2018] 2 BLR p65
Kirby JP
they averred, amounted to amendments to the sections in question, which were not permitted unless they were effected in terms of s 89 of the
The D lawyers demanded the withdrawal of public notices calling for nominations for the offices of Speaker and Deputy Speaker, which the
Speaker had issued in anticipation of the general election, and also her undertaking, and that of the AttorneyGeneral, that the secret ballot
provisions of the standing orders would not be implemented in the imminent elections of those officers and in the endorsement of the Vice
President following the general election. If this was not E done, they threatened to 'bring an urgent constitutional application to interdict the
convening of the new parliament for the election of the Speaker, Deputy Speaker, and the endorsement of the Vice President' pending a
constitutional challenge to the standing orders in question. This, they said, 'would plunge the country into a major constitutional crisis'.
The Umbrella for Democratic Change (UDC), another of the political parties F contesting the general election, and now the first respondent
herein, got wind of this letter, and the next day their counsel addressed a rejoinder to the BDP lawyers, copied to the AttorneyGeneral, the
Speaker, and the clerk to the National Assembly. In it they expressed their strong views that:
– The AttorneyGeneral and the speaker had no power to give an undertaking not to implement the standing orders of Parliament.
– G Nowhere did the Constitution require a vote by a show of hands.
– Parliament had the constitutional right to regulate its own procedure and had done so by introducing the standing orders in
question.
– No section of the Constitution had been infringed.
They would thus oppose any application for an interdict.
The H general election was duly held and concluded and the reelection of the President was announced as the presidential candidate whose
political party had secured more than 50 per cent of the total seats for the elected members of the National Assembly in terms of s 32(3)(d) of
the Constitution.
On 28 October 2014, before the new Parliament could sit, an urgent application was launched in the High Court, not by the BDP, but by the
Attorney General and the clerk to the National Assembly (as first and second applicants). Their application was not for an interdict or other
interim relief, but for a final
[2018] 2 BLR p66
Kirby JP
order declaring not only Standing Orders (S.O.) 4.3, 4.4, 4.5, 4.6 and 6.1, but also A Standing Orders 4.8, 4.11 and 4.14 to be
unconstitutional. The respondents were the three political parties represented in Parliament namely the BDP, the UDC and the Botswana
Congress Party (BCP) (now the second respondent herein):
'SO.4.3 Provides that the election of the Speaker shall be by secret ballot.
SO.4.4 Provides that nominations of candidates for the office of Speaker must B be filed with the clerk at least 24 hours before the
election,
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received a letter
[2018] 2 BLR p65
Kirby JP
they averred, amounted to amendments to the sections in question, which were not permitted unless they were effected in terms of s 89 of the
The D lawyers demanded the withdrawal of public notices calling for nominations for the offices of Speaker and Deputy Speaker, which the
Speaker had issued in anticipation of the general election, and also her undertaking, and that of the AttorneyGeneral, that the secret ballot
provisions of the standing orders would not be implemented in the imminent elections of those officers and in the endorsement of the Vice
President following the general election. If this was not E done, they threatened to 'bring an urgent constitutional application to interdict the
convening of the new parliament for the election of the Speaker, Deputy Speaker, and the endorsement of the Vice President' pending a
constitutional challenge to the standing orders in question. This, they said, 'would plunge the country into a major constitutional crisis'.
The Umbrella for Democratic Change (UDC), another of the political parties F contesting the general election, and now the first respondent
herein, got wind of this letter, and the next day their counsel addressed a rejoinder to the BDP lawyers, copied to the AttorneyGeneral, the
Speaker, and the clerk to the National Assembly. In it they expressed their strong views that:
– The AttorneyGeneral and the speaker had no power to give an undertaking not to implement the standing orders of Parliament.
– G Nowhere did the Constitution require a vote by a show of hands.
– Parliament had the constitutional right to regulate its own procedure and had done so by introducing the standing orders in
question.
– No section of the Constitution had been infringed.
They would thus oppose any application for an interdict.
The H general election was duly held and concluded and the reelection of the President was announced as the presidential candidate whose
political party had secured more than 50 per cent of the total seats for the elected members of the National Assembly in terms of s 32(3)(d) of
the Constitution.
On 28 October 2014, before the new Parliament could sit, an urgent application was launched in the High Court, not by the BDP, but by the
Attorney General and the clerk to the National Assembly (as first and second applicants). Their application was not for an interdict or other
[2018] 2 BLR p66
Kirby JP
election, accompanied by the signatures of five members who support the candidate, and a declaration from the candidate stating willingness
to serve.
SO.4.5 States that the clerk shall prepare ballot papers showing the names of all validly nominated candidates ahead of the meeting, and
shall, before the ballot, announce and display the names of all such C candidates.
SO.4.6 Provides for members to be called in alphabetical order to collect a ballot paper, to record their votes in an electoral booth placed in
the House and to cast their ballots into the ballot box provided.
SO.4.7 Provides for the clerk to display the empty ballot box before voting commences, then to lock this and leave it in full view until the
voting D is over.
SO.4.8 Empowers the clerk to tally the votes cast and to announce the result.
SO.4.9 and 4.10 (which are not challenged) provide a tiebreaking procedure, first by holding a second ballot then by adjourning to lobby.
No Speaker shall be elected unless he or she is supported by a simple majority vote. E
SO.4.11 Permits a candidate to withdraw his name before the start of a ballot, in which event his or her name shall be crossed off the ballot
papers.
SO.4.12 and 4.13 are not challenged. These provide that if there is only one candidate no election is required, and that the Elected Speaker
shall subscribe to the oath of allegiance before taking his or her seat.
SO.4.14 Provides that the same process shall apply in the election of a Deputy F Speaker, save that the Speaker shall preside.
SO.4.15 Precludes party whips from holding the office of Deputy Speaker (this provision is also not challenged).
SO.6.1 Provides that subject to s 39(1) of the Constitution the endorsement of the Vice President shall be by secret ballot, with the process
prescribed by SO.4.5 and SO.4.6 to apply — that is, use of ballot papers, the G electoral booth, and the ballot box.'
The parties appeared before a threejudge bench of the High Court on 29 October 2014 where a timetable was set for the filing of pleadings,
and the application was listed by consent for argument on 5 November 2014. It was then made clear that the BDP was supporting the
application, while the UDC and the H BCP were opposing it. No further mention is made of the clerk to the National Assembly, who does not
appear as an applicant either in any subsequent pleadings or in the judgment.
The UDC and the BCP raised what, on the face of it, appear to be strong preliminary points, in terms of which they asked that the application
be dismissed. They also presented full argument on the merits. The points in limine were as follows:
[2018] 2 BLR p67
Kirby JP
A. A That the application was not urgent since:
(i) The secret ballot amendments had been introduced 16 years earlier (in the case of endorsement of the Vice President), four
© 2018 Juta and Company
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recent amendments wereAfrica Standard Time)
merely
cosmetic in nature.
[2018] 2 BLR p66
Kirby JP
election, accompanied by the signatures of five members who support the candidate, and a declaration from the candidate stating willingness
to serve.
SO.4.5 States that the clerk shall prepare ballot papers showing the names of all validly nominated candidates ahead of the meeting, and
shall, before the ballot, announce and display the names of all such C candidates.
SO.4.6 Provides for members to be called in alphabetical order to collect a ballot paper, to record their votes in an electoral booth placed in
the House and to cast their ballots into the ballot box provided.
SO.4.7 Provides for the clerk to display the empty ballot box before voting commences, then to lock this and leave it in full view until the
voting D is over.
SO.4.8 Empowers the clerk to tally the votes cast and to announce the result.
SO.4.9 and 4.10 (which are not challenged) provide a tiebreaking procedure, first by holding a second ballot then by adjourning to lobby.
No Speaker shall be elected unless he or she is supported by a simple majority vote. E
SO.4.11 Permits a candidate to withdraw his name before the start of a ballot, in which event his or her name shall be crossed off the ballot
papers.
SO.4.12 and 4.13 are not challenged. These provide that if there is only one candidate no election is required, and that the Elected Speaker
shall subscribe to the oath of allegiance before taking his or her seat.
SO.4.14 Provides that the same process shall apply in the election of a Deputy F Speaker, save that the Speaker shall preside.
SO.4.15 Precludes party whips from holding the office of Deputy Speaker (this provision is also not challenged).
SO.6.1 Provides that subject to s 39(1) of the Constitution the endorsement of the Vice President shall be by secret ballot, with the process
prescribed by SO.4.5 and SO.4.6 to apply — that is, use of ballot papers, the G electoral booth, and the ballot box.'
The parties appeared before a threejudge bench of the High Court on 29 October 2014 where a timetable was set for the filing of pleadings,
and the application was listed by consent for argument on 5 November 2014. It was then made clear that the BDP was supporting the
application, while the UDC and the H BCP were opposing it. No further mention is made of the clerk to the National Assembly, who does not
appear as an applicant either in any subsequent pleadings or in the judgment.
The UDC and the BCP raised what, on the face of it, appear to be strong preliminary points, in terms of which they asked that the application
[2018] 2 BLR p67
Kirby JP
years earlier (in the case of the election of the Speaker and the Deputy Speaker), and the more recent amendments were merely
cosmetic in nature.
(ii) The AttorneyGeneral was aware at all times of the amendments and B had assisted in their drafting.
