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IN THE HIGH COURT OF
BOTSWANA HELD AT GABORONE

MAHGB-000845-13

DATE: 28 JANUARY 2015

In the matter between:

Ontefetse Kenneth
Matambo……………………………………………………………..Applicant

And

Speaker of the National
Assembly………………………………………………1st
Respondent

Chairperson of the Special Select
Committee of………………………..2nd
Respondent

Enquiry into the Botswana
Development Corporation’s

Fengyue Glass Manufacturing
Project

Attorney
General………………………………………………………………………3rd
Respondent

Advocate P Farlam (assisted by K,
Reynolds, Dineo Makati-Mpho, B Matenge) for the Applicant

Advocate P. Ellis (assisted by P.
Kgoadi) for the Respondents

J U D G M E N T

DINGAKE J:

Introduction

1. In this matter, the Applicant seeks
to review and set aside the proceedings of the Select Committee of
the National Assembly,
and that of the National Assembly itself,
primarily on the basis that the adoption of the Committee’s
report by the National
Assembly is a nullity and/or unlawful on
account of violation of the principles of natural justice, in
particular, the audi alteram
partem rule.

2. The background to this lis is that
in December 2011, the National Assembly adopted a resolution that a
Special Select Committee
of Parliament be appointed to investigate
certain allegations relating to the Botswana Development Cooperation
hereinafter referred
as BDC and the Fengyue Glass Manufacturing
Project.

3. Such committee, known as the Special
Select Committee of Inquiry into BDC Project (“the Committee”)
was in due course
appointed. The Committee carried out its
proceedings over the course of 2012. The Committee’s
proceedings culminated in
the adoption and issue of a report (“the
Report”) in December 2012. In July 2013, the Report was
presented to, and
was adopted by the National Assembly.

4. The Report made findings critical of
the Applicant and damaging to his reputation.

5. In these proceedings, the Applicant
seeks various forms of relief relating to the Committee’s
proceedings, the Report,
and the adoption of the Report by the
National Assembly. Specifically, the Applicant seeks an order-

5.1 declaring that the adoption by the
National Assembly of the Report was unlawful, and accordingly
invalid;

5.2 reviewing and setting aside the
adoption of the Report by the National Assembly; alternatively
expunging the Report from the
official records of Parliament, further
alternatively expunging certain specifically identified sections of
the Report from the
official records of Parliament;

5.3 declaring that the proceedings of
the Committee were unlawful insofar as they related to the Applicant;

5.4 setting aside the proceedings of
the Committee, alternatively those portions of the proceedings of the
Committee which related
to the Applicant;

5.5 reviewing and setting aside the
adoption of the Report by the Committee;

5.6 striking out, or expunging, certain
specifically identified sections of the Report.

6. The 1st Respondent is the Speaker of
the National Assembly and is cited as a Respondent in these
proceedings in that capacity.
The 2nd Respondent was the Chairperson
of the Committee and is cited as a Respondent in these proceedings in
that capacity. No
relief is sought against the 2nd Respondent, save
for a cost order in the event he opposes this application. The 3rd
Respondent
is the Attorney General of the Republic of Botswana.

The factual background

7. The facts that underpin this matter
are largely common cause. BDCis a state-owned entity, which was
established as an investment
vehicle for the Botswana Government. It
is governed by a Board of Directors who are appointed by the Minister
of Finance and Development
Planning.

8. The Applicant served as the Managing
Director of BDC for ten years, from November 1998 until November
2008. Since October 2009,
he has served as Botswana’s Minister
of Finance and Development Planning.

9. One of the projects which the BDC
invested in was a Fengyue Glass Manufacturing Project. It was
implemented in approximately
2007 via a newly-registered entity.

10. It is not in dispute that the
project was beset with problems. They included construction delays,
financial problems, concerns
regarding the suitability of the Chinese
joint venture partner, and mal-performance by contractors.
Allegations circulated regarding
impropriety and mismanagement.

11. On 2 December 2011, the National
Assembly passed a resolution to appoint the Committee. The Committee
carried out its work
over the course of several months in 2012.

12. In the course of executing its
mandate,the Committee held hearings. Witnesses were invited to
present evidence to the Committee;
for example, via advertisements in
the press. The Committee summoned certain individuals who did not
volunteer to give evidence
in response to such invitation. The
Committee heard evidence from many witnesses, exceeding, 50,
includingthe Applicant. The
evidence or information gathered was
voluminous.

13. It is common cause that the
Committee (i) took the evidence of witnesses in camera, (ii) did not
invite or allow persons other
than its members to challenge the
evidence of other witnesses, and (iii) did not as a rule put, to a
witness being examined, the
evidence of other witnesses.

14. The Applicant was not represented
or accompanied by a legal representative when he gave evidence.

15. The Committee completed its report
in late 2012. The Report was presented by the 2nd Respondent to the
National Assembly on
7 November, 2012.

16. On 4 March, 2013,the Applicant’s
attorneys wrote to the 2nd Respondent, copying the 1st Respondent.
In their letter,
the Applicant’s attorneys, inter alia, pointed
out that the Report was flawed and fell to be set aside and called on
the
2nd Respondent to withdraw the adverse findings (as had been
reported in the press) in the Report.

17. Following the aforesaid letter, the
parties exchanged correspondence for a prolonged period running into
months. These correspondences
included the 3rd Respondent.

18. On 18 July, 2013, at which pointthe
Applicant and his attorneys were still awaiting a substantive
response tothe Applicant’s
demands – the notice paper in
respect of the parliamentary sessions scheduled for the following
week was issued.

19. The notice paper included a notice
of motion by the 2nd Respondent, proposing the adoption of the Report
at a parliamentary
session on 25 July, 2013.

20. On 24 July 2013, the Applicant’s
attorneys wrote urgently to the 3rd Respondent. They enclosed copies
of the previous
correspondence, and advised that, while they had yet
to receive a substantive response to the Applicant’s demand, a
motion
had been proposed for the adoption of the Report the following
day. They called for the removal of that item from the following

day’s agenda, pending resolution of the matter either amicably
or by a court.

21. No response was received.

22. The following day, 25 July,
2013,the Applicant’s attorneys again wrote urgently to the 3rd
Respondent. Again, no response
was received.

23. At the end of the day, the item was
not removed from the 25 July, 2013, agenda. The Report was tabled
before the National Assembly,
discussed, and adopted.

24. The Report contains various
findings which the Applicant alleges are both inaccurate and highly
prejudicial to him.

25. The 2nd Respondent admits that the
Report was critical of the conduct of the applicant and made findings
regarding ‘breaches
of various individual’s obligations
relating to corporate governance in BDC”.

26. The following are examples of such
findings:

26.1 “It is this Committee
inescapable conclusion that the actions of certain of BDCManagement
officials, defied all commercial
prudence, and on aproject whose
capitalization was near half a billion Pula, their actions
approximated either to a grand leap
of faith, or more likely, sheer
recklessness …,

26.2 “However, notwithstanding
the non-compliance with the BDCresolution and contract term, the BDC
Management proceeds to
execute contract disbursement, in the process
unduly exposingBDC financially. Their actions are a flagrant breach
of their fiduciary
duty of care to BDC, and, the government and the
people of Botswana,

26.3 ‘BDC was weak or negligent
in enforcing contract provisions’,

26.4 ‘There appears to be no
clear authority from the BDC Board, or more particularly from its
18th June, 2007, resolution,
for the use of the BDC account in the
manner it was used. It is this Committee’s recommendation,
that the Directorate on
Economic Crime and Corruption (DCEC),
institute investigations into the circumstances surrounding this
transaction, and establish
whether they raise the ‘spectre of
criminal responsibility in respect of persons directly involved in
its execution’,

26.5 ‘The lawfulness of this
guarantee signed by BDC Management is cast in doubt …’.

26.6 ‘Ministerial interference
resulting in the dismissal of three members of the BDC Board by the
Applicant on the eve of
the board’s conduct of disciplinary
proceedings against members of BDCmanagement, has compromised and
impeded the corporate
oversight function of the Board’.

27. The Applicant complains that some
of the findings impute impropriety to him.

28. The press reported on the Report
and its findings regarding the Applicant. One newspaper; for
example, did so in a front page
story with the heading ‘The
Applicant: Fingerprints on the till?’

28.1 The main front page of a prominent
Sunday newspaper article had the heading ‘Inside how the
Applicant helped Chinese
glasscompany to get away with fraud”.

28.2 Sub-headings suggestedthe
Applicant led BDC decision to partner with Chinese company though he
was aware the company was a
fraud’. The Applicant hid vital
information from the board’, and ‘Report says decision by
the Applicant and
his management to keep information away from the
board was deliberate’.

29. On the evidence placed before the
court, (and indeed from reading the Committee’s Report), it is
clear that whilst a number
of adverse findings related to the BDC
management, as a collective, one need not be a rocket scientist to
discern that the Applicant
as the Managing Director of BDC was blamed
for wrongdoing or impropriety and this much the newspapers did not
miss.

30. The findings of the Parliamentary
Select Committee as contained in their Report quite plainly reflected
negatively on the Applicant,
who was BDC’s Managing Director
until 31st October, 2008. They suggested that he was a party to or
complicit in negligence,
recklessness, and even criminal conduct in
relation to the glass project.

31. The findings of the Committee
indicated that the Minister intervened in the activities of the board
when it instituted disciplinary
proceedings against members of BDC
management, suggesting some kind of impropriety in doing so, such as
covering things up.

Summary of the Applicant’s case

32. The Applicant’s case is that
the review proceedings concerns the legality of the proceedings of
the Select Committee and
the findings in the report on the basis that
they did not comply with the requirements of natural justice and
procedural fairness
and further that they intruded on functions
falling beyond the mandate of parliament.

33. The Applicant contends that he was
not given a proper opportunity to assess the evidence as a whole, or
to explain or counter
it; and that he was not given proper access to
the evidence of others.

34. The Applicant submits that the
proceedings and findings of the Select Committee in so far as they
damaged his good name and
reputation are amenable to judicial review.

35. The Applicant contends in effect
that although he was a witness, he in practice occupied a status akin
to that of an accused
and that it was therefore essential for the
Committee to observe the principles of natural justice.

36. The Applicant argues that where a
Report of a Committee, such as in this case, damages a person’s
reputation, the public
generally has an interest that any criticism
should be made upon a proper basis. He contends that it would be
contrary to public
interest if the courts were not prepared to
protect the right to reputation in such contexts.

37. The Applicant contends further that
a witness in an inquiry that implicates him in wrong doing is
entitled to particulars of
what, if any, misconduct is alleged
against him, in advance of the conclusion of the hearings, so that he
may meaningfully respond.

38. The Applicant argues that it would
be wrong for the court to endorse the notion that judicial or
quasi-judicial enquiries are
ordeals by ambush and that they are at
liberty to ride rough shod over individual liberties/or reputation

39. The Applicant contends further that
the fact that the Committee is a parliamentary Committee does not
absolve it from observing
the principles of natural justice. He says
that Parliament and its Committees are bound by the rule of law.

40. According to the Applicant, the
fundamental principle, deriving from the rule of law itself, is that,
the exercise of all public
power, be it legislative, executive or
administrative, is only legitimate when lawful.

41. The particular grounds upon which
the Applicant alleges that the Committee’s proceedings are
reviewable are:

41.1 The breaches of procedural
fairness and natural justice during the course of the Committee
hearings in respect of the Applicant,
which taint the findings
reached regarding the Applicant; and

41.2 that the Report contained findings
in respect of matters falling outside the functions of Parliament and
its Committees, in
disregard to the doctrine of separation of powers,
and therefore beyond its lawful remit.

42. The Applicant argues that Section 3
of the Powers and Privilege Acts does not oust the court’s
jurisdiction.

43. The Applicant submits that Section
3 of the National Assemblies Powers and Privileges Act Cap: 02:05
confirms the privilege
of Parliament in relation to the discharge of
its parliamentary functions.

44. The Applicant contends further that
parliamentary privilege protects members of the National Assembly
from defamation action
in relation to statements made during the
course of a parliamentary debate.

45. According to the Applicant, neither
section 3 nor Parliament’s traditional or customary privileges
excludes the jurisdiction
of the courts to consider and rule on the
proceedings of Parliament or its committees where such proceedings
are challenged on
the grounds of a breach of natural justice and
where the rights of third parties are infringed.

46. The Applicant submits further that
Parliament is bound by the rule of law, and that it is subjected to
the jurisdiction of the
courts, to adjudicate in a case where it is
alleged that Parliament has infringed the rule of law, or principles
of natural justice.

47. It is also the Applicant’s
contention that the Committee made findings falling outside the scope
of Parliament’s
functions. Consequently, the Applicant
contends that privilege cannot be claimed in respect to matters
falling outside the scope
of Parliamentary functions.

