Khama didn’t sign Saleshando’s flawed Bill into law
Former President Ian Khama - under the guidance of the then Attorney General - did not assent to the Bill which sought to continue the office of a Member of Parliament even when Parliament is dissolved.
Assistant Minister for State President Meshack Mthimkhulu told Parliament that this was after Khama received advice that the proposed amendment was both undesirable and impractical under the Constitutional setup.
Further, the proposed amendment was held to be in conflict with other provisions of the Constitution. Mthimkhulu revealed that among others, some of the proposed amendments both undesirable and impractical include that it seeks to continue the office of an MP notwithstanding that Parliament has been dissolved.
He said this is not tenable because a person cannot be a member of a body that is no longer in existence; and the proposed amendment has a knock- on effect on Sections 32( 1), 39( 6), 42( 3), 90( 3) and 91( 5) of the Constitution. Sections 90( 3) and 91( 5) of the Constitution are entrenched, the Assistant Minister said.
“The Bill No. 18 of 2013 ( hereinafter referred to as “the Bill”) was introduced as a Private Member’s Bill and was passed by the National Assembly on 27th March 2014.
The Bill was not drafted in the Attorney General’s Chambers and was further published in the Gazette without seeking advice from the Attorney General. Prior to the Bill being passed, the Attorney General had advised the General Assembly that the Bill was both substantially and procedurally flawed. This advice was rendered on 17th February 2014,” he said.
Mthimkhulu who is also MP for Gaborone South told Parliament this week that the procedure for amendment of these sections is that they are subjected to a referendum and be approved by a majority of electors voting.
According to the Minister, the proposed amendment is in conflict with other provisions of the Constitution and therefore, does not pass the constitutionality test. He said the procedure to be followed where the President chooses not to assent to a Bill is provided for in the Constitution.
“I can do no better than quote Section 87 of the Constitution which provides as follows: Section 87 ( 1).“Subject to the provisions of Section 89 ( 4) of this Constitution, the power of Parliament to make laws shall be exercised by Bills passed by the National Assembly after a reference in cases specified in
Section 88 ( 2) of this Constitution to the Ntlo ya Dikgosi and assented to by the President.
“When a Bill is presented to the President for assent, he or she shall either assent or withhold his or her assent. Where the President withholds his or her assent to a Bill, the Bill shall be returned to the National Assembly.”
Mthimkhulu indicated that where the President withholds his or her assent to a Bill, the Assembly resolves within six months of the Bill being returned to it that the Bill should again be presented for assent, and the President shall assent to the Bill within 21 days of its being again presented to him or her unless he or she sooner dissolves Parliament.
On whether the constitutional procedures were complied with, Mthimkhulu responded in the affirmative. There are no time limits in so far as returning a Bill to the National Assembly when the
President withholds his or her assent, he added.
Maun West MP Dumelang Saleshando had asked the State President Minister to state why the Bill amending Section 68( 1)( a) of the Constitution was never assented to by the President after it was passed by the National Assembly; the procedures to be followed where a President chooses not to assent to a Bill; and if all the Constitutional procedures have been complied with.