(iii) The feared constitutional crisis was illusory, since the impugned standing orders had been employed in previous elections with
no problem, and there was no indication that this election would be any different.
(iv) In the case of any challenge to the election of the Speaker or the C Deputy Speaker, the Constitution specifically provided in
section 69(1)(b) for the jurisdiction of the High Court to hear this ex post facto. The application was thus premature.
B. That the AttorneyGeneral had no locus standi to bring the application, since neither she nor the government would suffer actual or
potential prejudice if D the impugned standing orders were applied as in the past. A difference of opinion between lawyers was no basis
for the AttorneyGeneral to bring an application for a declarator in the public interest. Such an application might possibly be brought by an
aggrieved participant in election or endorsement proceedings, ex post facto, whereupon the AttorneyGeneral would be entitled to be
joined in terms of the rules, since a constitutional question E would fall to be considered.
C. That the application was fatally defective for failure to join the Speaker of the National Assembly as a respondent, since she was the
custodian of the standing orders of Parliament, and the doctrine of separation of powers implied the independence of Parliament in the
formulation of its procedural F standing orders.
As it turned out the High Court chose to deal with the merits alone and did not advert its mind to these preliminary issues. They have not been
raised or argued in the present appeal either, and notwithstanding their importance it would not be proper to address them in this judgment. I
mention them only in order to caution that the adjudication of this case by the High Court should not in the future be G relied upon as a
precedent in similar circumstances on the issues of urgency, locus standi or joinder.
The application was duly argued, and judgment was handed down on Friday 7 November 2014. The application was dismissed with costs.
Leburu J (with Walia J and Tau J concurring) held that:
– The Constitution did not lay down detailed procedures for the election of the Speaker and of the Deputy Speaker or for the
endorsement of the Vice President.
– The National Assembly was empowered by s 76(1) of the Constitution to regulate its own procedure, and this it did by means of
its standing orders.
– The fact that other constitutional provisions demanded a secret ballot in given circumstances did not exclude such a ballot being
chosen by Parliament where the method of election or endorsement was not specified.
[2018] 2 BLR p68
Kirby JP
– A secret ballot was the hallmark of a free and fair election within a A representative democracy and was in no way
objectionable.
The BDP (later joined by the AttorneyGeneral) disagreed and sought an urgent expedited appeal hearing before a full bench of the Court of
[2018] 2 BLR p67
Kirby JP
years earlier (in the case of the election of the Speaker and the Deputy Speaker), and the more recent amendments were merely
cosmetic in nature.
(ii) The AttorneyGeneral was aware at all times of the amendments and B had assisted in their drafting.
(iii) The feared constitutional crisis was illusory, since the impugned standing orders had been employed in previous elections with
no problem, and there was no indication that this election would be any different.
(iv) In the case of any challenge to the election of the Speaker or the C Deputy Speaker, the Constitution specifically provided in
section 69(1)(b) for the jurisdiction of the High Court to hear this ex post facto. The application was thus premature.
B. That the AttorneyGeneral had no locus standi to bring the application, since neither she nor the government would suffer actual or
potential prejudice if D the impugned standing orders were applied as in the past. A difference of opinion between lawyers was no basis
for the AttorneyGeneral to bring an application for a declarator in the public interest. Such an application might possibly be brought by an
aggrieved participant in election or endorsement proceedings, ex post facto, whereupon the AttorneyGeneral would be entitled to be
joined in terms of the rules, since a constitutional question E would fall to be considered.
C. That the application was fatally defective for failure to join the Speaker of the National Assembly as a respondent, since she was the
custodian of the standing orders of Parliament, and the doctrine of separation of powers implied the independence of Parliament in the
formulation of its procedural F standing orders.
As it turned out the High Court chose to deal with the merits alone and did not advert its mind to these preliminary issues. They have not been
raised or argued in the present appeal either, and notwithstanding their importance it would not be proper to address them in this judgment. I
mention them only in order to caution that the adjudication of this case by the High Court should not in the future be G relied upon as a
precedent in similar circumstances on the issues of urgency, locus standi or joinder.
The application was duly argued, and judgment was handed down on Friday 7 November 2014. The application was dismissed with costs.
Leburu J (with Walia J and Tau J concurring) held that:
– The Constitution did not lay down detailed procedures for the election of the Speaker and of the Deputy Speaker or for the
endorsement of the Vice President.
– The National Assembly was empowered by s 76(1) of the Constitution to regulate its own procedure, and this it did by means of
its standing orders.
– The fact that other constitutional provisions demanded a secret ballot in given circumstances did not exclude such a ballot being
[2018] 2 BLR p68
Kirby JP
objectionable.
Appeal. This was agreed to by the UDC and the BCP, who both opposed the appeal. The appeal was accordingly heard on the afternoon of
Monday 10 November 2014. B
The grounds of appeal advanced by the appellants are the following:
(i) That the court erred in holding that the requirement for a secret ballot in certain sections of the Constitution did not preclude a
secret ballot being held under sections calling for elections where this procedure was not prescribed (ie that the expressio unius est
exclusio alterius rule of interpretation did not apply). C
(ii) That the court erred in equating internal parliamentary elections with national elections (where secret was voting required) as a
'continuation' of such elections.
(iii) That the court erred in interpreting the words 'subject to the Constitution' in section 76(1) narrowly to embrace only specific
provisions thereof, rather D than broadly to require adherence to the constitutional principles of 'transparency, openness and
accountability' and thus in holding that Parliament had a free hand to formulate voting procedures where the Constitution did not
specify these.
(iv) That the court erred in holding that the imposition of secret ballots was a matter of procedure, rather than a matter of
substance (which would require E a constitutional amendment under s 89 of the Constitution). F
(v) That the court erred in holding that the Constitution does not specify a method of voting in elections of the Speaker and
Deputy Speaker and the endorsement of the Vice President. The method required is the publicly accountable 'collection of
voices/division' procedure provided by Standing Orders 61 – 63 as read with s 74 of the Constitution.
The cases advanced by the parties
The appellants' case is broadly captured by the grounds of appeal set out above. Their central thesis is that, unlike in national elections, 'the
constitutional principles of transparency, openness, and accountability' are to be applied to all parliamentary proceedings, including its electoral
processes. This is because G members of Parliament are accountable to the electorate in their constituencies, who are entitled to observe
how they vote on all parliamentary issues, and also to the dictates of their political parties.
The respondents, on the other hand, argue that Parliament, in terms of s 76(1) of the Constitution, enjoys the exclusive right to regulate its
own procedure, subject only to the constraints of the Constitution. The Constitution has not H prescribed the method by which the Speaker
and the Deputy Speaker are to be elected nor the method by which the Vice President is to be endorsed by Parliament. Accordingly, Parliament
was entitled to prescribe such a procedure, and it legitimately chose the secret ballot which was appropriate and enhanced democracy by
allowing a free and confidential choice to the voter. Public voting on the other hand, could subject the voter to inappropriate pressure and
duress. Section 74, too, does not provide for a method of voting, but only demands
[2018] 2 BLR p69
Kirby JP
determination A of questions by a simple majority of members present and voting, in accordance with the usual precepts of democracy. The
standing
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procedural.
[2018] 2 BLR p68
Kirby JP
objectionable.
Appeal. This was agreed to by the UDC and the BCP, who both opposed the appeal. The appeal was accordingly heard on the afternoon of
Monday 10 November 2014. B
The grounds of appeal advanced by the appellants are the following:
(i) That the court erred in holding that the requirement for a secret ballot in certain sections of the Constitution did not preclude a
secret ballot being held under sections calling for elections where this procedure was not prescribed (ie that the expressio unius est
exclusio alterius rule of interpretation did not apply). C
(ii) That the court erred in equating internal parliamentary elections with national elections (where secret was voting required) as a
'continuation' of such elections.
(iii) That the court erred in interpreting the words 'subject to the Constitution' in section 76(1) narrowly to embrace only specific
provisions thereof, rather D than broadly to require adherence to the constitutional principles of 'transparency, openness and
accountability' and thus in holding that Parliament had a free hand to formulate voting procedures where the Constitution did not
specify these.
(iv) That the court erred in holding that the imposition of secret ballots was a matter of procedure, rather than a matter of
substance (which would require E a constitutional amendment under s 89 of the Constitution). F
(v) That the court erred in holding that the Constitution does not specify a method of voting in elections of the Speaker and
Deputy Speaker and the endorsement of the Vice President. The method required is the publicly accountable 'collection of
voices/division' procedure provided by Standing Orders 61 – 63 as read with s 74 of the Constitution.
The cases advanced by the parties
The appellants' case is broadly captured by the grounds of appeal set out above. Their central thesis is that, unlike in national elections, 'the
constitutional principles of transparency, openness, and accountability' are to be applied to all parliamentary proceedings, including its electoral
processes. This is because G members of Parliament are accountable to the electorate in their constituencies, who are entitled to observe