48. The Applicant submitted that the
review proceedings are not time barred and that in the event the
court finds that same were
filed late it must allow the proceedings
because he has established good cause to bring the review proceedings
beyond the required
four months period.

49. Furthermore, the Applicant argues
that:

49.1 First, Order 61.8 does not apply
to prayers 3 and 6 of the notice of motion. Those prayers are for
declaratory and striking-out-relief.
They do not in any sense
involve the review decision.

49.2 Second, and more fundamentally,
and in relation to prayers 3, 4, 5 and 6,the Applicant contends that
his challenge is not brought
as a review of administrative action.
The provisions of Order 61.8 therefore do not apply. According to
the Applicant the primary
challenge is based on the principles of
natural justice and the rule of law and Order 61.8 is therefore
inapplicable.

49.3 Third, the Applicant argues that
he has fully explained the timing of his application, and there can
be no legitimate complaint
about such timing. He avers that if there
were any delay in bringing this application for relief relating to
the proceedings of
the Committee and the Committee’s adoption
of the Report, such is fully explained on thefacts by:

i) the chain of correspondence between
the Applicant’s attorneys and the Respondents, primarily the
third Respondent, in which
the third Respondent repeatedly deferred
giving a substantive response to the Applicant demand, and

ii) the way in which the Applicant’s
demand was overtaken by events, specifically the introduction of the
Report to the National
Assembly on 25 July 2013.

Summary of the Respondents’ case

50. Firstly, Respondents contend that
the review proceedings are time barred by virtue of having been
brought outside the four (4)
months required by Order 61.8 of the
High Court rules.

51. Secondly, the Respondents argue
that Section 3 of the National Assembly (Powers and Privileges) Act
ousts the jurisdiction of
the Court to entertain this application.

52. Thirdly, the Respondent’s
submit that an inquiry before a Select Committee of Parliament does
not constitute the exercise
of an administrative or judicial
function, but the exercise of an investigative function afforded to
the legislature, where members
and witnesses alike are free to
express their opinion and state facts without fear of civil or
criminal prosecution, or being subjected
to cross-examination or
other procedures associated with judicial or administrative
proceedings.

53. The Respondents also contend that
the rights, which the Applicant asserts in these proceedings, are
typical rights afforded
to a person accused in criminal proceedings
or charged before an administrative tribunal.

54. It is further the contention of the
Respondents that the Special Select Committee would have contravened
the Constitution and
the Powers and Privileges Act and the Standing
Orders had they offered the rights of an accused person in the
proceedings before
it.

55. In elaboration, the Respondent
argue that awitness does not have the right, if a question is put to
him in a court of law, which
may reveal misconduct on his part, to be
appraised of the source of the information or cross-examine his
accuser. His right to
remain silent if a question is put to him
which may incriminate him, is protected by section 14 (1) and
counterbalanced by the
cloak of privilege afforded him in terms of
section 14 (4) of the Powers and Privileges Act.

56. The Respondents also argue that the
rights which the Applicant asserts in these proceedings, are not the
rights typically afforded
to a witness in any proceedings, be they
before an investigative Committee or even a court of law.

57. The Respondents also argue that
theproceedings before the Special Select Committee do not constitute
administrative proceedings,
but proceeding of the legislature, which,
in terms of Section 76 (1) of the Constitution, the National
Assembly, or in this case
a Select Committee, appointed from its
ranks, may regulate its own procedure.

58. According to the Respondents,the
proceedings before the Select Committee do not constitute
administrative or judicial proceedings
except in the case of perjury
or subornation of perjury or defeating or obstructing the course of
justice.

59. Furthermore, the Respondents argue
that like the questions put to a witness in proceedings of this
nature, any answer given
by any person to such question ‘shall
not be admissible in evidence against him in any civil or criminal
proceedings, i.e.
is covered by the privilege of freedom of speech
afforded to members of Parliament and witnesses alike’

60. The Respondents place reliance on
Section 16 of the Act which provides:

“Where at any time, any question
arises in the assembly or in a Committee in regard to-

a) The right or power of the assembly
or Committee to hear, admit or receive oral evidence;

b) …

c) …

that question shall subject to the
preceding provisions of this Act, and except insofar as express
provision is made in those provisions
for the determination of that
question, be determined in accordance with the usage and practice of
the House of Commons of the
United Kingdom.”

Issue(s) before the court

61. In my mind, there are four(4)
questions that fall for determination in this matter.

62. The first question is whether the
review proceedings are time barred by virtue of same having been
brought outside the four
(4) months period as required by the Order
61.8 of this Court?

63. The second question is whether
Section 3 of National Assembly (Powers and Privileges) Act ousts the
jurisdiction of the court
to entertain this review application?

64. The third question is whether the
proceedings and/or adoption of the report of the Parliamentary Select
Committee is liable
to be reviewed or set aside on account that its
proceedings and adoption of its Report were done in violation of the
audi alteram
partem rule.

65. Fourthly, the other subsidiary
question(s) relate to whether the Select Committee in recommending
investigations and/or possible
prosecution acted ultra viresits
powers?

On whether the review proceedings are
time barred in terms of Order 61.8 of the high court rules

66. In theirpapers, the Respondents
contend that the review proceedings have been brought outside the
time frame of four (4) months
permitted by Orders 61.8. The
Respondents in their heads of arguments do not take up this point
andin his oral submissions, Mr
Ellis, learned counsel for the
Respondents, did not take it up either.

67. In my mind, the point was for all
intents and purposes abandoned. However, even if this was not so, I
would have been inclined
to allow the proceedings, notwithstanding
that they were brought beyond the four (4) months required by Order
61.8, primarily for
two reasons: firstly, that having regard to the
novel and grave issues raised in this matter, it would be unjust to
dispose same
on technicalities. Secondly, having regard to the
challenge directed at the adoption of the Report by the National
Assembly it
would seem that the four months period was not exceeded
and if it was, it was bya few days. I say so because the report of
the
Committee was adopted by the National Assembly on the 25th of
July 2013 and these proceedings were registered with this court on

the 25th of November, 2013.

68. In the premises, I hold that
justice is better served by allowing the matter to proceed.

69. It is my considered view that
justiceshould not be easily held hostage to technicalities. This is
not a case of “three
strikes and you are out.” As it is
often said the rules are made for the court and the court is not made
for the rules.

On whether the proceedings of the
Select Committee of the National Assembly and subsequent adoption of
its report by the National
Assembly is liable to be reviewed

70. The next question that needs to be
deliberated is whether Section 3 of the National Assembly (Powers and
Privileges) Act (“the
Act”)Cap 02:05 ousts the
jurisdiction of the court to entertain the application brought.

71. The Respondents contend that the
proceedings before the Special Select Committee and the National
Assembly are protected from
judicial scrutiny by parliamentary
privilege, as stipulated by the Constitution of Botswana and the Act.

72. It is important, in answering the
above question, and in order to provide contextual background, to
first have regard to the
theory of parliamentary privilege.

An Overview of the Theory of
Parliamentary Privilege

73. Parliamentary privilege is an
essential part of any democratic state. It is true that in Botswana,
the National Assembly is
obliged to seek guidance, whenever any
question arise in the assembly or Committee on the power of the
assembly or Committee to
hear evidence and other matters incidental
thereto, from the usage and practice of the House of Commons of the
United Kingdom.
However, in the context of Botswana, it is
important, in order to properly understand the concept of
parliamentary privilege,
to properly characterise the system of
government. Botswana’s system of government is a hybrid of
Westminster and presidential
system of government.

74. Botswana, unlike the United
Kingdom, is not a parliamentary democracy, but a constitutional
democracy. Under a constitutional
democracy,the National Assembly is
supreme only in the exercise of legislative powers. Parliament is
not permitted to pass any
law that is ultra vires the provisions of
the Constitution.

75. In Botswana courts of competent
jurisdiction are empowered to strike down any legislation passed by
parliament which is ultra
vires the Constitution. (See Petrus v the
State 1982 BLR 14)

76. It is generally accepted that the
concept of parliamentary privilege, in large measure,is a feature or
innovation of Westminster
form of government. Its purpose is to
ensure that members of parliament are able to speak freely in debates
and protects parliament
internal affairs from interference from the
Courts.

77. Parliamentary privilege is not and
cannot be a blanket license for parliament to do as it pleases
irrespective of whether such
conduct is lawful or not.Whatever
Parliament does, is necessarily constrained not only by the express
provisions of the Constitution
but its spirit and values. Much as
parliamentary privilege cannot be used to shield criminal activity,
as it happened in the United
Kingdom (when some Members of Parliament
attempted to invoke the privilege to prevent criminal prosecution for
offences related
to parliamentary expenses) it cannot be used to
undertake or further unlawful acts.

78. On close scrutiny, parliamentary
privilege is intended to enhance the core mandate of Parliament by
ensuring, firstly, that
if a Member of Parliament speaking in
Parliament, believes a fact or opinion needs to be raised in a
debate, he or she can do so
without being deterred from raising it by
fear of criminal or civil liability. The golden thread that runs
through the concept
of parliamentary privilege is that the courts
will refrain from interfering with Parliament’s internal
affairs, if doing
so will impede its ability to conduct its core
business.

79. Secondly, parliamentary privilege
also recognises that Parliament has a right to regulate its own
proceedings. The right of
Parliament to regulate its internal
affairs or proceedings is often referred to as exclusive
cognisance.Parliamentary proceedings
are generally understood to
refer to what is said or done in the formal proceedings of Parliament
or its Committees.

80. Parliamentary Select Committees are
an important feature of modern parliamentary work. They provide a
workable forum in which
members of parliament undertake detailed
scrutiny of government policy and hold government to account for its
decisions.

81. In the United Kingdom, and indeed
in other Commonwealth countries, the boundaries of parliamentary
privileges have largely been
determined by the courts. There are
many cases across the globe, which I discuss in the body of this
judgment, that offer useful
insight on how the courts have dealt with
the tension between parliamentary privilege and respect for
individual rights. This
court has in the past indicated that
parliamentary privilege is not absolute (see Botswana Democratic
Party and Attorney General
Chambers v Umbrella Democratic Change and
Botswana Congress Party CACGB-114-14 (2014) BWCA, and the cases
cites, therein)

82. In law, context is important: the
aforesaid overview of parliamentary privilege provides the context
within which to consider
the question – whether Section 3 of
the National Assembly and Privileges Act ousts the jurisdiction of
this court to consider
this matter.

83. Section 3 of the National Assembly
(Powers and Privileges Act) provides that:

“No civil or criminal proceedings
may be instituted against any Member for words spoken before, or
written in a report to,
the Assembly or to a committee, or by reason
of any matter or thing so brought by him by petition, Bill, motion or
otherwise.”

84. Before answering the vexing
question of whether indeed the above section ousts the jurisdiction
of the court, it is imperative
to discuss or appreciate the law or
principles governing ouster clauses, including of course a discussion
of what an ouster clause
is.

85. Learned counsel for the
Respondents, Mr Ellis, has submitted before me that Section 3 of the
National Assembly Privileges Act
ousts the jurisdiction of the court
to undertake any judicial review of the matters the Applicant
complains of.

86. To resolve the ouster question,
several elements have to be considered: what is an ouster clause?
How is such a clause portrayed
in relevant comparative judicial
practice? What is the attitude of the courts to ouster clauses?

87. Ouster clauses are provisions,
usually in a statute that take away, or purport to take away the
jurisdiction of a competent
Court of law. They deny the litigant any
judicial assistance in the relevant matter, and at the same time deny
the Courts the
power to determine a matter brought before it for
determination.

88. In short, ouster clauses curtail
the jurisdiction of the Court, as the relevant matter is rendered
non-justiciable before the
Courts, The English caseof Pyx Granite
co. Ltd v. Minister of Housing [1960] AC 260 indicates that an ouster
clause connotes exclusion of the jurisdiction of the Courts, and
nothing less.

89. It seems plain to me, having regard
to the literature on ouster clauses, that ouster clauses have been
adopted for certain practical
and procedural reasons: protecting the
integrity of the relevant body, by separating it from the formal
legal process; and thereby
ensuring finality and or, preventing
unnecessary litigation, or interventionist judicial proceedings.

90. Ouster clauses generally raise the
following complex issues:

(ii) First, is the question of the
rights of citizens to access the Courts. This encompasses three
issues: Isn’t access
to the Courts an essential pre-condition
for the operation of the rule of law and consequently, shouldn’t
ouster clauses
be read down? Alternatively, if the content of the
law must be given effect, shouldn’t ouster clauses be given
effect, and
ouster clauses enforced?

(iii) Second, can the High Court’s
supervisory jurisdiction under Section 95 of the Constitution be
abrogated? How should
the High Court reconcile an ouster clause with
its supervisory jurisdiction? Can an ouster clause be interpreted
consistently with
the Constitution?

