Gideon Nkala
14 November 2007
Health Minister, Professor Sheila Tlou might need more than just a prescription of Panados that her medical stores dispense to deal with the legal headaches that the resignation of Boyce Sebetela has placed on her. Sebetela's departure from Palapye was widely expected to present Tlou with a big Christmas bonus but as it turns out, the minister has a humungous political and legal logjam to deal with.
Can Tlou contest the by-election without resigning her position as Specially Elected Member of Parliament? Can she continue carrying on as minister of Health while she is not an MP? If she resigns as an MP, how soon can Parliament fill the vacancy? Would the BNF's Dr Kathleen Letshabo, who was the number five in the list of parliamentary nominations by law to take up the vacancy that Tlou's resignation would create, be standing in line?
These are the many key questions that the minister together with the Botswana Democratic Party would have to contend with before Tlou plunges into the Palapye parliamentary by-election.
Tlou is quite alive to the enormity of the call placed on her.
"I have an interest to contest in Palapye but I will seek advise from the party and others whether to resign or not. There should be a procedure to be followed.
"The question is if I resign and lose the by-election, can I come back to Parliament?" she wondered. This is not an easy answer with legal experts saying the constitution itself is ambivalent if not silent on the matter.
Parks Tafa, a senior partner at Collins and Newman law firm who also happens to be a BDP lawyer is convinced that in terms of the law, there is nothing that stops Tlou to contest the by-elections whilst she still clings to her current position as a specially elected member of parliament.
"The constitution does not expressly disqualify her from contesting. The constitution gives a list of people that cannot contest like members of Ntlo ya Dikgosi, public servants, those that are insolvent, insane and others but it is silent on specially elected MPs.
"The conclusion is that strictly in law, she can contest even as an MP," said Tafa. Bugalo Maripe, a law lecturer at the University of Botswana, while agreeing that the constitution does not expressly exclude Tlou from contesting the by-election while she remains a specially elected MP, contends that the purpose and spirit of the law suggests otherwise.
"The law is not always what is written in black and white, often it is the import and the effect that gives life to the law.
In his analogy, he sees two likely scenarios that Tlou would want to contest the election for the sole purpose of being an MP. "In other words by choosing to contest in Palapye by-election she seeks what she already has," said Maripe.
"If she were to contest and win she would be an MP through two processes, the elected route and specially elected one. Was this the intention of the law that the two should reside in one person? It would appear that she would have to relinquish her position as MP before she contests the by-election," argued Maripe.
Tlou' s position is unwieldy and murky even to politicians. "I think she would have to resign her position because it complicates her political campaign.
"Imagine how it would hurt her campaign if she were to say to Palapye voters that 'I am already specially elected MP but I want you to elect me to Parliament still'. It would be so ridiculous because the effect of this would be if she wins, she would keep two MP positions. It would make our campaign very difficult," said a BDP member in Palapye.
There is a legal view that if Tlou were to resign her position as a specially elected Member of Parliament, it would immediately be snapped up by the BNF's Kathleen Letshabo who was number five when Parliament elected the four specially elected members after the 2004 general elections.
Proponents of this view say parliament is bound by the rules not to call for fresh nominations but merely to bring to Parliament the person who polled the next highest votes who, in this case, was Letshabo.
This view is completely rejected by Parliamentary counsel, Lizo Ngcongco. Will Letshabo find her way into Parliament through Tlou's resignation?
"Definitely not,"Ngcongco emphasised. Ngcongco quotes the first schedule to the constitution as outlined in chapter five, "in this schedule, by-election means an election to fill a vacancy among specially elected members occurring otherwise than upon a dissolution of Parliament. ...Any elected member of the assembly (other than the President if he or she is an elected member) shall thereupon be entitled to nominate four candidates for election in the case of a general election and one candidate for election in the case of a by-election".
Tafa shares Ngcongco's view saying Letshabo's elevation to be the fourth nominated member would have only applied after the general election when one of those that were chosen ahead of her rescinded or was found to have been found unworthy of appointment at the time.
"But this is a by-election and it is governed by specific rules which are different from those that obtain in a general election arrangement," he said.
According to Tafa, Parliament would have to convene just for the purpose of nominating and electing the specially elected member who takes up the vacancy created by Tlou's resignation as specially elected MP.
If Tlou resigns as a Member of Parliament, what happens to her position as Minister of Health?
"She can continue to be a minister even though she is not a Member of Parliament for a while. You should recall that Vice President Ian Khama came to Parliament through the same constitutional provision.
"He was first appointed Minister of Presidential Affairs even though he was not a member of parliament as he had to wait for Roy Blackbeard to resign. Subsequent to Blackbeard's resignation, Khama contested the Serowe South by-election and won. He was eventually appointed Vice President after he became a member of parliament," opined Tafa.
Ngcongco refers to section 43 of the constitution for guidance on the matter and it reads thus: "The office of any minister or assistant shall become vacant (a) in the case of a Minister or Assistant Minister appointed from among members of the National Assembly, or in the case of a minister or Assistant minister appointed from among persons who are not members of the assembly before the expiration of four months from the date of his appointment".
Is it possible that the BDP can allow Tlou to resign and keep the position of the specially elected open just to see how Tlou fares in the by-elections with a view to bring her back as a specially elected MP when she loses the elections?
Opinions vary with some lawyers saying that once there is a specially elected MP vacancy in Parliament, the national assembly is under compulsion to fill the vacancy within a reasonable time. Others say the constitution does not prescribe a time limit and as such the BDP can bid its time knowing that they are not offending the constitution in any way.
Tafa refers to the constitution under the schedule for clarity: "The Speaker shall cause elections of specially elected members to be held (a) in the case of a general election, as soon as practicable after the holding of a general election of the elected members of the general assembly and before the assembly first meets after the general election and (b) in the case of a by-election, as soon as practicable after a vacancy has occurred among the specially elected members," the schedule reads. Lawyers say the 'as soon as practicable' is subject to multiple interpretations or even abuse. Tlou is aware of the risks and the controversies involved and personally she thinks she would err on the side of caution and resign her position as MP. She is aware that if she resigns, a possibility looms that she might not come back either by losing in the BDP primaries or the by-elections themselves.
"I hear there are about five of us in Palapye that have expressed interest to contest the BDP primaries. But I still feel I should take the risk and go on to contest. If the Palapye people reject me, I will have to go back to my job at the University of Botswana," she said as she rushed into Parliament.
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