how they vote on all parliamentary issues, and also to the dictates of their political parties.
The respondents, on the other hand, argue that Parliament, in terms of s 76(1) of the Constitution, enjoys the exclusive right to regulate its
own procedure, subject only to the constraints of the Constitution. The Constitution has not H prescribed the method by which the Speaker
and the Deputy Speaker are to be elected nor the method by which the Vice President is to be endorsed by Parliament. Accordingly, Parliament
was entitled to prescribe such a procedure, and it legitimately chose the secret ballot which was appropriate and enhanced democracy by
allowing a free and confidential choice to the voter. Public voting on the other hand, could subject the voter to inappropriate pressure and
[2018] 2 BLR p69
Kirby JP
standing orders, as drafted, did not seek in any way to amend, modify or reenact ss 39, 59 and 60 of the Constitution, but were merely
procedural.
The AttorneyGeneral explained that it was necessary to bring her urgent application because, notwithstanding that the existing methods of
election and B endorsement had been applied for several years without problems, she had now satisfied herself, after receipt of the BDP's
letter, that the standing orders in question were indeed unconstitutional. She felt the need to have the matter judicially determined forthwith to
forestall what she perceived could become a constitutional crisis, with the business of Parliament stalled by pending court proceedings.
The law C
At the heart of this appeal lies an assessment of the powers and privileges of Parliament, and the extent to which these are constrained by the
Constitution. The three arms of government, namely the executive, the legislature, and the D judicature are each given their mandates by the
Constitution, and the doctrine of separation of powers ensures that none of these intrudes into the space of the others, or usurps powers
properly bestowed elsewhere.
It is the delicate balance between these three arms of government and the mutual restraint which they engender that promotes democracy,
and guards against the abuse of power.
The E principal power of Parliament is conferred by s 86 of the Constitution, which provides that: 'Subject to the provisions of this
Constitution, Parliament shall have power to make laws for the peace, order and good government of Botswana.'
One of its main privileges is confirmed by section 76(1) which provides that: 'Subject to the provisions of this Constitution, the National
Assembly may F regulate its own procedure.'
Parliament is also allocated various other tasks by the Constitution, including the election of a Speaker, the election of a Deputy Speaker and
the endorsement of the nominated Vice President. In the execution of these duties it is bound to follow and comply with any rules and
procedures laid down in the Constitution.
The history and compass of the privilege of Parliament to regulate its own G procedure is set out in some detail, with reference to relevant
case law, in Mzwinila v The AttorneyGeneral [2003] 1 BLR 554, (HC) at pp 555 et seq. It is unnecessary to repeat it here. Suffice it to say
that, in the words of D D N Nsereko, Constitutional Law in Botswana, 2002 at p 135:
'Save for matters on which it makes specific provision, the Constitution leaves H it to the National Assembly to regulate its own procedure. The
Assembly formulated its rules of procedure in the form of its Standing Orders adopted on 5th October 1966 and thereafter amended from time to
time.'
The Constitution has laid down certain procedural requirements for the passing of legislation in sections 87 – 89, and also some procedures to
be followed in parliamentary proceedings, by sections 71 – 75. But, as has frequently been said, the Constitution provides a broad framework,
setting out the institutions of
[2018] 2 BLR p70
Kirby JP
government, the rights and duties of the citizens, and the structure of our A democracy. As Aguda JA held in Petrus and Another v The
State [1984] BLR 14, (CA) (full bench), at p 35: 'The function of the Constitution is to establish a framework and principles of government,
broad
© 2018 Jutaand
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Companyin (Pty)
termsLtd.. . . .' Downloaded : Mon Aug 01 2022 12:12:46 GMT+0200 (South Africa Standard Time)
It is left to Parliament to add the details of good government. This it does by enacting legislation in terms of its section 86 powers, and by
[2018] 2 BLR p69
Kirby JP
standing orders, as drafted, did not seek in any way to amend, modify or reenact ss 39, 59 and 60 of the Constitution, but were merely
procedural.
The AttorneyGeneral explained that it was necessary to bring her urgent application because, notwithstanding that the existing methods of
election and B endorsement had been applied for several years without problems, she had now satisfied herself, after receipt of the BDP's
letter, that the standing orders in question were indeed unconstitutional. She felt the need to have the matter judicially determined forthwith to
forestall what she perceived could become a constitutional crisis, with the business of Parliament stalled by pending court proceedings.
The law C
At the heart of this appeal lies an assessment of the powers and privileges of Parliament, and the extent to which these are constrained by the
Constitution. The three arms of government, namely the executive, the legislature, and the D judicature are each given their mandates by the
Constitution, and the doctrine of separation of powers ensures that none of these intrudes into the space of the others, or usurps powers
properly bestowed elsewhere.
It is the delicate balance between these three arms of government and the mutual restraint which they engender that promotes democracy,
and guards against the abuse of power.
The E principal power of Parliament is conferred by s 86 of the Constitution, which provides that: 'Subject to the provisions of this
Constitution, Parliament shall have power to make laws for the peace, order and good government of Botswana.'
One of its main privileges is confirmed by section 76(1) which provides that: 'Subject to the provisions of this Constitution, the National
Assembly may F regulate its own procedure.'
Parliament is also allocated various other tasks by the Constitution, including the election of a Speaker, the election of a Deputy Speaker and
the endorsement of the nominated Vice President. In the execution of these duties it is bound to follow and comply with any rules and
procedures laid down in the Constitution.
The history and compass of the privilege of Parliament to regulate its own G procedure is set out in some detail, with reference to relevant
case law, in Mzwinila v The AttorneyGeneral [2003] 1 BLR 554, (HC) at pp 555 et seq. It is unnecessary to repeat it here. Suffice it to say
that, in the words of D D N Nsereko, Constitutional Law in Botswana, 2002 at p 135:
'Save for matters on which it makes specific provision, the Constitution leaves H it to the National Assembly to regulate its own procedure. The
Assembly formulated its rules of procedure in the form of its Standing Orders adopted on 5th October 1966 and thereafter amended from time to
time.'
The Constitution has laid down certain procedural requirements for the passing of legislation in sections 87 – 89, and also some procedures to
be followed in parliamentary proceedings, by sections 71 – 75. But, as has frequently been said, the Constitution provides a broad framework,
[2018] 2 BLR p70
Kirby JP
broad and general in terms . . . .'
laying down procedures in terms of section 76(1). Thus, although there are broad requirements B for the passing of laws in the Constitution, it
is left to Parliament to regulate the procedure for this in the National Assembly. This it has done, in the Westminster tradition, by providing in its
standing orders for the quite complex debating procedures of first, second and third readings, a committee stage, and the approval of each
clause of a bill by the House on a collection of voices. There has C never been any challenge to this, or even any suggestion that by doing so
Parliament has sought to amend the provisions of the Constitution notwithstanding that the exercise of the right to pass laws has been made
considerably more onerous by imposing these conditions.
These other requirements, and also the manner of the execution of its D constitutional mandate and tasks in other respects not covered by
the Constitution, Parliament regulates in its standing orders. As was stated in Mzwinila's case supra at p 559:
'In other respects parliament is governed by its own "Standing Orders of the National Assembly of Botswana", which it has itself devised and
adopted by resolution. The standing orders are contained in a procedural booklet for the E use of members of parliament and parliamentary staff.
They have not been promulgated as a law or statutory instrument. Their purpose is stated at Standing Order 1 as follows:
''These Standing Orders contain rules for the conduct of proceedings in the House and for the exercise of powers possessed by the House.
They are not intended to diminish or restrict the House's rights, privileges, immunities and powers."' F
They go on to provide that in cases of doubt guidance may be sought from the usage in Great Britain's House of Commons or in other
Commonwealth countries.
It is generally accepted that the court has no power to intervene in the G management by Parliament of its own internal affairs (Mzwinila's
case at p 557 and see Mutasa v Makombe NO 1998 (1) SA 397 (ZS)). It is only where the Constitution is contravened, or when Parliament or
its agents overstep the limits of duly enacted laws that the courts will intervene to limit or proscribe acts performed in the name of
parliamentary privilege. As Moseneke DCJ held in Mazibuko NO v Sisulu and Others 2013 (6) SA 249 (CC) at p 260C — H
'. . . the assembly, which is the ultimate master of its own process, subject to the usual caveat that its processes are consistent with the
Constitution and the law'.
Before dealing with the grounds of appeal, and the interpretation of the constitutional provisions and standing orders at issue in this case, it is
as well to say a word about the principles of constitutional interpretation generally. These
[2018] 2 BLR p71
Kirby JP
have A been comprehensively traversed by Amissah JP in AttorneyGeneral v Dow [1992] BLR 119, (CA) (full bench), and in Petrus's case
supra, and I will limit myself to a short extract from the former. In Dow's case at pp 131 – 132 Amissah JP held that —
'. . . the very nature of a Constitution requires that a broad and generous B approach be adopted in the interpretation of its provisions; that all
the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the
Constitution; and that where rights and freedoms are conferred on persons by the Constitution, derogations from such rights and freedoms should
be narrowly or strictly construed'.
A C Constitution must also be interpreted in its context — historic, social, and political — to inject the full contemporary meaning into its
broad terms. It must be interpreted (said Amissah JP at p 130, quoting Lord Wright in James v Commonwealth of Australia (1936) AC 578 at p