(iv) Thirdly, shouldn’t ouster
clauses be enforced, since Parliament is democratically elected
(representative democracy),
and is in a more legitimate position to
prescribe legal constraints?

(v) Lastly, shouldn’t the
separation of powers be adhered to? Doesn’t the ouster clause
give Parliament the power to
decide on the legal limits of its power?
Isn’t this conferring adjudicative authority upon a body that
is not a Court?

91. Ouster clauses are not novel
exclusionary devices by the legislature. Their nature and impact has
been dissected and analysed
worldwide, by scholars and the Courts
alike. The comparative lesson, a recognised basis of objectivity in
ascertaining proper
directions in matters of dispute-settlement,
especially in vital spheres such as constitutional rights, should be
considered in
the instant matter.

92. There are authorities of respectful
lineage with which I am in total agreement with thatsuggests that not
every ouster clause
should be ignored. In my view, an ouster clause
may be ignored or construed strictly if there are strong and
compelling reasons.
In light of this, I am of the opinion that the
breach of fundamental human rights and breaches of natural justice
are enough to
satisfy ‘strong and compelling reasons’ and
that where such breaches are alleged and there is prima facie
evidence
of violations of fundamental human rights and breach of
principles of natural justice an ouster may be ignored.

93. In the case of Tsogang Investment
(Pty) Ltd (t/a Tsogang Supermarket v Phoenix Investment (Pty) Ltd t/a
Spar Supermarket 1989 BLR 512 (HC)this court, in judicial review
proceedings, refused to give effect to a clause that said the
Minister’s decision “shall
be final and shall not be
questioned in any court”.

94. In the Australian case, ofHockney
v. Yelland (1984) HCA, 72; (1984) 147 CLR 1243, the High Court
considered the question whether a private clause (ouster clause)
excluded the remedy of certiorari – conventional
administrative
law remedy.

95. A medical board had refused
compensation to Hockney, on the ground that he had not suffered an
injury in the sense prescribed
by the Workers Compensation Act 1916
(Crh). Section 14 of that Act provided that the determination of the
board …shall be final
and conclusive and the claimant shall have no
right to have any of those matters heard and determined by way of
appeal or otherwise
by any Court or judicial tribunal whatsoever.

96. Hockney sought certiorari to quash
the Board’s decision, on the ground that it revealed an error
of law on the face of
the record. The issue before the Court was
whether Section 14 (c) precluded the issue of writ of certiorari.

97. Gibbs CJ held that Hockney’s
right of recourse to the Court was not to be taken away except by
clear words. He observed
that simply providing for ‘final and
conclusive’ determination is not enough to exclude certiorari.
The High Court
determined that the remedy of certiorari was not
excluded but, on the facts, there was no error of law disclosed by
the decision.

98. In this case, Section 3 of the
National Assembly (Powers and Privileges) Act relied upon by the
Respondents does not use clear
and emphatic words as in the case of
Hockney. More significantly it does not exclude judicial review in
express terms.

99. It seems to me that if Section 3
had provided that no legal proceedings or judicial review shall be
brought by any person in
any court, against anything done or omitted
to be done by the National Assembly or any of its Committees, then
they would, prima
faciebe a basis to contend that the jurisdiction of
the court has been ousted.

100. In my respectful view, Parliament
cannot abrogate or curtail the Court’s constitutional function
of protecting the subject
against any violation of the Constitution,
or of any law made under the Constitution.

101. The Courts in India have
admirably, as is often the case, put the bar quite high. The Supreme
Court, in the case of State
of Andhra Pradesh v. Manjeti LaxmitKantha
Rao& Others(2000) 3 SCC 689considered that it was necessary to
ascertain legislative intent to exclude jurisdiction, whether this
was explicit or arose by necessary
implication. The Court must first
try to determine the precise reasons for the exclusion of civil
Courts, and consider the underlying
justification.

102. The Court held that once a Court
satisfies itself of the justification, it should determine whether
the statute, which bars
such jurisdiction provides a suitable remedy.

103. An alternative remedy, in this
respect, must be capable of performing the functions that would have
been performed by the civil
Court, in the absence of such exclusion,
and must incorporate such order as the civil Court, in like
circumstances, would have
dispensed. In the absence of such
alternative mechanism, the jurisdiction of the civil Court cannot be
excluded.

104. In R v. Medical Appeal Tribunal,
ex p. Gilmore[1957] 1 QB 574, the issue involved the National
Insurance (Industrial Injuries) Act 1946, under which Section 36 (3)
provided that any decision
of a claim or question “shall be
final”. On the basis of an error on the face of the record,
the applicant sought
the remedy of certiorari.

105. The court, per Denning LJ, allowed
the remedy at the Court of Appeal. He held that though the words of
the statute may have
been strong enough to exclude an appeal, they
did not prevent judicial review.

106. The Court found it to be well
settled that the remedy by certiorari is never to be taken away by
statute except by the most
clear and explicit words; and doubted that
the phrase “shall be final” was sufficient to achieve
this objective. The
Court observed that if tribunals were to exceed
their jurisdiction without any checks by the Courts, it would be the
end of the
rule of law.

107. It has been held in the leading
case of Anisminic v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 A.C. 147
that where a statutory ouster clause is invoked, Courts should
interpret it in a manner likely to preserve the jurisdiction of
the
Courts.

108. Sir Anthony Mason in his article,
“The Tension between Legislative Supremacy and Judicial Review’
(2003) 77 ALJ 803 (at page 805),in emphasising that the courts alone
have the authority to determine what the law is states that:

“(1) what Parliament enacts as
law within the limits of the powers committed to it by the
Constitution must be respected and
applied by the courts. The
responsibility of the courts to give effect to laws validly enacted
by Parliament is a central element
of the rule of law;

(2) the courts and the courts alone,
under our system of government have the jurisdiction and authority to
make an authoritative
determination of what the law is;

(3) the rule of law presupposes that
the individual has a right of access to the courts for the
determination of his or her rights;
the proposition is expressed in
the presumption that the legislature does not intend to deprive the
citizen of access to the courts,
other than to the extent expressly
stated or necessarily implied; and

(4) judicial review is the means by
which the administrative decision-maker is prevented from exceeding
the powers and functions
conferred by law, with the consequence that
individual interests are protected accordingly.”

109. The purpose of judicial review is
to ensure that the decisions made by the relevant bodies are lawful.
Consequently, should
they find that the decision made is unlawful,
Courts can set aside that decision. Judicial review, therefore, can
be said to safeguard
the rule of law, and individual rights; and
ensures that decision makers are not above the law, but have taken
responsibility for
making lawful decisions, in the knowledge that
they are reviewable. In the past, this court has held that judicial
review is useful
tool for the courts to use to control excesses in
the exercise of power by a public body (see Raphathela v Attorney
General 2003 (1) BLR 591 (HC).

110. The Courts recognise that
Parliament has a popular mandate to make laws as they find
appropriate, in the public interest, so
long as their law-making
function falls within a constitutional order in which the judiciary
is the regular custodian of the rule
of law, and of the rights and
freedoms of the individual.

111. In my respectful view, the Courts
have a duty to interpret statutes in a manner that preserves their
jurisdiction than give
it away. Where the legislature is inclined to
oust the jurisdiction of the courts, then it has an obligation to
express itself
in clear, firm and unequivocal language –
otherwise judicial interpretation is apt to take the stand that
jurisdiction lies
with the Courts.

112. It is on account of the above
authorities and or reasoning that where the ouster seeks to block a
citizen access to the Courts,
then such a clause ought to be
interpreted in a manner that safeguards the fundamental rights and
freedoms of the individual, including
access to the Courts, a
fundamental feature of the rule of law.

113. The case of Anisminic,referred to
earlier, is high water mark in English Administrative Law and indeed
in most of the common
law jurisdictions. For completeness it makes
sense therefore to consider it in some detail.

114. Anisminic Ltd was a British mining
company which had owned property in Egypt, but during the Suez Canal
crisis in 1956 the
property was taken over by Israeli troops and
£500,000 worth of damage was caused to it. It was then
sequestrated in November
1956 by the Egyptian government.

115. In 1957 the Egyptian government
authorised the sale of the property, including a substantial quantity
of manganese ore for
less than its real value to TEDO of Egypt.
Anisminic Ltd was very dissatisfied with this deal and sought to
discourage any purchases
from the stockpile of ore by former
customers. This response by the company prompted an agreement
between the Egyptian government
and Anisminic, whereby £500,000
was paid in compensation as a full settlement with the Egyptian
government.

116. The above arrangement deliberately
left open the question of compensation from other sources. In 1959,
a treaty was negotiated
between the UAR (Egypt) and the British
government which provided for £27.5 million compensation to be
paid to the UK for
any property confiscated in Egypt in 1956.
Responsibility for distributing these funds was vested in the Foreign
Compensation
Commission. Anisminic Ltd duly submitted a compensation
claim.

117. The Commission operated under the
Foreign compensation (Egypt) (Determination and Registration of
Claims) Order 1962. A claim
could be established under the order if:

a) The Applicant was the person
referred to in the relevant part of Annex E of the order as the owner
of property or their successor
in title;

b) The person referred to in the
relevant part of Annex E and any person who became successor in title
of such person on or before
28 February 1959 were British nationals
on 31 October 1956 and 28 February 1959.

118. The Commission interpreted the
order as meaning that not only the applicant had to be British but
also that is successors in
title had to be British. Such an
interpretation of the clause appeared to defeat almost any claim
since it was most unlikely that
a successor in title would be
British; and in any event, once such a deal (sale to a non-British
company) had been reached by Anisminic
(or any other company) it was
powerless to do anything about it. The Commission found that
Anisminic failed in its claim for compensation
solely on the grounds
that TEDO, its successor in title, was not a British national.
Anisminic sought a declaration that the order
had been misconstrued
by the Commission.

119. A major obstacle to overcome was
whether a statutory ouster clause could prevent the intervention of
the courts. The House
of Lords considered the meaning of the Foreign
Compensation Act 1950, s4(4), which had provided in unequivocal
language that ‘the
determination by the Commission of any
application made to them under this Act shall not be called into
question in any court of
law’.

120. It is plain that taken at face
value the above provision would appear to indicate that any
consideration in a court was excluded
by the clause, including any
action to establish that the determination was itself a nullity. The
logical consequences of this
are plain enough, i.e., that a decision
may well have been a nullity but there was no way of knowing this
because the statutory
exclusion clause prevented the courts from
reviewing the matter. However, Lord Reid asked, in his judgment:

“Does such a provision require
the court to treat that order as a valid order? It is a well
established principle that a
provision ousting the ordinary
jurisdiction of the court must be construed strictly-meaning, I
think, that, if such a provision
is reasonably capable of having two
meanings, that meaning shall be taken which preserves the ordinary
jurisdiction of the court
…No case has been cited in which any
other form of words limiting the jurisdiction of the court has been
held to protect a nullity.”(see
Express and Implied limits on
Judicial Reviews: Ouster and Time Limits Clauses, The Prerogative
Power, Public Interest Immunity,
Page 96)

121. As an ultra vires determination
was regarded as not being a determination at all, the decision was a
nullity which could have
no effect. Their Lordships unanimously held
that such exclusion clauses only protected determinations which were
intra vires.

122. In the case ofR v Secretary of
State for the Home Department, ex p Fayed [1996] EWCA Civ 946; [1997] 1 ALL ER 228, where
the court applied and followed Anisminic, the Fayed brothers appealed
against a decision by the Home Secretary who had refused
to grant
naturalisation. In order to provide a remedy, the court had to
override s 44(2) of the British Nationality Act 1981,
which states
that ‘the Secretary of State …shall not be required to assign
any reason for the grant or refusal of any application
under this
Act… and the decision of the Secretary of State… on any such
decision shall not be subject to appeal to, or review
in, any court’.
It was held that this clause did not oust jurisdiction and prevent
the court from reviewing the decision
on procedural grounds.

123. Restrictive interpretation of
ouster clauses rests on solid logic. Blocking access to the Courts
serves no public interest;
exclusion of the Courts is a clear signal
to decision-makers that they may operate without fear of intervention
by the courts after
all. Access to justice is a hallmark and
essential attribute of the rule of law.

124. It must be emphatically stated
that, Courts are aware of their constitutional position, and
particularly of the doctrine of
the rule of law. The result is that
they have been unwilling to permit any subordinate authority to
obtain uncontrollable power
which would exempt public authorities, or
other bodies, from the jurisdiction of the courts, as this would be,
theoretically, tantamount
to opening the door to potentially
dictatorial power.

125. The Courts in Malawi have dealt
with issues concerning limitation to the scope of Parliamentary
privilege. The Courts have
held that Parliament must act within the
confines of the Constitution and where it does not it can be
challenged before the courts.

