The issue that our Parliament grappled with today has recently arisen in South Africa. In President of South Africa v Office of the Public Protector and Others 2018 (2) SA 100(GP) the Constitutional Court confirmed the Public Protector’s remedial action that the Chief Justice, and not the clearly conflicted President Zuma, must appoint a commission of enquiry into State Capture by the Guptas. The RSA situation was even more complex, for section 84(2)f of their Constitution provides that the President-the President alone-is “responsible for appointing commissions of enquiry”. On a purposive interpretation of the entire constitutional scheme, the ConCourt held that the remedial action that the CJ appoints in view of Zuma’s conflict is proper. I think the Botswana constitutional scheme also allows either parley and the High Court to decide that where the Pres or his deputy are implicated, parley can make a law, by amendment or variation, to allow the CJ to appoint a commission of enquiry. Parley is given the power, by the Constitution, to make laws for the “good governance” of Botswana.
The High Court may also interpret the Commissions of Enquiry Act through the prism of the Constitution by ordering the CJ to appoint a commission of enquiry where the Pres and his deputy are conflicted. It is for interested parties to approach it for that relief, but I don’t think parley is harmstrung by its own Act of parley which it can, at all times, amend or vary for the “ good governance” of Botswana as enjoined by the grundnorm (the Constitution). Methinks that our leaders in parliament should approach this issue as an urgent issue needing serious attention, avoiding all sorts of partisan politics for the “good governance” of Botswana.
Well, this does not mean that parley and its committees, which might be dominated by the ruling party which is led by those who may be implicated, should not do its own enquiry. Parley’s political enquiry does not have to stop a commission of enquiry.There is no law that prohibits parley from making its own enquiry over issues that may be before a commission of enquiry. We see that in RSA over the State Capture’s Justice Zondo’s Commission of Enquiry. Parley continues to carry out its own investigations on the matter. Nothing wrong with that.