614): 'In relation to the vicissitudes of fact which from time to time emerge.'
[2018] 2 BLR p70
Kirby JP
broad and general in terms . . . .'
laying down procedures in terms of section 76(1). Thus, although there are broad requirements B for the passing of laws in the Constitution, it
is left to Parliament to regulate the procedure for this in the National Assembly. This it has done, in the Westminster tradition, by providing in its
standing orders for the quite complex debating procedures of first, second and third readings, a committee stage, and the approval of each
clause of a bill by the House on a collection of voices. There has C never been any challenge to this, or even any suggestion that by doing so
Parliament has sought to amend the provisions of the Constitution notwithstanding that the exercise of the right to pass laws has been made
considerably more onerous by imposing these conditions.
These other requirements, and also the manner of the execution of its D constitutional mandate and tasks in other respects not covered by
the Constitution, Parliament regulates in its standing orders. As was stated in Mzwinila's case supra at p 559:
'In other respects parliament is governed by its own "Standing Orders of the National Assembly of Botswana", which it has itself devised and
adopted by resolution. The standing orders are contained in a procedural booklet for the E use of members of parliament and parliamentary staff.
They have not been promulgated as a law or statutory instrument. Their purpose is stated at Standing Order 1 as follows:
''These Standing Orders contain rules for the conduct of proceedings in the House and for the exercise of powers possessed by the House.
They are not intended to diminish or restrict the House's rights, privileges, immunities and powers."' F
They go on to provide that in cases of doubt guidance may be sought from the usage in Great Britain's House of Commons or in other
Commonwealth countries.
It is generally accepted that the court has no power to intervene in the G management by Parliament of its own internal affairs (Mzwinila's
case at p 557 and see Mutasa v Makombe NO 1998 (1) SA 397 (ZS)). It is only where the Constitution is contravened, or when Parliament or
its agents overstep the limits of duly enacted laws that the courts will intervene to limit or proscribe acts performed in the name of
parliamentary privilege. As Moseneke DCJ held in Mazibuko NO v Sisulu and Others 2013 (6) SA 249 (CC) at p 260C — H
'. . . the assembly, which is the ultimate master of its own process, subject to the usual caveat that its processes are consistent with the
Constitution and the law'.
Before dealing with the grounds of appeal, and the interpretation of the constitutional provisions and standing orders at issue in this case, it is
[2018] 2 BLR p71
Kirby JP
This D mirrors s 28 of the Interpretation Act (Cap 01:04) which provides that:
'An enactment shall be construed as always speaking and if anything is expressed in the present tense it shall be applied to the circumstances as
they occur, so that effect may be given to the enactment according to its true intent E and spirit.'
(By s 2 the Interpretation Act is to be applied to the Constitution as well as to other Acts.)
See also Matatiele Municipality and Others v President of the Republic of South Africa and Others 2007 (6) SA 477 (CC) at p 488.
It F must also be said that other general principles of interpretation laid down in the Interpretation Act equally apply to the Constitution,
unless the context indicates the contrary. These include the rule that enactments are deemed to be remedial and for the public good and shall
receive such fair and liberal construction as will best attain its object according to its true intent and spirit (section 26). They also include the
rule that an interpretation which would render G the enactment ineffective is to be disregarded in favour of an interpretation which will enable
it to have effect (section 27). Finally, the Interpretation Act provides in section 33 that:
'Where an enactment qualifies a general expression by providing that it shall H include a number of particular matters or things, any matter or
thing which is not expressly included is by implication excluded from the meaning of the general expression.'
This is a rendering of the Latin maxim expressio unius est exclusio alterius. Since it is one of the grounds of appeal of the appellants that this
rule should have been applied in the present case, I will now proceed to examine those grounds in the light of the background and the principles
just described.
[2018] 2 BLR p72
Kirby JP
Ground 1: Failure to apply the expressio unius est exclusio alterius principle A
While this rule is generally applied where a list of matters or things is provided in an enactment, it has also been applied in respect of separate
clauses or sections dealing with similar subject matter. So, in Mothusi v The AttorneyGeneral [1994] BLR 246, (CA) at p 265, Amissah JP held as
follows:
'The principle expressio unius est exclusio alterius, i.e. to express one thing is B implied to exclude another, is applied where a statutory proposition
might have covered a number of matters but mentions some while not mentioning others. The matters not covered, unless those mentioned are
merely examples or mentioned ex abundanti cautela, or for some other sufficient reason, are excluded. In this case the contrast is made between
Section 14(1) and C Section 15(3). In the former, Parliament expressly gave the right to make representations, in the latter, where it would also
have been expected if Parliament had so intended, it did not. The inference to be drawn, unless there is a reason to the contrary, is that Parliament
did not mention that right because it did not intend to confer it.'
Amissah JP proceeded to apply the rule in that case, but he made it clear that D each case must turn on its own facts. In that case the two
sections were juxtaposed, were consecutive, dealt with similar subject matter, and appeared to have been drafted together.
In the present case the appellants argue that in two instances where elections were to be held for important positions, namely section 39(5),
for the election of E a President, and section 58(2) as read with the First Schedule, for the election of four specially elected members of
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where elections were to be held for other important positions, namely the Speaker and the Deputy Speaker, there was no such requirement nor
[2018] 2 BLR p71
Kirby JP
This D mirrors s 28 of the Interpretation Act (Cap 01:04) which provides that:
'An enactment shall be construed as always speaking and if anything is expressed in the present tense it shall be applied to the circumstances as
they occur, so that effect may be given to the enactment according to its true intent E and spirit.'
(By s 2 the Interpretation Act is to be applied to the Constitution as well as to other Acts.)
See also Matatiele Municipality and Others v President of the Republic of South Africa and Others 2007 (6) SA 477 (CC) at p 488.
It F must also be said that other general principles of interpretation laid down in the Interpretation Act equally apply to the Constitution,
unless the context indicates the contrary. These include the rule that enactments are deemed to be remedial and for the public good and shall
receive such fair and liberal construction as will best attain its object according to its true intent and spirit (section 26). They also include the
rule that an interpretation which would render G the enactment ineffective is to be disregarded in favour of an interpretation which will enable
it to have effect (section 27). Finally, the Interpretation Act provides in section 33 that:
'Where an enactment qualifies a general expression by providing that it shall H include a number of particular matters or things, any matter or
thing which is not expressly included is by implication excluded from the meaning of the general expression.'
This is a rendering of the Latin maxim expressio unius est exclusio alterius. Since it is one of the grounds of appeal of the appellants that this
rule should have been applied in the present case, I will now proceed to examine those grounds in the light of the background and the principles
just described.
[2018] 2 BLR p72
Kirby JP
follows:
Parliament, a secret ballot was specifically required, and detailed procedures were laid down in the Constitution for this. On the other hand,
was any alternative procedure laid down. Similarly, no such procedure was laid F down for the endorsement of the Vice President by
Parliament. It followed, they argued, that a secret ballot was not to be held in those cases. Instead an open vote 'by show of hands'
(subsequently amended to 'by a collection of voices') was to be conducted under s 74(1) of the Constitution.
Leburu J rejected that argument, and I think he was right to do so. He correctly pointed out that nowhere in the Constitution is there any
reference to voting by G show of hands, or indeed to an open vote at all. Unless the Constitution provides otherwise, Parliament is given the
full power and discretion to regulate its own procedure in the way it sees best. So, where Parliament is required to conduct an internal election,
and no procedure for this is prescribed by the Constitution, Parliament may select and prescribe the process by which such election is to be
held. There are many ways in which elections may be conducted — by show of H hands, by secret ballot, by open ballot, by lining up, by
collection of voices followed by a division if necessary, by standing up, or by electronic voting, to name a selection. It is beyond the
competence of this court to direct Parliament as to which choice to make. That is for Parliament alone, in terms of its exclusive privilege to
regulate its own procedure.
It does not follow that because Parliament had directed that a secret ballot must be held in two instances, that that method of voting is
forbidden in all other
[2018] 2 BLR p73
Kirby JP
elections. A For example, no secret ballot is directed for national elections, but Parliament has, quite properly, provided for this in the Electoral
Act.
Amissah JP also considered the application of the expressio unius rule in considerable detail in relation to s 15 of the Constitution in Dow's case
supra at p 143 and concluded that it should not be applied. Aguda JA and Bizos JA agreed. I agree with Leburu J that the expressio unius maxim
has no application B in this case. It is, in any event, as he said, a rule to be sparingly invoked, particularly where enactments have been
carefully crafted. See Poynton v Cran 1910 AD 205 and Taylor v Prime Minister and Minister of Internal Affairs 1954 (3) SA 956 (SR) at p 965.
There can be no instrument more carefully crafted than the Constitution, so it will be very rare that artificial rules of construction fall C to be
invoked in interpreting its provisions. And the rule cannot properly be invoked to whittle down parliamentary privilege. As was said in Mzwinila's
case supra at p 561: 'Any diminution or cancellation of any of the privileges of Parliament must be clear and unambiguous.'
The opposite is the case here.