126. In the case of Nangwale v Speaker
of the National Assembly and Another [2005] MWHC 80the Court observed
that: “while emphasis is on separate status, the dominant
‘institution’ to which all the three
organs are
subservient is the Constitution. The Executive must promote the
principles of the Constitution, the Legislature must
further the
values of the Constitution and the Judiciary must protect and enforce
the Constitution. We do not think therefore that
there is any doubt
that Parliament in Malawi must act within the confines of the
Constitution.”

127. The matter of the scope of
parliamentary privilege has not escaped the attention of scholars.

128. After tracing the dynamic
evolution of the privilege as a means of preserving legislative
independence, authors Reinstein and
Silverglate conclude that a
privilege clause’s scope must encompass all legitimate contemporary
functions of a legislature in a
system embracing separation of
powers.

129. The authors contend that such
functional considerations indicate that the clause should be given a
narrow scope in private
civil suits brought against congressmen or
congressional committees, especially those involving constitutional
rights. (See Reinstein
RJ & Silverglate, HA (1973) “Legislative
Privilege and the Separation of Powers” 86 (7) Harvard Law
Review 1113 – 1182.)

130. It is generally acknowledged by
constitutional scholars that the purpose of parliamentary privilege
is to ensure that members
of Parliament speak freely during debates
of Parliament or its Committees without fear of being sued.

131. It is a basic principle that
parliamentary privilege is the privilege of the House as a whole and
not of the individual memberand
that the protection afforded by
privilege is no more than what Parliament needs to carry out its
functions effectively.

132. Parliamentary privilege does not
protect the activities of members simply because they take place
within the precincts of Parliament.
Privilege is intended to protect
each House in respect of the conduct of its internal affairs.

133. The case ofR v Chaytor and
Others(2010) UKSC52 deals with the extent of parliamentary privilege.
In this case, each of the
appellants was committed for trial at the
Crown Court on charges of false accounting. The charges related to
claims in respect
of parliamentary expenses and were alleged to have
been committed when each defendant was a serving member of the House
of Commons.

134. The Chaytor case must be
distinguished on the facts since it relates to members of Parliament
who engaged in illegal activity
(submitting false claims for
reimbursement) and then sought to rely upon the immunities of
Parliamentary privilege to evade criminal
prosecution. Each claimed
that criminal proceedings cannot be brought against them because they
infringe parliamentary privilege.
However, the Court adopted the view
that the extent of parliamentary privilege is ultimately a matter for
the court to determine.

135. On the question of privilege, Lord
Phillips held that the decision as to what constitutes a ‘proceeding
in Parliament’,
and therefore what is or is not admissible as
evidence, is ultimately a matter for the court, not the House (See
Chaytor at para15.)

136. After referring to comparative
case law the Court observed that:

“the jurisprudence to which I
have referred is sparse and does not bear directly on the facts of
these appeals. It supports
the proposition, however, that the
principal matter to which article 9 (on privilege) is directed is
freedom of speech and debate
in the Houses of Parliament and in
parliamentary committees. This is where the core or essential
business of Parliament takes place.”(See
Chaytor at para 47)

137. Having regard to the above
authorities and applying the “necessary connection” test
in the present matter, the
pertinent question to be asked is whether
the matter is justiciable, in light of the potential infringement on
the rights asserted
by the Applicantand whether the determination
will likely to impact, adversely, on the core or essential business
of Parliament?

138. It is suggested that further
guidance on this score can be found in the Irish decision in the
matter of Callely v Moylan and
Others (2011) IEHC 2.Ireland is a
constitutional republic with a parliamentary system of government.
The Oireachtas is the bicameral national Parliament composed
of the
President of Ireland and the two houses of the Oireachtas: Seanad
Eireann (Senate ) and Dail Eireann (House of Representatives)

139. The factual background of the
abovecase is closer to the material facts in the present matter: the
Applicant sought, by way
of judicial review, orders of certiorari,
quashing the respondents’ ‘Report of the Results of an
Investigation into
Complaints Concerning Senator Ivor Callely’
and quashing a resolution of Seanad Éireann (Senate) adopted
by Seanad
Éireann, to the effect that the applicant be
censured and be suspended from service of the House for a period of
twenty
days on which the House should sit, and that such annual sum
by way of salary payable to the applicant be withheld for that
period,
and that the period of suspension commence forthwith.

140. This was the first time that a
Member of the Oireachtas (Parliament) went to the High Court to
challenge a decision of a Committee
of a House of the Oireachtas or a
resolution of a House of the Oireachtas imposing a disciplinary
sanction on such Member, relating
to that Member’s membership
of a House of the Oireachtas.

141. The Respondents, in their
statement of opposition, raised a preliminary objection to the court
hearing and making any determination
in the judicial review
application on the grounds that the Applicant’s challenge, both
to the resolution of the Seanad and
the report of the Respondents,
was not cognisable by the court; that the actions of the Respondents
in adopting the report and
of Seanad Éireann in passing the
resolution, were not amenable to judicial review by virtue of the
doctrine of the separation
of powers and, in particular, by virtue of
Article 15.10 of the Constitution.

142. The Respondents further submitted
that Seanad Éireann and its committees, including the
Respondents, are masters of
their own deliberations and that the
court can exercise no function with regard to their deliberations.
They also pleaded that
the determination of whether the Applicant has
done a specified act within the meaning of s. 4(1)(a) of the
Standards in Public
Office Act 2001 (“the Act of 2001”)
is peculiarly within the discretion of the Members of Seanad Éireann
and
is not a determination which is capable of review by reference to
objective legal standards and is, accordingly, not amenable to

judicial review. (See para 24).

143. In the final analysis, the court
held that the basic test for allowing judicial review of “political”
matters is
whether the action or inaction of the political organs of
State touches upon citizens’ constitutional rights. The Callely

inquiry was reviewable notwithstanding the Separation of Powers
because it touched upon the Senator’s constitutional right
to
protection of his good name. To find otherwise, O’Neill J
asserted, would also have been to construct the Separation of
Powers
in such a manner as to deny Callely the right of access to the Courts
as well as his right to fair procedures.

144. In the course of its judgment, the
Court observed that:

“What is at stake here is not the
proper unfettered functioning of the legitimate activity of the
Respondents, but rather
the constitutional rights of the Applicant.
The correct observance of the Applicants constitutional rights would
not impede the
proper discharge by the Respondents of their
functions. On the other hand, the denial of access to the Courts to
the Applicant,
undoubtedly degrades the constitutional protection he
would otherwise enjoy.(My emphasis)It would seem to me that the
boundary
between the exclusive roles of the Oireachtas, on the one
hand, and the High Court on the other hand, appropriately respecting
the separation of powers principle, does not exclude access to the
courts where a Member of the Oireachtas, in circumstances such
as
those of the Applicant in this case, seeks the protection of the
Constitution in vindicating his constitutional right to his
good name
and to natural justice and fair procedures. (See Callely at paras 44
and 47.)

145. In the course of its judgment the
court concluded that:

“a consideration of the subject
matter of this investigation, …, lead in my view … to a
conclusion that investigations
of this type are not within the
exclusive realm of the Oireachtas, so as to oust the jurisdiction of
the Courts under Art 15.10.”
(See Callely at para 70)

146. In the case of Ardagh and Others
v. Maguire and Others[2002] IESC 21 (11th April, 2002),the Court in
deliberating on parliamentary
immunities and privileges, (per Keane
CJ) observed that:

“Different considerations apply,
however, where, as here, the Oireachtas purports to establish a
Committee empowered to inquire
and make findings on matters which may
unarguably affect the good name and reputations of citizens who are
not members of either
House. An examination by the courts of the
manner in which such an inquiry is established in no way trespasses
on the exclusive
role of the Oireachtas in legislation.”(My
emphasis)“Nor does it in any way qualify or dilute the
exclusive role of
the Oireachtas in regulating its own affairs.”
(See para 239-240)

147. According to the Supreme Court of
New Zealand in Attorney General and Lindsay Gow v Erin Leigh [2011]
NZSC 106 in a judgment delivered by Tipping J:

“where the claim for absolute
privilege would result, if successful, in depriving citizens of their
common law rights, the
courts will be astute to ensure that the
claimed absolute privilege is truly necessary for the proper and
effective functioning
of Parliament. …Absolute privilege exists
when, without it, Parliament and its individual members could not
discharge their functions.”

148. In light of the foregoing, with
particular emphasis being placed upon the balancing between
individual rights and parliamentary
privilege as spelt out by O’Neill
J in Callely,the correct observance of the Applicant’s common
law/ constitutional
rights would not, in my view, impede the proper
discharge by the Respondents of their functions, whilst on the other
hand, the
denial to access by the Courts to the Applicant,
undoubtedly degrades the constitutional protection he would otherwise
enjoy. In
the premises it is my considered view that this matter is
justiciable. The justiciability does not dilute or impair the
exclusive
role of the National Assembly, in regulating its affairs,
as espoused by Section 76 (i) of the Constitution. In my mind
Parliament’s
power to regulate its own procedures is made
subject to the Constitution.

149. Furthermore, it is my respectful
view that the process of scrutinising the implementation of
Parliamentary decisions, such
as the manner in which the Select
Committee conducted its inquiry into BDC (and more specifically
whether it complied with the
rules of natural justice in so doing)
does not impinge upon the ability of Parliament to conduct its core
business.

150. Whilst I accept that the courts
should not readily trespass into the province of Parliament, this
court should be extremely
careful that it does not interpret the
separation of powers in such a manner as to unduly deny an individual
access to the courts
and abdicate its role as the guardian of the
rights of all individuals.

151. Many of us in the service of the
law are familiar with the fact that our jurisprudence drips with
phrases such as, “the
court will not interfere with the
internal operations of an institution”, that it will not
“substitute its judgment”
for that of another decision
maker. These phrases are an articulation of the principle of
deference, which in essence means judicial
restraint. In a
Constitutional democracy, such as we have in Botswana, characterised
as it is by loose separation of powers, deference
is often necessary.
However, deference, if not properly exercised, may result in
fundamental rights of individuals being curtailed
by the bureaucratic
state and its agencies, resulting in judicial review, an instrument
devised to ensure legality and the rule
of law being blunted and
rendered in effectual. Speaking for myself, judicial review is a
necessary check on the decisions of
the bureaucratic state and its
agencies to ensure that they are lawful.

152. In my view, to uphold the
Respondents’ contention that seeks to block the Applicant’s
access to court, undoubtedly
degrades Applicant’s access to the
courts and the rule of law. Parliament like any other entity or
individual in this country
is subject to the laws of the land and it
is notat liberty to unduly and unjustifiably ride rough shod over the
rights of individuals
as it pleases.

153. The Applicant has both
constitutional and common law rights to his good name and reputation
which the court is duty bound to
protect against whosoever – and such
protection is not possible if the court’s jurisdiction is
denied, or the courts develop
cold feet when they ought to do what
the law requires, without fear or favour.

154. In this case no attempt was made
by the Respondents to persuade the court of the underlying reasons or
justification for seeking
to oust the jurisdiction of courts. In my
view, no such reasons or justification exists.

155. In the final analysis, it is my
conclusion, for the reasons advanced above, that Section 3 of the
National Assembly (Powers
and Privilege) Act does not oust the
jurisdiction of this Court and that this Court’s scrutiny of
whether the proceedings
of the Select Committee and the adoption of
the Report by Parliament was lawful or not does not impugn upon the
ability of Parliament
to conduct its core business.

156. In my respectful view, Section 3
has a limited and specific scope and purpose. It confirms the
privilege of Parliament in
relation to the discharge of its
parliamentary functions. For instance,it protects members of the
National Assembly from defamation
actions in relation to statements
made during the course of parliamentary debate.

157. In my considered view, neither
Section 3 nor Parliament’s traditional or customary privileges
exclude the jurisdiction
of the courts to consider and rule on the
proceedings of Parliament or its committees where such proceeding are
challenged on the
grounds of a breach of natural justice and where
the rights of individuals and orthird parties are infringed.
Parliament is bound
by the rule of law, and the jurisdiction of the
courts to adjudicate in a case where it is alleged that Parliament
has infringed
the rule of law has not been ousted. It has been
emphasized in a number of cases that came before this court that
parliamentary
privilege is not absolute. (See Botswana Democratic
Party and Attorney General Chambers v Umbrella Democratic Change and
Botswana
Congress Party CACGB-114-14 (2014) BWCA and Mzwinila v
Attorney General 2003 (I) BLR 554 (HC)).

158. In my mind, it cannot be credibly
argued that the observance of a citizen’saccess to the courts
to vindicate his name
would impede the proper discharge of Parliament
of its functions.

