The Botswana Court of Appeal has dismissed an appeal by President Ian Khama aimed at forcing MPs to vote for the vice-president, the speaker and deputy speaker of Parliament by a show of hands.
Khama argued that voting by secret ballot in terms of a standing order of the National Assembly was unconstitutional.
But MPs saw it as a move to intimidate them into supporting his preferred candidates.
After the October 24 general elections, Parliament was not sworn in as expected because Khama withheld the required proclamation.
Instead, he approached the courts to challenge the use of the secret ballot after his Botswana Democratic Party (BDP) MPs refused to give him guarantees that they would elect his preferred speaker, thought to be Gladys Kokorwe, and endorse his brother Tshekedi Khama for the vice-presidency.
A case was then filed by attorney general Athalia Molokomme on the president’s behalf, with the opposition parties Umbrella for Democratic Change, Botswana Congress Party (BCP) and BDP as respondents.
During the court hearing, the BDP argued in favour of the application.
Molokomme contended in court papers that the matter should be resolved urgently because the vacancies in the three offices would paralyse Parliament.
High court judges Michael Leburu, Singh Walia and Tebogo Tau rejected the application, ruling that Parliament had the necessary power and standing to regulate its own affairs and that the court had no power to infringe on that power.
The court also declared that the standing orders could not violate the Constitution because they were promulgated in accordance with it.
“The secret ballot is the hallmark of democracy because it gives effect to freedom of expression,” said the judges.
Molokomme immediately appealed, while applying for the standing order to be suspended.
However, on Monday, a panel of five Botswana Court of Appeal judges upheld the high court ruling.
Government spokesperson Jeff Ramsay issued a press release affirming that the government respected the court and would comply with its ruling.
Political analyst Lesole Machacha said the legal basis of the application remained a mystery to him. “Standing orders are passed by Parliament and the AG [attorney general] endorses them … but now the same AG turns around and challenges her own decisions.”
Machacha said if the courts ruled in favour of Molokomme, it would have involved a breach of the principle of the separation of powers.
BCP president Dumelang Saleshando said Khama was typical of second-term presidents, who were “always unsure of what to do”.
On Wednesday afternoon the National Assembly voted in Education Minister Mokgweetsi Masisi, a Khama loyalist, as vice-president. As predicted, Kokorwe was elected speaker of Parliament.