Much argument has been directed to us as to the propriety or impropriety of D secret ballots versus open ballots. The BDP counsel describes a
secret ballot as 'an anathema to the principles of an open and democratic society'. I disagree. The drafters of the Constitution themselves
chose a secret ballot as the compulsory procedure in certain key instances, and a secret ballot is the preferred method of election of
parliamentary
© 2018 speakers
Juta and Company (Pty)throughout
Ltd. the Commonwealth. Examples were given by the respondents,
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constitutional provisions and standing orders of Tanzania, Namibia, Zambia, Kenya, Australia, Canada, and the United Kingdom. Zimbabwe too,
just described.
[2018] 2 BLR p72
Kirby JP
follows:
Parliament, a secret ballot was specifically required, and detailed procedures were laid down in the Constitution for this. On the other hand,
was any alternative procedure laid down. Similarly, no such procedure was laid F down for the endorsement of the Vice President by
Parliament. It followed, they argued, that a secret ballot was not to be held in those cases. Instead an open vote 'by show of hands'
(subsequently amended to 'by a collection of voices') was to be conducted under s 74(1) of the Constitution.
Leburu J rejected that argument, and I think he was right to do so. He correctly pointed out that nowhere in the Constitution is there any
reference to voting by G show of hands, or indeed to an open vote at all. Unless the Constitution provides otherwise, Parliament is given the
full power and discretion to regulate its own procedure in the way it sees best. So, where Parliament is required to conduct an internal election,
and no procedure for this is prescribed by the Constitution, Parliament may select and prescribe the process by which such election is to be
held. There are many ways in which elections may be conducted — by show of H hands, by secret ballot, by open ballot, by lining up, by
collection of voices followed by a division if necessary, by standing up, or by electronic voting, to name a selection. It is beyond the
competence of this court to direct Parliament as to which choice to make. That is for Parliament alone, in terms of its exclusive privilege to
regulate its own procedure.
It does not follow that because Parliament had directed that a secret ballot must be held in two instances, that that method of voting is
[2018] 2 BLR p73
Kirby JP
Act.
parliamentary speakers throughout the Commonwealth. Examples were given by the respondents, with reference to their particular E
has a system like ours, which was the subject of a court challenge, though in different respects, in the case of Moyo & Others v Zvoma SC
28/10 (Zim). Malaba DCJ remarked that:
'The F legislature chose the secret ballot for its optimum benefits . . . the prescription of a secret ballot as the method of election of the Speaker is
based on the acceptance of the principle that it promotes and protects freedom of expression of choice of a preferred candidate without undue
influence, intimidation and fear of disapproval by others.'
I G agree with that approach, and, as a general principle, with Leburu J's finding that a secret ballot is the hallmark of a free and fair election
within a representative democracy. There may, of course, be proceedings where, for convenience, an open vote by a collection of voices is
sensible. This is particularly so in the passage of bills, where many clauses are uncontroversial and are passed by acclaim, through a collection
of voices, as prescribed in the H standing orders. Any apparent disagreement is referred to a division. That is a sensible and pragmatic
approach, but it in no way undermines the merits of a secret vote, particularly in the process of electing individual representatives.
Since the introduction of the 1997 constitutional amendment, the Vice President will, when a sitting president dies or resigns midterm,
automatically assume office as president. The endorsement of the Vice President is thus a vital procedure as it frequently signals Parliament's
approval of Botswana's future president. Only elected members may take part in the endorsement process, so it
[2018] 2 BLR p74
Kirby JP
is, indirectly, the electorate itself which is confirming the choice of a possible A future president. Parliament thus took its cue from the
Constitution when it provided for a secret vote on the endorsement of the Vice President, because, by s 35 of the Constitution itself a new
president is to be elected by Parliament by secret ballot when there is a vacancy in both the presidency and the vice presidency. Parliament
cannot be faulted for making that choice.
It is to the Commonwealth that we are, by SO 119, to look for guidance in the B case of ambiguity in matters parliamentary, and the
appellants were unable to point to a single example of a country in the Commonwealth where the speaker is elected otherwise than by secret
ballot.
The ground of appeal dealing with the expressio unius principle must fail.
Ground 2: Equating internal parliamentary elections with national elections C
This ground can be shortly dealt with. The appellants complain that the judge a quo erred in holding that the election of the Speaker and
© 2018 Juta and
Deputy Company
Speaker and (Pty) Ltd.
the endorsement Downloaded
of the Vice President is 'a continuation : Mon
or forms the Aug 01 2022of
substratum 12:12:46 GMT+0200
the ended (South
general Africa Standard
elections, that Time)
recognises a secret ballot'. In saying so the learned judge was not, in my view, averring that because these subsequent D procedures formed
[2018] 2 BLR p73
Kirby JP
Act.
parliamentary speakers throughout the Commonwealth. Examples were given by the respondents, with reference to their particular E
has a system like ours, which was the subject of a court challenge, though in different respects, in the case of Moyo & Others v Zvoma SC
28/10 (Zim). Malaba DCJ remarked that:
'The F legislature chose the secret ballot for its optimum benefits . . . the prescription of a secret ballot as the method of election of the Speaker is
based on the acceptance of the principle that it promotes and protects freedom of expression of choice of a preferred candidate without undue
influence, intimidation and fear of disapproval by others.'
I G agree with that approach, and, as a general principle, with Leburu J's finding that a secret ballot is the hallmark of a free and fair election
within a representative democracy. There may, of course, be proceedings where, for convenience, an open vote by a collection of voices is
sensible. This is particularly so in the passage of bills, where many clauses are uncontroversial and are passed by acclaim, through a collection
of voices, as prescribed in the H standing orders. Any apparent disagreement is referred to a division. That is a sensible and pragmatic
approach, but it in no way undermines the merits of a secret vote, particularly in the process of electing individual representatives.
Since the introduction of the 1997 constitutional amendment, the Vice President will, when a sitting president dies or resigns midterm,
automatically assume office as president. The endorsement of the Vice President is thus a vital procedure as it frequently signals Parliament's
[2018] 2 BLR p74
Kirby JP
ballot.
Deputy Speaker and the endorsement of the Vice President is 'a continuation or forms the substratum of the ended general elections, that
part of or at least a sequel to the election processes, then they must, by necessity, be conducted by secret ballot in the manner of the general
election. If that is what he meant, I would agree that that does not follow. It seems to me that he was doing no more than to stress that if a
secret ballot is desirable for a general election, then it cannot be seen to be undesirable for sequential intraparliamentary elections which follow
the general election. There is nothing E objectionable about that proposition.
It is no doubt true that political parties seek through caucusing and the mobilization of members by the party whips to ensure a common front
when presenting their positions in Parliament, or to back their choices for parliamentary positions. This may also be provided for in the
constitutions of political parties, which their F members voluntarily undertake to respect. Where voting is to be by a show of hands, this would
no doubt be useful to the party in detecting dissidents. But party discipline is a party matter, to be handled internally, not through court
intervention. The argument that a member's constituents need to be able to publicly observe how he casts his vote in their interests does not
bear scrutiny. Parliamentary proceedings are not televised, and there is no voting by a show of hands. In terms of the standing orders, public
votes are taken by a collection of voices. It is not G possible to place individuals as having responded with an 'aye' or a 'no' in any given
instance. Further, when a division is called, in the case of controversy, voting is done electronically in terms of Standing Order 63.2.
Then too constituents will be unable to observe how their member voted.
Parliament is in any event allowed, by Standing Order 129, to order the H withdrawal of 'strangers', that is, of members of the public, from the
House should it find this necessary. Finally, and in a telling argument, Attorney B D Leburu, for the second respondent, pointed out that in terms
of s 19(i) of the National Assembly Powers and Privileges Act (Cap 02:05), it is a criminal offence to attempt directly or indirectly by threats or
intimidation of any kind to influence a member in his vote upon any question arising in the Assembly. This certainly does not support an
argument that political parties are entitled to
[2018] 2 BLR p75
Kirby JP
'coerce' A their members to vote in a particular way. Rather this is to be done by agreement in terms of the party constitution.
There is no merit in the second ground of appeal.
Ground 3: Interpretation of the words 'subject to the Constitution' in section 76(1)
The B appellants claim that the judge erred in failing to interpret these words broadly so as to preclude Parliament in the exercise of its
privilege to regulate its own procedure from making rules which offended against 'the constitutional principles of transparency, openness and
accountability'namely by providing for secret ballots in its internal elections. The section provides, as I have said, that: 'Subject to the
provisions of this Constitution, the National Assembly may C regulate its own procedure.'
This means simply that Parliament is free to regulate its own procedure in the manner it chooses, provided that in so doing it does not
contravene any of the provisions of the Constitution. I would agree that it must comply also with the spirit of the Constitution in so doing. But
to choose the secret ballot as a method of election can hardly be said to be against the spirit of the Constitution when the D Constitution has
[2018] 2 BLR p74
Kirby JP
ballot.
Deputy Speaker and the endorsement of the Vice President is 'a continuation or forms the substratum of the ended general elections, that
part of or at least a sequel to the election processes, then they must, by necessity, be conducted by secret ballot in the manner of the general