159. The courts are the proper
constitutional forum for citizens to vindicate their constitutional
rights. It can therefore not
be credibly contendedthat a court that
entertains such a complaint or grievance offends the doctrine of
separation of powers.
Neither can it be credibly contended that
judicial scrutiny of the manner in which the Select Committee of
Parliament conducted
the inquiry, trespasses on the exclusive role of
Parliament in law making – which as I earlier indicatedis its
core mandate.

160. Where a defence of parliamentary
privilege is raised, as in this case, the court would only uphold it
if the language that
it is claimed excluded judicial review in
unequivocal and firm,and such exclusion is truly necessary for the
proper functioning
of Parliament – bearing in mind that the
courts are traditionally the guardians of individual’s
fundamental rights.
No such language is used in Section 3 of the
National Assembly Powers and Privilege Act.

161. It is also settled rule of
constitutional law in Botswana that legislative provisions must be
interpreted in a manner that
is consistent with the Constitution.

162. Having regard to the above rule, I
would be loath to give Section 3 of the National Assembly Powers and
Privileges Act an interpretation
that blocks an individual access to
the courts.

163. The Constitutionof Zimbabwe and
South Africa have provisions relating to parliamentary privileges
that are similar to the one
in Section 76 (1) of the Constitution and
Section 3 of the National Assembly Powers and Privileges Act.In
Oriani-Ambrosini MP v
Sisulu, MP Speaker of the National
Assembly[2012] ZACC 27, the Constitutional Court of South Africa
reviewed the constitutionality
of a rule of procedure which had been
adopted by the National Assembly while in Jonathan Nathaniel Moyo and
Others v Zvoma and
Another [2011] ZWSC 1, the Supreme Court of Appeal
of Zimbabwe reviewed the legality of the election of the Speaker of
the National Assembly. Although
in both cases the courts were dealing
with matters different from what has been brought before this court,
the principle demonstrated
is the same and that principle is that the
judiciary is competent to scrutinize parliamentary procedures but
such scrutiny should
be confined to reviewing the constitutionality
and or legality and nothing more.

164. In the final analysis, I have
weighed Section 3 of the National Assembly Powers and Privileges Act
in the balance, as I ought
to, and found it wanting. It does not
oust the jurisdiction of this court. The exclusion contended for is
not necessary for the
proper functioning of Parliament.

165. Having found that this Court has
jurisdiction to entertain this matter, I now consider whether the
Select Committee in its
proceedings and/or Parliament in adopting the
Report violated the audi alteram partem rule rendering the
proceedings and/or the
adoption of the Report a nullity in law.

The Audi Alteram Partem Rule

166. Megarry J once said, in the case
of John V Rees 1970cth 345, 402, that:

“the path of the law is stream
with examples of open and shut cases which, somehow, were not; of
unanswerable charges which,
in the event, were completely answered;
of inexplicable conduct which was fully explained; of fixed and
unalterable determinations
that, by discussion, suffered a change.”

167. The above timeless and poignant
remarks are always worth considering, by decision makers, or
Investigating Committees, because
they underscored the importance of
keeping an open mind and hearing the other side.

168. Commissions of inquiry similar to
the Parliamentary Select Commission are the standard device for
giving a fair hearing to
individuals who are the subjects of
investigation before recommendations are made to the person or body
that has appointed the
commission. Generally, the purpose of
commissions is directed towards making recommendations. Although the
main object of commissions
of inquiry is to make recommendations,
their functioning has given rise to many complaints.

169. In a number of dicisions in South
Africa, including in such cases as South African Football Union v
President of South Africa
1998 (10) BCLR 1256 and the South African
Roads Board v Johannesburg City Council 1991 (4) I (A) the view was
expressed that the audi alteram partem
ruleshould not necessarily
depend on whether proceedings were administrative, quasi-judicial or
judicial.

170. In Du Preez v Truth and
Reconciliation Commission [1997] ZASCA 2; 1997 (3) SA 204, the court held that the
Commission was under a duty to act fairly towards those implicated by
the information received during
the course of its investigations or
hearings.

171. The court indicated that it was
instructive that the Committee’s findings in this regard and
its report to the Commission
could accuse or condemn persons in the
position of the Appellants. The court also noted that, subject to
the granting of amnesty,
the ultimate result could be criminal or
civil proceedings against such persons. The court noted that the
whole process was potentially
prejudicial to them and their rights of
personality. They had to be treated fairly. Procedural fairness
meant they had to be
informed of the substance of the allegations
against them, with sufficient detail to know what the case was all
about.

172. In the case ofSARFU, cited above,
the question was whether the President, in appointing the Commission,
acted in accordance
with the principles and procedures which in that
particular situation or set of circumstances were right and just and
fair. Accordingly,
the principle of natural justice should have been
enforced by the court as a matter of policy irrespective of the
merits of the
case.

173. The Commission’s emphasized
that the fact that a Commission is an advisory body does not, detract
from the fact that
it is likely in the ordinary course of events, to
make findings would cause prejudice to SARFU, and its officials.

174. A basic rule of fairness is that a
person who will be adversely affected by an act or a decision of the
administration or authority
shall be granted a hearing before he
suffers detriment. (See De Smith, SA (1955) “The right to a
hearing in English Administrative
Law” 68(4) Harvard Law Review
569-599, 569.)

175. Peach sums up the audirule as
follows:

“The audi alteram partem rule
implies that a person must be given the opportunity to argue his
case. This applies not only
to formal administrative enquiries or
hearings, but also to any prior proceedings that could lead to an
infringement of existing
rights, privileges and freedoms, and implies
that potentially prejudicial facts and considerations must be
communicated to the
person who may be affected by the adverse
decision by the decision-maker, to enable him to rebut the
allegations. This condition
will be satisfied if the material content
of the prejudicial facts, information or considerations has been
revealed to the interested
party.” (See Peach, VL (2003) “The
application of the audi alteram partem rule to the proceedings of
commissions of
inquiry” Thesis (LL.M. (Public Law))—North-West
University, Potchefstroom Campus (Accessed at
http://hdl.handle.net/10394/58),
8.)

176. The requirement that in certain
circumstances decision-makers must act in accordance with the
principles of natural justice
or procedural fairness has ancient
origins.

177. Some 200 years ago in Dr Bentley’s
case, in which a famous scholar had been unlawfully deprived by the
Vice Chancellor
of Cambridge University of his qualifications without
notice or an opportunity to be heard, the Court observed that even
Adam and
Eve were given an opportunity to be heard before an adverse
decision was taken against them (See R vUniversity of Cambridge
(1723)
Str 557).

178. It is a matter of record thateven
God himself did not pass sentence upon Adam before he was called upon
to make his defence.
‘Adam’ (says God), ‘where art
thou? Hast thou not eaten of the tree whereof I commanded thee that
thou shouldest
not eat? And the same question was put to Eve also.

179. This court is acutely aware, even
as it invokes biblical sources, for inspiration, that law is one
thing and religion another.
Law ought to be characterised by
rationality and operates in the secular, whilst faith operates, on
occasions, beyond law’s
boundaries. Yet, paradoxically, life
under law, owes an enormous debt to biblical teachings. It is often
said that we peer into
the very soul of the law when we ask difficult
questions about its canonical connections.

180. In general terms, the principles
of natural justice consist of two component parts; the first is the
hearing rule, which requires
decision-makers to hear a person before
adverse decisions against them are taken. The second and equally
important component is
the principle which provides for the
disqualification of a decision-maker where circumstances give rise to
a reasonable apprehension
that he or she may not bring an impartial
mind to the determination of the question before them. The latter
aspect is not relevant
in this matter.

181. In Botswana, the right to “due
process” or “fundamental justice” is not expressly
provided in the Constitution
of the republic, but none can dispute
that such values are implicit in the spirit of the Constitution. In
any event, the above
rights are part of our common law heritage.

182. The principles of natural justice
are founded upon fundamental ideas of fairness and the inter-related
concept of good administration.
Natural justice contributes to the
accuracy of the decision on the substance of the case.

183. The rules of natural justice help
to ensure objectivity and impartiality, and facilitate the treatment
of like cases alike.
Natural justice broadly defined can also be
seen as protecting human dignity by ensuring that the affected
individual is made
aware of the basis upon which he or she is being
treated unfavourably, and by enabling the individual to participate
in the decision-making
process. The application of the principle of
natural justice has proved problematic.

184. The challenge is always how to
strike the right balance between public and private interest. Whilst
this court, in the circumstances
of this matter seems compelled to
respond to the vulnerability of the citizen facing the pervasive
power of State and/or parliamentary
power, I am at the same time
aware that the court has to avoid a situation where the unconstrained
expansion of the duty to act
fairly threatens to paralyse effective
administration.

185. The locus classicus decision of
Ridge v Baldwin [1963] UKHL 2; (1964) AC 40has made it clear that the public
interest in the functional efficacy of administrative decision-making
processes will not always trump
the importance of fairness and
justice to the individual. Those values are not the antithesis of
the public interest.

186. In my respectful view,the public
interest necessarily comprehends an element of justice to the
individual. The competing values
of fairness and individual justice
on the one hand and administrative efficiency on the other hand
constitute the public and the
private aspects of the public interest.

187. It seems plain to me that the
principles of natural justice are intended to promote individual
trust and confidence in the
administration. They encourage
certainty, predictability and reliability in government interactions
with members of the public,
irrespective of their stations in life
and this is a fundamental aspect of the rule of law.

188. Prior to the case of Ridge,cited
supra, the application of the principles of natural justice by the
courts was fraught with
peril. At that time, the applicability of
the audi alteram partem rule was based on an artificial distinction
between “rights”
and “privileges” affected by
the exercise of power.

189. It is now incontrovertible that
the law has now developed to a point where it may be accepted that
there is a common law duty
to act fairly, in the sense of according
procedural fairness, in the making of decisions which affect rights,
interests and legitimate
expectations, subject only to the clear
manifestation of statutory intention.

190. It can now be confidently asserted
that the exercise of a statutory power will be conditioned by the
principles of natural
justice where that power is likely to affect
the interests of an individual alone or apt to affect his interests
in a manner which
is substantially different from the manner in which
its exercise is likely to affect the interests of the public.

191. It seems to me that the law has
moved towards a conceptually more progressive position where common
law requirements of procedural
fairness will, in the absence of a
clear contrary legislative intent, be recognised as applying
generally to decision-making and
where the question whether the
particular decision affects the rights, interests, status or
legitimate expectations of a person
in his or her individual capacity
is relevant to the ascertainment of the practical content, if any, of
those requirements in the
circumstances of a particular case.

192. Having regard to all the above and
the authorities cited, I hold that parliamentary proceedings or
proceedings of any Committee
of parliament impugning a citizen’s
right to a good name is amenable to judicial review and therefore
attracts the audi alteram
partem rule. To this extent, the Applicant
was entitled to address the inquiry in his defence, to be furnished
with a copy of
the evidence impugning his good name and to
cross-examine through counsel his accusers and the witnesses that
adduced evidence
having a bearing on the Committee’s findings
against the applicant. Failure to abide by the rules of natural
justice, renders
the decisions of the Committee a nullity.

193. On the other hand, the duty to act
fairly does not imply that the Select Committee ought to have
conducted its procedures as
if it were a court.

194. In Re Pergamon Press [1971] Ch.
388; [1970] 3 W.L.R. 792; [1970] 3 ALL E.R. (1970) 114 S.J. 569, it
was held that whilst inspectors appointed under the Companies Act
1948 s.165 are under
a duty to act fairly, this does not mean that
they are bound to proceed in the same manner as a Court. The Board of
Trade appointed
two inspectors to investigate the affairs of a
company.

195. The inspectors informed a number
of directors of the company who were required to give evidence that
before any criticism of
them was made in a report they would be
informed of the nature of that criticism and given an opportunity to
comment on it. Three
of the directors sought assurances from the
inspectors that they would be permitted to see the transcripts of the
evidence of other
witnesses, to cross-examine other witnesses, and to
see the text of any criticism which the inspectors proposed to make
of them
in their report.

196. The inspectors refused to give
these assurances, and the directors refused to answer any questions.
The inspectors certified
their refusal to the court, and Plowman,J.
held that the directors were bound to answer the questions.

197. Dismissing the directors’ appeals,
the Court held that although the inspectors’ duty was only to
investigate and report, and
not to determine any question or take any
decision, they were bound to act in accordance with the rules of
natural justice. These
did not require them to proceed as though they
were a court, but allowed them to determine their own procedure so
long as it was
fair.

