Parliamentary Question to ask

Question No.: 415 (7)
Asked on: Monday 1st August, 2022
By: Mr. D. Saleshando, MP. (Maun West)
QUESTION:
To ask the Minister for State President:
(i) Why Bill Number 18 of 2013, amending section 68 (1)(a) of the Constitution was never assented to by His Excellency the President after it was passed by the National Assembly;
(ii) the procedure to be followed where a president chooses not to assent to a Bill; and
(iii) if all the constitutional procedures have been complied with.
ANSWER:
(i) Mr Speaker,
The Bill No. 18 of 2013 (herein after 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.
Mr Speaker,
I have been advised that His Excellency, the former President Lieutenant General Dr. Seretse Khama Ian Khama, on the guidance of the then Attorney General did not assent to the Bill, following the advice rendered to him that the proposed amendment was both undesirable and impractical under our constitutional set up. Further, the proposed amendment was held to be in conflict with other provisions of the Constitution.
Mr Speaker, the following are what renders the proposed amendment both undesirable and impractical –
a) the proposed amendment seeks to continue the office of a Member of Parliament (MP) notwithstanding that Parliament has been dissolved. This is not tenable because a person cannot be a member of a body that is no longer in existence;
b) 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. It should be noted that the procedure for amendment of these sections is that they be subjected to a referendum and be approved by a majority of the electors voting.
c) As stated in paragraph b) above, the proposed amendment is in conflict with other provisions of the Constitution and therefore does not pass the Constitutionality test.
(ii) Mr Speaker,
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 –
“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 reference in the cases specified in section 88(2) of this Constitution to the Ntlo ya Dikgosi, and assented to by the President.
(2) When a Bill is presented to the President for assent he or she shall either assent or withhold his or her assent.
(3) Where the President withholds his or her assent to a Bill, the Bill shall be returned to the National Assembly.
(4) If 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, 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.”
(iii) On whether all the constitutional procedures have been complied with, Mr Speaker, I can confirm that all the constitutional procedures alluded to herein have been complied with. It should be noted that there are no time limits in so far as returning a Bill to the National Assembly when the President withholds his assent.