election. If that is what he meant, I would agree that that does not follow. It seems to me that he was doing no more than to stress that if a
secret ballot is desirable for a general election, then it cannot be seen to be undesirable for sequential intraparliamentary elections which follow
the general election. There is nothing E objectionable about that proposition.
It is no doubt true that political parties seek through caucusing and the mobilization of members by the party whips to ensure a common front
when presenting their positions in Parliament, or to back their choices for parliamentary positions. This may also be provided for in the
constitutions of political parties, which their F members voluntarily undertake to respect. Where voting is to be by a show of hands, this would
no doubt be useful to the party in detecting dissidents. But party discipline is a party matter, to be handled internally, not through court
intervention. The argument that a member's constituents need to be able to publicly observe how he casts his vote in their interests does not
bear scrutiny. Parliamentary proceedings are not televised, and there is no voting by a show of hands. In terms of the standing orders, public
votes are taken by a collection of voices. It is not G possible to place individuals as having responded with an 'aye' or a 'no' in any given
instance. Further, when a division is called, in the case of controversy, voting is done electronically in terms of Standing Order 63.2.
Then too constituents will be unable to observe how their member voted.
Parliament is in any event allowed, by Standing Order 129, to order the H withdrawal of 'strangers', that is, of members of the public, from the
House should it find this necessary. Finally, and in a telling argument, Attorney B D Leburu, for the second respondent, pointed out that in terms
of s 19(i) of the National Assembly Powers and Privileges Act (Cap 02:05), it is a criminal offence to attempt directly or indirectly by threats or
intimidation of any kind to influence a member in his vote upon any question arising in the Assembly. This certainly does not support an
[2018] 2 BLR p75
Kirby JP
itself insisted on this method in the only two instances where it has imposed a compulsory method of voting.
There is no magic to the words 'subject to this Constitution'. They enjoy their natural meaning which is merely that the word 'subject to'
establishes what is dominant and what is subservient. In the case of conflict what is dominant E prevails over that which is subject to it. (See
S v Marwane 1982 (3) SA 717 (A).) A convenient dictum from C and J Clark v Inland Revenue Commissioners (1973) All ER 513 at p 520 was
adopted by this court in Mosetlhanyane and Another v The AttorneyGeneral [2011] 1 BLR 152, (CA) at p 158. In that dictum Megarry J
observed that —
'the phrase "subject to" is a simple provision which merely subjects the F provisions of the subject subsections to the provisions of the master
subsection. When there is no clash, the phrase does nothing. If there is a collision, the phrase shows what is to prevail.'
It appears that the appellants have derived their 'key constitutional principles of transparency, openness and accountability' from South African
precedents. G They quoted in this regard from the case of OrianiAmbrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC)
at p 602. Such values are specifically referred to in the South African Constitution. Section 1 of that Constitution sets out its foundation
values, including:
Universal adult suffrage, a national common voters roll, regular elections and H a multiparty system of democratic government to ensure
accountability, responsiveness and openness.'
This notwithstanding, in South Africa elections are conducted by secret ballot.
Section 57(1) of the South African Constitution provides:
'The National Assembly may —
(a) Determine and control its internal arrangements, proceedings and procedures; and
[2018] 2 BLR p76
Kirby JP
(b) make rules and orders concerning its business, with due regard to A representative and participatory democracy, accountability,
transparency and public involvement.'
Botswana's Constitution has no such provisions.
The principles of transparency, openness and accountability no doubt have their place in any democratic society in appropriate circumstances,
but the B appellants' counsel was unable to point out any reference to these in the Botswana Constitution. There are other circumstances
where
© 2018 Jutathey clearly do(Pty)
and Company notLtd.
apply, such as in the exercise of an individual's right to vote. : Mon Aug 01 2022 12:12:46 GMT+0200 (South Africa Standard Time)
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[2018] 2 BLR p75
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itself insisted on this method in the only two instances where it has imposed a compulsory method of voting.
There is no magic to the words 'subject to this Constitution'. They enjoy their natural meaning which is merely that the word 'subject to'
establishes what is dominant and what is subservient. In the case of conflict what is dominant E prevails over that which is subject to it. (See
S v Marwane 1982 (3) SA 717 (A).) A convenient dictum from C and J Clark v Inland Revenue Commissioners (1973) All ER 513 at p 520 was
adopted by this court in Mosetlhanyane and Another v The AttorneyGeneral [2011] 1 BLR 152, (CA) at p 158. In that dictum Megarry J
observed that —
'the phrase "subject to" is a simple provision which merely subjects the F provisions of the subject subsections to the provisions of the master
subsection. When there is no clash, the phrase does nothing. If there is a collision, the phrase shows what is to prevail.'
It appears that the appellants have derived their 'key constitutional principles of transparency, openness and accountability' from South African
precedents. G They quoted in this regard from the case of OrianiAmbrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC)
at p 602. Such values are specifically referred to in the South African Constitution. Section 1 of that Constitution sets out its foundation
values, including:
Universal adult suffrage, a national common voters roll, regular elections and H a multiparty system of democratic government to ensure
accountability, responsiveness and openness.'
This notwithstanding, in South Africa elections are conducted by secret ballot.
Section 57(1) of the South African Constitution provides:
'The National Assembly may —
[2018] 2 BLR p76
Kirby JP
where they clearly do not apply, such as in the exercise of an individual's right to vote.
I hold that Leburu J did not misconstrue or misinterpret the words of section 76(1). Ground of appeal number three is also unsuccessful. C
Ground 4: Substance v Procedure
Here the complaint is that in introducing a secret ballot for the election of the Speaker and the Deputy Speaker including requirements for
nominations, a minimum number of supporters and a period of notice, Parliament was impermissibly introducing amendments to the Constitution
without following D the mandatory section 89 procedure for doing so. The same applied to the introduction of a secret ballot for the purpose
of endorsing the Vice President.
Section 89(1) provides that: 'Subject to the provisions of this section Parliament may alter this Constitution.'
Section 89(2) lists provisions which require a special procedure, including a twothirds majority, for the purpose of their amendment. These
include E section 39, relating to the endorsement of the vice president.
Section 89(5)(b) provides that —
'references to the alteration of any of the provisions of this Constitution include references to the amendment, modification or reenactment, with
or without modification, of that provision, the suspension or repeal of that F provision and the making of a different provision in lieu thereof'.
The argument here is that by introducing the secret ballot, and accompanying procedures for this, Parliament was amending the Constitution by
adding requirements of substance rather than of form which were not there before.
Leburu J held that what Parliament had done in the relevant standing orders G was merely to lay down the procedures to be adopted, in terms
of the mandate of the National Assembly. They were not amendments as such at all. I think he was right to so find.
I accept that the National Assembly is empowered to make standing orders relating to procedure only, and not to alter in substance any of the
dictates of the Constitution. That would be ultra vires. However, the line between what relates to substance and what relates H to procedure
is never a clear one. As Corbett JA held in Universal City Studios Inc and Others v Network Videos (Pty) Ltd 1986 (2) SA 734 (A) at p 754,
when considering a similar matter:
'There is no doubt that the Supreme Court possesses an inherent reservoir of power to regulate its procedure in the interests of the proper
administration of justice . . . the Court does not have an inherent power to create substantive law,
[2018] 2 BLR p77
Kirby JP
but A the dividing line between substantive and adjectival law is not always an easy one to draw. . . .'
That dictum was endorsed by this court in Monnanyana v The State [2002] 1 BLR 72, (CA) and in Re AttorneyGeneral's Reference; State v
Malan [1990] BLR 32, (CA).
Paton
© 2018 B on
Juta and Jurisprudence
Company (Pty) Ltd.(4 ed) states at para 127 that: Downloaded : Mon Aug 01 2022 12:12:46 GMT+0200 (South Africa Standard Time)
'Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by
[2018] 2 BLR p76
Kirby JP
where they clearly do not apply, such as in the exercise of an individual's right to vote.
I hold that Leburu J did not misconstrue or misinterpret the words of section 76(1). Ground of appeal number three is also unsuccessful. C
Ground 4: Substance v Procedure
Here the complaint is that in introducing a secret ballot for the election of the Speaker and the Deputy Speaker including requirements for
nominations, a minimum number of supporters and a period of notice, Parliament was impermissibly introducing amendments to the Constitution
without following D the mandatory section 89 procedure for doing so. The same applied to the introduction of a secret ballot for the purpose
of endorsing the Vice President.
Section 89(1) provides that: 'Subject to the provisions of this section Parliament may alter this Constitution.'
Section 89(2) lists provisions which require a special procedure, including a twothirds majority, for the purpose of their amendment. These
include E section 39, relating to the endorsement of the vice president.
Section 89(5)(b) provides that —
'references to the alteration of any of the provisions of this Constitution include references to the amendment, modification or reenactment, with
or without modification, of that provision, the suspension or repeal of that F provision and the making of a different provision in lieu thereof'.
The argument here is that by introducing the secret ballot, and accompanying procedures for this, Parliament was amending the Constitution by
adding requirements of substance rather than of form which were not there before.