198. It had been argued by counsel for
the DTI inspectors that:

“In all the cases where natural
justice had been applied hitherto, the tribunal was under a duty to
come to a determination
or decision of some kind or other. He
submitted that when there was no determination or decision but only
an investigation or inquiry,
the rules of natural justice did not
apply.”(SeeRe Pergamon Press Ltd [1970] 3 ALL ER 535 (CA) at
539)

199. Lord Denning M.R. rejected this
argument:

“I cannot accept counsel for the
inspectors’ submission. It is true, of course, that the inspectors
are not a court of law.
Their proceedings are not judicial
proceedings … They are not even quasi-judicial, for they decide
nothing; they determine nothing.
They only investigate and report …
But this should not lead us to minimise the significance of their
task.”(See Re Pergamon
Press Ltd [1970] 3 ALL ER 535 (CA) at
539)

200. In identifying the wide
repercussions of investigations of this nature (including the
potential for ruining reputations and
careers and providing the basis
for legal proceedings to be brought) the Court observed that it
matters not how the proceedings
could be characterised, whether
quasi-judicial or administrative, the bottom line being that they
must act fairly, seeing that
their work may damage reputations.

201. In R. v Lord Saville of Newdigate
Ex p. A[1999] EWCA Civ 3012; , [2000] 1 W.L.R. 1855; [1999] 4 ALL E.R. 860; [1999] C.O.D.
436; (1999) 149 N.L.J. 1201a tribunal that was set up to inquire into
the circumstances of the “Bloody Sunday” shootings in
1972
withdrew anonymity from individual soldiers who had either admitted
firing, or were alleged to have fired, live rounds. Anonymity
had
been granted during the previous inquiry in 1972, on the basis of the
risk of retaliatory attacks by republican terrorists.

202. The Divisional Court quashed the
decision to withdraw anonymity following an appeal by the soldiers
concerned and remitted
the matter to the tribunal. The tribunal
appealed, contending that, although the security services had
established that a genuine
threat of reprisals remained, the need to
conduct a fully open inquiry, outweighed the risks involved in
identifying individual
soldiers.

203. The Court in dismissing the
appeal, held that the tribunal had failed to appreciate that by
conducting a painstaking inquiry
spanning every issue, it was
performing its judicial function correctly and also establishing
public confidence in the outcome.

204. The legislation governing the
conduct of the tribunal itself contemplated that there might be parts
of the evidence from which
the public were excluded. The tribunal had
failed to grasp the limited effect upon the inquiry’s openness of
permitting the soldiers
to identify themselves by a single letter.

205. The tribunal had already accepted
that its ability to determine the truth was not likely to be
jeopardised as a result. The
public nature of the inquiry would be
preserved despite the maintenance of anonymity. Evidence would be
taken in public and reports
of the proceedings published. The
tribunal was clearly concerned with the views of the victims’
relatives as to procedural fairness,
but had neglected to give
sufficient weight to the opposing views on fairness, if anonymity was
withdrawn.

206. Once it became apparent that the
fear of reprisal was reasonable, the fundamental question to ask was
whether there was any
compelling justification for the withdrawal of
anonymity that had been afforded to the soldiers for the previous 27
years. The
individual right to life was a fundamental freedom to
which the tribunal had possibly paid insufficient attention.

207. In the course of its judgment the
court, per Lord Woolf MR stated that:

“Although we are here concerned
with a very different type of inquiry from that being considered in
the Pergamon Press case,
it can equally be said of this tribunal that
while it is master of its own procedure and has considerable
discretion as to what
procedure it wishes to adopt, it must still be
fair. Whether a decision reached in the exercise of its discretion is
fair or not
is ultimately one which will be determined by the courts.
This is because there is an implied obligation on the tribunal to
provide
procedural fairness. The tribunal is not conducting
adversarial litigation and there are no parties for whom it must
provide safeguards.
However the tribunal is under an obligation to
achieve for witnesses procedures which will ensure procedural
fairness …
As to the content of the requirement of procedural
fairness, this will depend upon the circumstances and in particular
on the nature
of the decision to be taken” (See [1999] EWCA Civ 3012; [2000] 1 WLR
1855, 1868.)

208. The Savilleruling is particularly
pertinent in that it deals with the tricky question of the
protections and rights to be afforded
to witnesses before a tribunal
whose primary objective is inquisitorial and not adversarial, such as
is the present case. Furthermore,
although the Applicant appeared
before the Select Committee, as a witness, the outcomes of the report
positioned him as a focal
party to the inquiry instead.

209. I must state that although the
Applicant was a witness, it is plain to me having regard to the
damaging nature of the accusations
against him that he was for all
intents and purposes an accused. He was in the view of the Committee
a candidate of criminal investigation
and/or even prosecution. That
much is clear to high heavens.

210. In the Kenyan case of Republic v
Attorney General & 3 Others Ex-parte Kamlesh Mansukhlal Damji
Pattni [2013] eKLR (Miscellaneous
Civil Application 305 of 2012), the
Court held that the observations and conclusions in the challenged
report did indeed impair
the Applicant’s presumption of
innocence in that:

“the Bosire Commission all but
concluded that the Applicant was guilty of the offences of fraud,
forgery and theft as stated
in their report. Only through abundance
of caution did the Commission leave it to the Attorney General to
place the last nail on
a sealed fate as regards the Applicant’s
guilt for the said offences.” (See para 62)

211. The same observation can be made
in this matter. The Committee had all but concluded that the
Applicant was guilty of grave
transgressions and worthy of possible
prosecution.

212. The role of the Court in cases
such as the present application is to carve out a balance between the
need for persons who are
accused of serious transgressions and public
interest in the proper running of State entities while at the same
time ensuring that
any inquiry that ensues is conducted fairly and
not oppressively. It is in the public interest that any person
accused of wrong
doing be afforded an opportunity to say his side of
the story and defend his good name and reputation.

213. In any event, as per Lord Denning
in R. v. Race Relations Board. ex parte Selvarajan: [1976] 1 ALL E.R.
12, C.A. at p.18)

“the fundamental rule is that, if
a person may be subjected to pains or penalties, or be exposed to
prosecution or proceedings,
or deprived of remedies or redress, or in
some such way adversely affected by the investigation and report,
then he should be told
the case made against him and be afforded a
fair opportunity of answering it.”

214. The 1st and 2nd Respondentscontend
that the rights, which the Applicant asserts in these proceedings,
are typical rights afforded
to a person accused in criminal
proceedings or charged before an administrative tribunal and are not
the rights typically afforded
to a witness in any proceedings, be
they before an investigative Committee or even a court of law.

215. In their research into the rights
of witnesses at Parliamentary Inquiries in the Netherlands, Snyjder
and Sherlock explored
the implications that such efforts can have
upon those called to be witnesses but whose actions lie at the heart
of the inquiry:

“It is, without doubt, of value
for the legislature within a state to play a role in guarding against
executive abuse of power.
Such control becomes a reality only if the
legislature has at its disposal some effective means of gathering
information. In extreme
cases, legislatures may have far-reaching
powers of inquiry into the activities of government, individual
members of the legislature
and, in some cases, private individuals.
Such inquiries … are sometimes highly politically charged.
Furthermore, the safeguards
for the subjects of the inquiry are not
always equal to those available to an accused in a court of law, yet
the consequences of
an adverse decision may be equally damaging.(My
emphasis)Even where the inquiry is removed from the politically
charged atmosphere
of the legislature the second problem may remain.”
(See Snyjder, H & Sherlock, A (1990) “Witnesses at
Parliamentary
Inquiries in the Netherlands: A comparative
Examination” 21 Cambrian Law Review 33, 33.)

216. The learned authors make a further
observation that resonates with the present inquiry when they say
that:

“Most witnesses are personally
involved in the subject of inquiry and are called to account for
their part in the matter by
a committee, equipped with extraordinary
powers. Called before a Committee as a witness one is supposed to
testify and contribute
to a better understanding of the subject under
investigation. But often the witness appears to be the very subject
of investigation
himself, in which case his position gets closer to
that of a defendant.(My emphasis)This rather peculiar position of
witnesses
raises questions.” (See Snyjder & Sherlock)

217. In much the same vein, Willmott
notes that despite the proliferation of judicial inquiries in recent
years and the gravity
of the issues on which they are required to
report, there remains considerable uncertainty as to the procedural
protections to
which witnesses are entitled.

218. The learned author observes that,
the extent of an individual’s right to have a legal representative
attend the inquiry’s hearings
and make representations on behalf of
the witness has for many years been extremely unclear.

219. According to Willmott,
constitutional “fair trial” protections do not provide
the certainty to witnesses on the
question of legal representation
that may at first sight be expected. Rather, subject to constraints
on the exercise of its discretion,
the judicial inquiry itself is
free to determine the procedure that it will follow in running the
inquiry, including the issue
of whether to allow legal representation
when taking evidence from witnesses. (See Willmott, cited supra)

220. The National Assembly (Powers and
Privileges Act Cap 02:05 in Section 14, spells out the privileges of
witnesses,but does not
clearly state what their rights especially
when it is clear that such witnesses are for all intends and purposes
the defendants.

Section 14 provides:

“14. Privileges of witnesses

(1) Every person summoned to attend to
give evidence or to produce any paper, book, record or document
before the Assembly or a
Committee thereof shall be entitled, in
respect of such evidence or the disclosure of any communication or
the production of any
such paper, book, record or document to the
same right or privilege as before a court of law.

(4) An answer by a person to a question
put by the Assembly or a Committee shall not be admissible in
evidence against him in any
civil or criminal proceedings except in
the case of criminal proceedings for an offence against this Act or
for perjury, subornation
of perjury or defeating or obstructing the
course of justice.”

221. Accordingly, except in case of
perjury, statements made before the Assembly or a Committee thereof
cannot serve as evidence
in a criminal procedure. However there is no
immunity from prosecution that is based upon the outcomes/findings of
the relevant
process.

222. In my considered view, witnesses
like the Applicant, in an inquiry such as the one we are dealing with
occupy a somewhat precarious
position. If they are simply to be
treated in the same way as witnesses in a court of law their position
becomes precarious once
it is apparent that their position is not
that of a witness but that of a party to proceedings who stands
accused of certain misconduct,
and this what transpired at the Select
Committee, as evinced by the findings of such Committee.

223. Their position becomes more
invidious if findings of serious wrong doing that may attract
criminal prosecution are made. In
saying this, I do not mean to
dismiss the value of parliamentary and other inquiries in
investigating matters of public concern;
it is essential, however,
that the position of those giving evidence to such inquiries is
appreciated and that appropriate safeguards
are built in.

224. In the matter of Re Padraig
Haughey [1971] 1 IR 217, the Committee of Public Accounts was ordered
to examine specially the expenditure of a certain grant-in-aid for
Northern Ireland
relief and any moneys transferred by the Irish Red
Cross Society to a bank account into which moneys from the
grant-in-aid were
or might have been lodged, and to furnish a
separate report upon the expenditure.

225. The Oireachtas passed the
Committee of Public Accounts of Dáil (Privilege and Procedure)
Act, 1970, which provided by
sub-s. 4 of s. 3 that, if any person
being a witness before the Committee should refuse to answer any
question to which the Committee
might legally require an answer, the
Committee might “certify the offence of that person under the
hand of the chairman of
the Committee to the High Court” and
that the High Court might “after such inquiry as it thinks
proper to make, punish
or take steps for the punishment of that
person in like manner as if he had been guilty of contempt of the
High Court.”

226. In this case, hearsay evidence,
containing serious accusations against H., was received by the
Committee and H, then attended
before it as a witness but, having
made a statement, he refused to answer any questions of the
Committee. The Committee then certified
to the High Court that “an
offence under the said Act has been committed by the said H.” By
reason of his refusal to
answer questions. H, was sentenced to prison
and appealed against that decision.

227. When the matter came before the
Supreme Court Ó Dálaigh CJ (delivering the judgment of
the Court) had the following
to say:

“In my opinion counsel is right
in his submission that Mr Haughey is more than a mere witness. The
true analogy, in terms
of High Court procedure, is not that of a
witness but of a party. Mr Haughey’s conduct is the very subject
matter of the Committee’s
examination and is to be the subject matter
of the Committee’s report.

No court is unaware that the right of
an accused person to defend himself adds to the length of the
proceedings. But the Constitution
guarantees that the State “so
far as practicable” … will by its laws safeguard and
vindicate the citizen’s good name.
Where, as here, it is considered
necessary to grant immunity to witnesses appearing before a tribunal,
then a person whose conduct
is impugned as part of the subject matter
of the inquiry must be afforded reasonable means of defending
himself. What are these
means? They have been already enumerated at
(a) to (d) above. Without the two rights which the Committee’s
procedures have purported
to exclude, no accused …could hope to
make any adequate defence of his good name. …”

228. In the course of its judgment, the
court made the following relevant remarks:“….in
proceedings before any tribunal
where a party to the proceedings is
on risk of having his good name, or his person or property, or any of
his personal rights jeopardised,
the proceedings may be correctly
classed as proceedings which may affect his rights, and in compliance
with the Constitution the
State, either by its enactments or through
the Courts, must outlaw any procedures which will restrict or prevent
the party concerned
from vindicating these rights.”