Leburu J held that what Parliament had done in the relevant standing orders G was merely to lay down the procedures to be adopted, in terms
of the mandate of the National Assembly. They were not amendments as such at all. I think he was right to so find.
I accept that the National Assembly is empowered to make standing orders relating to procedure only, and not to alter in substance any of the
dictates of the Constitution. That would be ultra vires. However, the line between what relates to substance and what relates H to procedure
is never a clear one. As Corbett JA held in Universal City Studios Inc and Others v Network Videos (Pty) Ltd 1986 (2) SA 734 (A) at p 754,
when considering a similar matter:
'There is no doubt that the Supreme Court possesses an inherent reservoir of power to regulate its procedure in the interests of the proper
[2018] 2 BLR p77
Kirby JP
Malan [1990] BLR 32, (CA).
Paton B on Jurisprudence (4 ed) states at para 127 that:
which these ends are to be obtained.'
And C Baxter on Administrative Law at p 511 states that:
'The test of whether delegated legislation is ultra vires is whether the delegated legislation in issue advances the legislative objectives and policy
of the empowering legislation or whether it runs contrary to its policy and objectives.' D
Although the standing orders of Parliament are not delegated legislation in the strict sense, being internal rules composed under the authority of
the Constitution, the principles applicable are the same.
Yacoob J held, uncompromisingly, in New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA
191 (CC) E at p 200 that:
'The mere existence of the right to vote without proper arrangements for its exercise does nothing for democracy; it is both empty and useless.'
Those words are particularly apposite to this case.
And F in Moyo's case (supra) Malaba DCJ held, in relation to similar provisions in Zimbabwe's Constitution and standing orders that:
'In construing Section 39(2) of the Constitution, as read with Standing Order 6, it is important to bear in mind that the right to vote resting in the
members present and voting at the first meeting of the House is not affected by the G requirement that the election should be conducted by a
secret ballot. The statute relates to procedure alone and directs the mode in which the right to vote is to be exercised by the electors.'
In Mazibuko's case supra at p 267 Moseneke DCJ held that:
'When H the Constitution entitles a member or party to take a particular step or embark on a procedure in the Assembly, the rules may prescribe
a procedure for the envisaged process. What the rules may not do is thwart or frustrate the steps and thereby negate a constitutional requirement.'
In this case I am satisfied that the impugned standing orders have in no way thwarted or negated any of our constitutional requirements, and
do not run contrary to the policy and objectives of the Constitution.
[2018] 2 BLR p78
Kirby JP
I agree with the respondents that the requirement of voting by secret ballot A does not amount to a substantive amendment of any provision
of the Constitution, but it is rather an arrangement put in place by the National Assembly for the effective exercise of the members' right to
vote without outside influence or coercion which could render the right an empty one. The requirements of nomination forms, minimum numbers
of supporters, notice, and the use of voting B booths and ballot papers are also sensible procedures introduced for the smooth conduct of the
elections. They are similar in some respects to the requirements of the Electoral Act regarding candidates in national elections. The fact that
they add to the responsibilities of candidates does not make them improper. They do not affect or amend the right to vote conferred by the
Constitution. And, I need hardly add, if the members of Parliament are dissatisfied with the method of C voting they have chosen, it is open to
them at any time to change this merely by amending their standing orders. It might render them out of line with the rest of the Commonwealth,
© 2018
but Juta and Company
it would (Pty) Ltd.
be well within Downloaded
their constitutional rights. I hold that the standing orders do :not
Monhave
Aug 01
the2022 12:12:46
effect GMT+0200amending
of improperly (South Africa
anyStandard Time)
substantive constitutional provision. Ground No 4 also fails D .
[2018] 2 BLR p77
Kirby JP
Malan [1990] BLR 32, (CA).
Paton B on Jurisprudence (4 ed) states at para 127 that:
which these ends are to be obtained.'
And C Baxter on Administrative Law at p 511 states that:
'The test of whether delegated legislation is ultra vires is whether the delegated legislation in issue advances the legislative objectives and policy
of the empowering legislation or whether it runs contrary to its policy and objectives.' D
Although the standing orders of Parliament are not delegated legislation in the strict sense, being internal rules composed under the authority of
the Constitution, the principles applicable are the same.
Yacoob J held, uncompromisingly, in New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA
191 (CC) E at p 200 that:
'The mere existence of the right to vote without proper arrangements for its exercise does nothing for democracy; it is both empty and useless.'
Those words are particularly apposite to this case.
And F in Moyo's case (supra) Malaba DCJ held, in relation to similar provisions in Zimbabwe's Constitution and standing orders that:
'In construing Section 39(2) of the Constitution, as read with Standing Order 6, it is important to bear in mind that the right to vote resting in the
members present and voting at the first meeting of the House is not affected by the G requirement that the election should be conducted by a
secret ballot. The statute relates to procedure alone and directs the mode in which the right to vote is to be exercised by the electors.'
In Mazibuko's case supra at p 267 Moseneke DCJ held that:
'When H the Constitution entitles a member or party to take a particular step or embark on a procedure in the Assembly, the rules may prescribe
a procedure for the envisaged process. What the rules may not do is thwart or frustrate the steps and thereby negate a constitutional requirement.'
In this case I am satisfied that the impugned standing orders have in no way thwarted or negated any of our constitutional requirements, and
[2018] 2 BLR p78
Kirby JP
but it would be well within their constitutional rights. I hold that the standing orders do not have the effect of improperly amending any
Ground 5: Does the Constitution specify a method of voting in the election of the speaker and deputy speaker, and in the endorsement of the
vice president?
Here the argument of the appellants is that the judge a quo erred in holding that no method of voting was prescribed for the election of the
Speaker and the Deputy Speaker, and for the endorsement of the Vice President. It is their E argument that s 74 of the Constitution as read
with Standing Orders 61 – 63 do prescribe an open method of voting in these matters.
I have quoted section 74 earlier in this judgment, and I cannot agree with the appellants' submission, which, in my view, is selfdefeating. It is a
circular argument. It proceeds on the basis that it is the Constitution which prescribes the manner of voting in parliamentary proceedings, which
is by majority vote. F The standing orders cannot amend or add to that section. It then continues that Standing Orders 61 – 63 (which
provide for voting by collection of voices, with a division if necessary) are themselves somehow constitutional in nature since they were there
from October 1966. That cannot be. Standing Orders are the creation of Parliament and can be amended by Parliament at will. The standing
orders introduced by Parliament requiring secret ballots (which are challenged in this G case) are of equal force with those calling for a
collection of voices in the passage of bills and in the consideration of resolutions.
I am also by no means convinced that section 74 is applicable to elections at all. It provides at section 74(3) that if there is an equality of
votes, then 'the motion shall be lost'. That would provide no closure in an election. Rather H procedures are needed (as the Constitution has
provided in sections 35 and 39, and Parliament has provided in Standing Orders 4 and 6) for the breaking of deadlocks by a second ballot in the
case of elections.
I hold that the Constitution did not lay down a procedure for the election of the Speaker and the Deputy Speaker, or for the endorsement of the
Vice President. It left that task for Parliament to address through the standing orders, and it had done so.
[2018] 2 BLR p79
Kirby JP
The A fifth and final ground of appeal can also not succeed.
Those are the reasons why this appeal was dismissed on 10 November 2014, with costs.
Dibotelo CJ, Legwaila, Lesetedi and Gaongalelwe JJA concurred.
The B appeal was dismissed with costs.
[2018] 2 BLR p79
[2018] 2 BLR p78
Kirby JP
but it would be well within their constitutional rights. I hold that the standing orders do not have the effect of improperly amending any
Ground 5: Does the Constitution specify a method of voting in the election of the speaker and deputy speaker, and in the endorsement of the
vice president?
Here the argument of the appellants is that the judge a quo erred in holding that no method of voting was prescribed for the election of the
Speaker and the Deputy Speaker, and for the endorsement of the Vice President. It is their E argument that s 74 of the Constitution as read
with Standing Orders 61 – 63 do prescribe an open method of voting in these matters.
I have quoted section 74 earlier in this judgment, and I cannot agree with the appellants' submission, which, in my view, is selfdefeating. It is a
circular argument. It proceeds on the basis that it is the Constitution which prescribes the manner of voting in parliamentary proceedings, which
is by majority vote. F The standing orders cannot amend or add to that section. It then continues that Standing Orders 61 – 63 (which
provide for voting by collection of voices, with a division if necessary) are themselves somehow constitutional in nature since they were there
from October 1966. That cannot be. Standing Orders are the creation of Parliament and can be amended by Parliament at will. The standing
orders introduced by Parliament requiring secret ballots (which are challenged in this G case) are of equal force with those calling for a
collection of voices in the passage of bills and in the consideration of resolutions.
I am also by no means convinced that section 74 is applicable to elections at all. It provides at section 74(3) that if there is an equality of
votes, then 'the motion shall be lost'. That would provide no closure in an election. Rather H procedures are needed (as the Constitution has
provided in sections 35 and 39, and Parliament has provided in Standing Orders 4 and 6) for the breaking of deadlocks by a second ballot in the
case of elections.
I hold that the Constitution did not lay down a procedure for the election of the Speaker and the Deputy Speaker, or for the endorsement of the
[2018] 2 BLR p79
Kirby JP
[2018] 2 BLR p79
[2018] 2 BLR p79
Kirby JP
[2018] 2 BLR p79
[2018] 2 BLR p79

Botswana Democratic Party and Another V Umbrella For Democratic Change and Another (2018) 2 BLR 60 (CA)

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Botswana Democratic Party and Another V Umbrella For Democratic Change and Another (2018) 2 BLR 60 (CA)

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Citation [2018] 2 BLR 60 (CA) A

Court Court of Appeal, Gaborone

Case No Civ App No 114 of 2014

Judgment 8 December 2014

[2018] 2 BLR p61

Cases B referred to:

Attorney­General v Dow [1992] BLR 119, (CA)

C and J Clark v Inland Revenue Commissioners (1973) All ER 513

James v Commonwealth of Australia (1936) AC 578

Mazibuko NO v Sisulu and Others C 2013 (6) SA 249 (CC)

Monnanyana v The State [2002] 1 BLR 72, (CA)

Mosetlhanyane and Another v The Attorney­General [2011] 1 BLR 152, (CA)

Mothusi v The Attorney­General [1994] BLR 246, (CA)

Moyo & Others v Zvoma SC 28­10 (Zim)

[2018] 2 BLR p61

Cases B referred to:

Attorney­General v Dow [1992] BLR 119, (CA)

C and J Clark v Inland Revenue Commissioners (1973) All ER 513

James v Commonwealth of Australia (1936) AC 578

Mazibuko NO v Sisulu and Others C 2013 (6) SA 249 (CC)

Monnanyana v The State [2002] 1 BLR 72, (CA)

Mosetlhanyane and Another v The Attorney­General [2011] 1 BLR 152, (CA)

Mothusi v The Attorney­General [1994] BLR 246, (CA)

Moyo & Others v Zvoma SC 28­10 (Zim)

Mutasa v Makombe NO D 1998 (1) SA 397 (ZS)

Mzwinila v The Attorney­General [2003] 1 BLR 554, (HC)

Petrus and Another v The State E [1984] BLR 14, (CA)

Poynton v Cran 1910 AD 205

Re Attorney­General's Reference; State v Malan [1990] BLR 32, (CA)

S v Marwane 1982 (3) SA 717 (A)

M Chamme (with O S Rammidi) for the second appellant.

[2018] 2 BLR p62

[2018] 2 BLR p62

[2018] 2 BLR p63

[2018] 2 BLR p64

[2018] 2 BLR p63

[2018] 2 BLR p64

[2018] 2 BLR p65

[2018] 2 BLR p64

[2018] 2 BLR p65

– G Nowhere did the Constitution require a vote by a show of hands.

– No section of the Constitution had been infringed.

They would thus oppose any application for an interdict.

[2018] 2 BLR p66

[2018] 2 BLR p65

– G Nowhere did the Constitution require a vote by a show of hands.

– No section of the Constitution had been infringed.

They would thus oppose any application for an interdict.

[2018] 2 BLR p66

[2018] 2 BLR p67

A. A That the application was not urgent since:

[2018] 2 BLR p66

[2018] 2 BLR p67

A. A That the application was not urgent since:

Leburu J (with Walia J and Tau J concurring) held that:

[2018] 2 BLR p68

[2018] 2 BLR p67

A. A That the application was not urgent since:

Leburu J (with Walia J and Tau J concurring) held that:

[2018] 2 BLR p68

The grounds of appeal advanced by the appellants are the following:

AttorneyGeneral v Dow [1992] BLR 119, (CA)

Mosetlhanyane and Another v The AttorneyGeneral [2011] 1 BLR 152, (CA)

Mothusi v The AttorneyGeneral [1994] BLR 246, (CA)

Moyo & Others v Zvoma SC 2810 (Zim)

AttorneyGeneral v Dow [1992] BLR 119, (CA)

Mosetlhanyane and Another v The AttorneyGeneral [2011] 1 BLR 152, (CA)

Mothusi v The AttorneyGeneral [1994] BLR 246, (CA)

Moyo & Others v Zvoma SC 2810 (Zim)

Mzwinila v The AttorneyGeneral [2003] 1 BLR 554, (HC)

Re AttorneyGeneral's Reference; State v Malan [1990] BLR 32, (CA)