229. The court also had occasion to
reflect and compare the position of witnesses in the High Court and
those before the inquiry
and stated that:

“The immunity of witnesses in the
High Court does not exist for the benefit of witnesses, but for that
of the public and the
advancement of the administration of justice
and to prevent witnesses from being deterred, by the fear of having
actions brought
against them, from coming forward and testifying to
the truth. The interest of the individual is subordinated by the law
to the
higher interest, viz., that of public justice, for the
administration of which it is necessary that witnesses should be free
to
give their evidence without fear of consequences”

230. In elaborating that witnesses
should be free to give their evidence without fear of consequences,
the court observed that:

“It is salutary to bear in mind
that even in the High Court, if a witness were to take advantage of
his position to utter
something defamatory having no reference to the
cause or matter of inquiry but introduced maliciously for his own
purpose, no privilege
or immunity would attach and he might find
himself sued in an action for defamation. The witnesses before the
present Committee
are in no better position. The fact that a witness
may have been permitted or even encouraged to venture into the area
will afford
him no defence in such an action. Furthermore, in the
High Court it is the duty of the judge to warn a witness that he is
privileged
to refuse to answer any question if the answer would tend
to incriminate him. That privilege is also enjoyed by witnesses
before
the Committee, but it does not appear from the documents
before us that Mr Haughey in this case was so warned.”

In my opinion this appeal should be
allowed and the conviction and sentence of the High Court set aside
… (See In re Haughey,
263 – 265)

231. Willmott suggested a list of key
factors that would be relevant in all cases with respect to the issue
whether witnesses should
be allowed some form of legal representation
when giving evidence if the inquiry’s duty to be fair is to be
met:

a) The nature and purpose of the
inquiry;

b) Whether the witness is at risk of
being criticised in the report, and what the practical and legal
impact of being criticised
in the report would be for that
individual;

c) Whether the witness is attending to
give evidence voluntarily or under compulsion;

d) Whether the inquiry is to take its
evidence in public or in private;

e) The extent of complexity of the
issues under consideration by the inquiry;

f) Whether the individual may be
incapable of giving proper evidence without legal representation;

g) The extent to which allowing legal
representation to witnesses would impact negatively on the legitimate
objectives of the inquiry;

h) The extent to which allowing legal
representation to witnesses would assist the inquiry in achieving its
legitimate objectives;
and

i) Whether the questioning of witnesses
will be by counsel to the inquiry.(See Willmott, cited supra, page
27)

232. WhilstWillmott’s arguments
focus on a presumption of legal representation for witnesses, each of
these points could be
useful to assist the court in determining
whether the Parliamentary Committee met its duty (if one exists) to
be fair.

233. Accordingly, in considering the
nature and purpose of the inquiry, Willmott points out that “the
greater the public importance
of the events under investigation”and
therefore the increased potential impact of its findings, both on the
witnesses themselves
and on the public generally), the more vital it
is that the report is fair to all witnesses and produces a report
that is authoritative
and comprehensive.

234. Where, in matters such as the
present case, it is reasonably clear from the outset that the “finger
of blame may be pointed
at one or more of the witnesses” it
seems plain to me that the strong presumption should be in favour of
legal representation
(and other protections) for the witnesses.

235. It is also my respectful view that
where there are more complex matters that the witness will be
required to give evidence
on; the more important it will be for the
witness to have the benefit of legal representation when giving
evidence, to ensure that
the evidence is presented to the inquiry
accurately.

236. I am fortified in this view by
what the learned author Willmott, cited supra, says as outlined
hereunder:

“Equally, where the documents
relevant to issues to be covered by a witness’s evidence are
voluminous, the witness is likely
to rely more heavily on his legal
representatives in making sure that the relevant materials are
brought to the inquiry’s attention
and referred to in sufficient
detail. Where an inquiry, in examining a witness has failed to refer
to key documents – either as
a result of misunderstanding an issue or
through inadvertent omission – the witness’ legal representative is
best placed to refer
to such documents during the course of the
examination, to ensure that the witness covers any points that may
have been missed.
With the inevitable pressure in giving factual
evidence it is unreasonable to expect the witness himself to identify
and raise
further relevant documents and/or provide evidence on
issues that have not been asked for by the inquiry team.”(See
Willmott,
cited supra, 62)

237. With regard to the right to
cross-examine opposing witnesses, De Smith asks whether the audi
alteram partem rule requires that
a party be permitted to answer the
case against him by cross-examining opposing witnesses. The learned
author states that:

“It would seem that although the
right to cross-examine is not invariably implicit in administrative
adjudication, refusal
to permit cross-examination may in some cases
be a decisive element in establishing denial of the fair hearing that
the rules of
natural justice require.”(See De Smith, cited
supra, 581)

238. Courts have approached the matter
of rights of witnesses who participate in an inquiry differently;
however, the general inclination
seems to be in favour of extending
procedural fairness to those witnesses who in effect are accused of
misconduct or serious wrongdoing.
I am unapologetically in favour of
extending procedural fairness to witnesses who in effect find
themselves accused of wrong doing.

239. Speaking for myself, I found the
words of O’Neill J in the Callelycase to provide the best
approach. The learned judge
observes that:

“Where a person is facing a
charge of misconduct before any Tribunal of enquiry, that can have
the consequence of serious
damage to reputation and livelihood or
liberty, it is well settled that natural justice requires certain
basic minimum standards
to be observed, as set out in the judgment of
the Supreme Court in the In Re Haughey case and repeated many times
since. Implicit
in this scheme of natural justice is that before the
person accused is condemned, the facts necessary to establish the
charge must
be proven or established to the satisfaction of the
Tribunal. If the facts are established, then the Tribunal may move to
whatever
form of censure or penalties, as are prescribed. If the
facts are not proved, then the matter is at an end and the person
charged
is entitled to exoneration. … A Member of Seanad Éireann,
such as the Applicant, facing an investigation, as conducted
by the
Respondents, is entitled to expect no less and has the same
constitutional right to fair procedure as all other citizens.
He is
entitled to have the facts, as alleged, proved before an adverse
determination can be made against him.”(See Callely
at para 81)

240. Further guidance is also to be
found in the recommendations of the English Joint Committee on
Parliamentary Privilege. The
Committee stated:

“[e]ven when a Committee’s
inquiry results in criticism of an individual or an organisation, the
inquiry process should give
them an opportunity to put their case.
While a Committee’s findings may be uncomfortable reading for those
criticised, a Committee
will not take direct action against them. A
Committee report may suggest that illegal conduct has occurred, or
that specific conduct
should be culpable; it cannot of itself create
any legal liability. If a report prompts a disciplinary body to take
action, that
action will have to comply with the body’s own powers
and processes. The fact that proceedings in Parliament cannot be
questioned
in courts or similar bodies outside Parliament provides
further protection for witnesses, whether or not they appear
willingly.”(See
“Procedure in Committee” Joint
Committee on Parliamentary Privilege, cited supra, para 83)

241. It is suggested that what is
ultimately needed is active involvement in the decision-making
process as a whole to a degree
sufficient to provide those affected
with the requisite protection of their interests. (See R (L) v West
London Mental Health NHS
Trust at para 97)

The Correct Characterization of the
Proceedings of the Committee

242. The Respondents herein seek to
rely upon the provisions of Section 17 of the National Assembly
Powers and Privileges Act to
support their argument that the
proceedings before the Select Committee do not constitute
administrative or judicial proceedings
except in the case of perjury
or subornation of perjury or defeating or obstructing the course of
justice (none of which are relevant
in these proceedings).

243. Section 17 stipulates that
proceedings are to be deemed judicial proceedings for certain
purposes:

“When a person gives evidence or
produces a paper, book, record or document before the Assembly or a
committee in pursuance
of this Act, the proceedings shall be deemed
to be judicial proceedings for the purposes of a prosecution for
perjury, subornation
of perjury or defeating or obstructing the
course of justice.”

244. Although in my view the
proceedings of the Committee were plainly quasi-judicial and/or
judicial, it seems to me that it does
not matter, for the purposes of
answering the question whether the Applicant was entitled to a
hearing, how we characterise the
proceedings of the Committee,
namely, whether they could be characterised as administrative,
quasi-judicial or judicial.

245. Writing about the right to be
heard in rule making proceedings in England and in Israel, Bracha
argues that the mere fact that
an act of administrative authority is
classified “legislative” does not in and of itself, justify
exempting that act
from the fundamental requirements of procedural
fairness as embodied in the rule prescribing the right to a hearing.
The classification
of proceedings is historically tied to the
determination of whether or not the rules of natural justice would be
applicable.

246. In my considered view, from the
point of view of the person aggrieved by the act of the authority, it
is irrelevant whether
or not the harm resulted from a legislative,
administrative or judicial act. What would matter is that his good
name has been
maligned without him being afforded a hearing. This
breach will be alarming or considered unfair not only to lawyers or
judges
but to all people of good conscience.

247. It seems to me that casting a
legislative imprint on an act of the authority does not lessen the
potential harm to the person
resulting from such an act.

248. Similarly, Peach cited supra,
points out that the law (in South Africa) has undergone a process of
evolution and development
that has effectively rendered irrelevant
the classification of decisions of a person or body into
quasi-judicial on the one hand
and administrative on the other, as a
criterion for determining the applicability of the rules of natural
justice.

249. In conducting this investigation,
the Respondents were bound by the ordinary rules of natural justice
and fair procedures.
As spelt out by O’Neill J in Callely, in
conducting an inquiry resulting in findings of fact, which had the
potential to
cause grave damage to the reputation and livelihood of
the Applicant, it necessarily follows, that the function the
Respondents
were discharging was a judicial or quasi-judicial
function in which they were bound to act fairly: it most certainly
was not a
political function in which they were entitled to free
themselves from the disciplines of natural justice and fair
procedures and
in particular to dispense with or ignore binding legal
provisions, in order to arrive at a conclusion considered to accord
with
“political ethics”. (See Callely at para 82)

The Relevance of Section 16 of the
National Assembly Powers and Privileges Act

250. Section 16 of the Act allows for
the introduction and guidance of the “usage and practice of the
House of Commons of
the United Kingdom”

“16. Determination of questions
relating to evidence and production of documents before the Assembly
or committee

Where at any time any question arises
in the Assembly or in a Committee in regard to-

a. the right or power of the Assembly
or a Committee to hear, admit or receive oral evidence;

b. the right or power of the Assembly
or a Committee to peruse or examine any paper, book, record or
document or to summon, direct
or call upon any person to produce any
paper, book, record or document before the Assembly or committee; or

c. the right or privilege of any person
(including a Member of the Assembly or committee) to refuse to
produce any paper, book,
record or document or to lay any paper,
book, record or document before the Assembly or committee,

that question shall, subject to the
preceding provisions of this Act, and except in so far as express
provision is made in those
provisions for the determination of that
question, be determined in accordance with the usage and practice of
the House of Commons
of the United Kingdom.”

251. It is my considered opinion that
Section 16 of the Act empowers the Court to give greater weight to
cases such as Chaytor and
the report by the Joint Committee on
Parliamentary Privilege when negotiating the tension between
parliamentary privilege and the
rules of natural justice.
Specifically in the elaboration of the rights and powers of the
Select Committee concerning evidence.

252. Having regard to all the above, it
is my view that the entire proceedings of the Committee that yielded
the Report, in so far
as it concerned the Applicant, that was
subsequently adopted by the National Assembly were unlawful for want
of compliance with
the principles of natural justice, in particular
the audi alteram partem rule, and is liable to be set aside, as I
shall do in
due course.

253. The above finding would ordinarily
conclude this matter. However, given the novel and national
importance of this matter and
that the parties legal representatives
invested time researching on the matter, I would proceed to answer
the question whether
the Committee and the National Assembly acted
ultra vires its power.

Whether the Committee and the National
Assembly acted ultra –vires its power

254. According to Hegarty, the
essential demands for “public inquiries are driven by a need
for an accounting for the events
and a desire to see the rule of law
restored. Thus, any response to these demands must be one that will
facilitate an independent
investigation, an important side-effect of
which may be the bolstering of the confidence of the general public
in the legal and
judicial process. A failure to carry out an
independent investigation may well have a catastrophic event on the
rule of law.”
(See Hegarty, A (2002) “The Government of
Memory: Public Inquiries and the Limits of Justice in Northern
Ireland”
26(4) Fordham International Law Journal 1148, 1155.)

255. It would appear that parliamentary
oversight committees such as the Select Committee in this matter are
established to fulfil
this role. Indeed, it is my considered view
that the work of parliamentary oversight committees is an important
means of ensuring
effective transparency and accountability in
relation to the work of the Executive.

256. In most parliamentary systems,
committees of inquiry are established to examine the work of the
Executive through in-depth
investigations into public policy and
administration of government.” (See Houses of the Oireachtas,
Joint Committee on the
Constitution (2011) “Fifth Report.
Article 15 of the Constitution: Review of the Parliamentary Power of
Inquiry”
Parliamentary number A11/0149.)

257. Parliamentary inquiries, such as
those undertaken by the Select Committee, are established with a
specific questioning mandate.
A Committee is not a court and the
consequences of a Committee of inquiry for the individual or
organisation whose evidence may
be sought will be limited.

258. Whilst parliamentary Committees
serve a good purpose as indicated above, the danger arises when the
quest for truth develops
into an adjudication of guilt. As Snyjder
and Sherlock, referred to earlier, explain, the hearings take place
in a tribunal-like
situation. The learned authors are correct in
pointing out that the Committee itself entirely defines the
proceedings, while the
witness is only allowed to answer questions
when asked.

259. We should not lose sight of the
factthat at the end of the day, the Committee is meant to find out
the truth. In order to
find out the truth,the Committee has at its
disposal several means of coercion, derived from penal law, such as
the summons, the
oath, imprisonment, the punishment of perjury and
other means.

260. Furthermore, we should not lose
sight of the fact that members of Parliament involved in the
Committees may neither have the
expertise nor the independence that
is required of a judge. Parliamentarians have political commitments,
they have their voters
to keep in mind at all times. Removing
political interests from the inquiry may be difficult.

261. The power of Parliamentary
Committee was discussed in the case of Ardagh and Others v. Maguire
and Others, [2002] IESC 21 (11th April, 2002). The caseconcerned an
appeal from a judgment and order of a divisional court of the High
Court which effectively
brought to an end an inquiry being conducted
by a sub-committee which had been purportedly established by a Joint
Committee of
both Houses of the Oireachtas to inquire into what has
become generally known as “the Abbeylara incident”.

262. The appellants were the members
for the time being of the Oireachtas Joint Committee, Ireland and the
Attorney General. The
Respondents were all members of An Garda
Síochána, some or all of whom received directions from
the Committee to
attend before and give evidence to the Committee.

263. In the statements of opposition
filed in the High Court, it was claimed on behalf of all the
appellants that there was vested
in the Oireachtas under the
Constitution an inherent power to establish committees empowered to
inquire into matters such as the
Abbeylara inquiry, to make findings
of fact relating thereto and to arrive at conclusions thereon which
would or might affect the
good name and reputation of individual
citizens, including the Respondents.

264. It was claimed on behalf of the
Committee that the grounds on which leave had been granted, which
related to the defects alleged
to have existed in the passing of
resolutions and amendments to the various orders establishing the
Committee, were not justiciable
by the High Court, these being
matters which it was within the exclusive power of the Oireachtas to
regulate under the Constitution.

265. It was further contended on their
behalf that, even if these matters were justiciable, and such defects
existed (which was
denied), they did not in any way affect the
validity of directions given to the Respondents to attend and give
evidence on the
validity of the proceedings of the Committee
generally.

266. At the outset, the divisional
court pointed out that the challenge was to the conduct of an inquiry
which had what the court
described as “adjudicative functions”
and which could make findings of fact adverse to the good name and
reputation
of a citizen. They were in no doubt that the Committee saw
itself as having such a role, i.e. that it possessed “adjudicative

functions” and could make such adverse findings.

267. The divisional court went on to
note that, although Articles 15 to 27 of the Constitution dealt with
“considerable particularity”
with the Oireachtas, it was
not contended that any express authority was to be found in the
Constitution authorising an investigation
of the type embarked upon
by the Committee and, in addition, that no such authority had been
conferred by legislation.

268. The divisional court said that the
Committee had contended that their entitlement to conduct such an
inquiry was “fundamental
to the separation of powers”.
They also pointed out that Deputy Shatter, who appeared, as a member
of the Committee, both
in the High Court and in this Court, rested
his case to some extent at least on Articles 5,6 and 45 of the
Constitution.

269. The court said that it appeared
strange that a matter as allegedly fundamental as this would not be
dealt with in the constitutional
articles dealing with the Oireachtas
but rather would be gleaned inherently from others.

270.In the final analysis, the Supreme
Court ruled (by a five to two majority) that the Oireachtas Inquiry
Committee was acting
outside its powers as its findings could
adversely affect the good name of a person.

271. In the course of his opinion,
Keane CJ, dissenting,observed that:

“The Oireachtas, like any other
body or person in the country, is entitled to keep itself informed
and, for that purpose,
to initiate inquiries, provided that, in so
doing, it does not infringe the law. That is not in any way in
dispute in this case.
Nor was it seriously contended on behalf of the
Respondents that the Oireachtas was precluded from establishing a
fact-finding
Committee to investigate and reach conclusions on
particular matters which might be relevant to the exercise by them of
their legislative
function. Thus, it was conceded that there could be
no legal inhibition on their establishing a Committee to investigate
and report
to them on a particular topic of scientific controversy in
order that they might consider the possibility of, and, if thought
appropriate,
enact, legislation dealing with the topic. The challenge
in these proceedings is to the establishment of a body, such as the
Committee,
charged with what the divisional court and the written
submissions on behalf of the Respondents describe as “adjudicative

functions”, the conclusions of which may affect the good name
and reputation of persons, such as the Respondents, who are
not
members of either House of the Oireachtas.”

The description of those functions as
an “adjudication” is, in my view, inappropriate and
calculated to mislead. The
Latin root of the word and the definition
to be found in the Oxford English Dictionary, Volume 1, make it clear
that one of its
primary meanings is “a judicial sentence or
award”. The report of a body such as the Committee is, however,
entirely
devoid of any legal effect. Its findings do not determine
any legal rights or obligations and represent no more than the
opinions
its members have formed on the material placed before them,
whether in documentary or oral form. Unlike the orders of courts
established
under the Constitution or awards and determinations of
the many tribunals which are not courts but exercise quasi-judicial
functions,
the findings of a body such as the Committee can be wholly
ignored or disregarded by persons referred to in their report without

the slightest possibility of any legal sanction being imposed upon
them as a result.

The Committee in this case proposed to
consider matters such as the amount of force used by the Gardai
concerned in the operation
at Abbeylara, the pathologist’s
findings and the implications of those findings and to reach
conclusions thereon. In the
result, they clearly considered
themselves entitled to reach a conclusion as to whether, in the light
of the evidence which they
heard, the Garda who fired the fatal shot
in this case used more force than was reasonably necessary, a finding
which, in a court
of law, might support a verdict of unlawful
killing. But the fact that the Committee could arrive at such a
finding does not mean
that they would be “adjudicating”
on the issue, as that expression is properly understood, still less
that they were
arriving at a finding which was in any way whatever
equivalent to the verdict of a court in criminal proceedings or, for
that matter,
the judgment of a court in civil proceedings arising out
of the same event.”(See at paras 96-98)

272. Whilst Keane CJ viewed the
challenge with regard to the classification of the Committee’s
functions as somewhat irrelevant,
he did take the view that the
potential impact of their findings upon the good name and reputation
of one or more of the Respondents,
as being the substantial basis of
the challenge to their constitutional capacity to carry out the
inquiry. (See para 103)

273. In a delicate balancing act, he
stressed that the duty of the courts to uphold and vindicate the
constitutional rights of the
Respondents to their good name cannot
have the effect of precluding the Oireachtas from discharging duties
and responsibilities
exclusively assigned to it by the Constitution.
However, “such an inquiry may only proceed in a manner which
strictly recognises
the right of the Respondents to have the inquiry
conducted in accordance with natural justice and fair procedures.”
(See
para 111)

274. Having regard to the view I hold
that theSelect Committee’s findings as a contained in its
report that was subsequently
adopted by the National Assembly
violated the audi alteram partem rule and was therefore unlawful I
need not decide the question
whether the Committee and or the
National Assemblyexceeded its oversight and legislative functions
when they proceeded to make
pronouncements relating to criminal
liability and the need for investigation.

275. There is a strong view expressed
by a number of authorities that making recommendations cannot amount
to a contravention of
the Constitution and or the oversight and
legislative functions of the National Assembly. I broadly agree.
After all, courts
often make recommendations, to regulatory bodies,
recommending investigation or disciplinary action. Whilst this court
takes the
view that Parliament should not readily do so, and where
possible should refrain from doing so, I cannot hold that such an
approach
is ultra viresits oversight or legislative powers.

276. In the result, this particular
ground is without merit and is dismissed.

In Summary

277. Insummation, it would have been
unjust, having regard to the weighty issues raised in this matter to
block its continuance
on the basis of technicalities. No prejudice
would be suffered by the Respondents by allowing this matter to
proceed in the manner
this court has done.

278. With respect to Section 3 of the
National Assembly Powers and Privileges Act, the language employed
therein does not suggest
that Parliament intended to exclude the
jurisdiction of this court where the aggrieved party complains of
breach of the principles
of natural justice and legality. The review
does not harm or in anyway undermine the constitutional mandate of
Parliament to legislate.
Neither does it undermine Parliament’s
powers to regulate its internal affairs. It would be a dark day in
the legal history
of this country if Section 3, worded in the manner
it is, is construed to block any person’s access to the courts.
It is
emphatically the province of the courts to construe the
boundaries of Section 3. This is what the Constitution has decreed.

279. The Constitution, in its wisdom,
withdrew certain matters from the Vicissitudes of political
controversy, to place them beyond
the reach of elected
representatives, and to place them in the hands of the courts, which
are oath bound to be independent and
impartial. The courts were
created to be an intermediary between the people, the legislature and
other entities, in order, among
other things, to keep the former
within the limits assigned to it.

280. It is vital to the constitutional
health of this republic that the respective branches of government
maintain the appropriate
separation of functions and powers.
Judicial examination must be limited to ensuring that Parliament does
not seek to exercise
its power in an unlawful way. It is not for the
courts to sit in judgment on individual actions taken within the
parliamentary
process. The courts have a role in assisting the
articulation of the extent of parliamentary privilege, but it is for
the Parliament
itself to determine how it exercises that privilege,
it being mindful at all times of the constitutional limits of its
power and
rule of law imperatives.

281. Bearing in mind the balancing
between individual rights and parliamentary privilege as spelt out by
O’Neill J in Callely,that
the correct observance of the
Applicant’s constitutional rights would not impede the proper
discharge by the Respondents
of their functions whilst on the other
hand, the denial of access to the Courts to the Applicant would
gravely disadvantage him
and the prejudice he may suffer as a result
may be irreparable.

282. I emphasise for avoidance of doubt
that an individual’s access to the courts, whilst it finds no
express provision in
the Constitution is an inherent element of our
constitutional order. It is an essential aspect of the rule of law
and also part
of our common law heritage which the courts must
jealousy guard against.

283. In my considered view, the process
of scrutinising the implementation of Parliamentary decisions, such
as the manner in which
the Select Committee conducted its inquiry
into BDC (and more specifically whether it complied with the rules of
natural justice
in so doing) does not impinge upon the ability of
Parliament to conduct its core business, or dilutes the doctrine of
Separation
of Powers, as constitutionality entrenched.

284. It would appear that whilst the
Parliamentary Committee may be best placed to determine the best
procedural approach to meeting
its mandate; the Court is ultimately
responsible for identifying what is and what is not fair, as a matter
of law.The court will
reach its own decision on the facts as to what
fairness requires.

285. In my view, to succeed in
persuading the court to disregard any harm that may have been
occasioned to the good name and reputation
of the Applicant, the
Respondents must demonstrate sufficiently significant countervailing
considerations, if those rights are
to be denied, which they were not
able to do in this case.

286. The reality of the situation is
that the Applicant occupied a position akin to that of an accused.
The Applicant’s conduct
lies at the centre of the Committee’s
examination and is the major subject matter of the Committee’s
report.

287. It seems plain having regard to
the above, that at the very least, the applicant should have been
informed what adverse information
was given against him and be
afforded a fair opportunity of answering.

Conclusion

288. This court is acutely aware of
public interest in ensuring that public entities are held accountable
and that the executive,
in all its formations,account to Parliament.
But this does not mean that shortcuts should be taken because
administering justice
in every case that comes to court is even a
greater public interest. In the temple of justice, justice must
prevail at all times.
Indispensing justice public condemnation or
praise is irrelevant. Justice has its own pace, and even if delayed
it has an amazing
way to re assert itself in due course.

289. It is worth emphasizing that
judges are or ought to be mortgaged to the rule of law and to be true
arbiters of what is fair
and what is not. Parliament as an
institution must lead by example. It must be fair at all times and
respect the rights of individuals.
Parliament, the creation of the
Constitution, ought to be subject to no authority other than the
Constitution, itself. Parliamentarians
are oath bound to respect the
Constitution, not just in words but indeeds.

290. Having regard to the authorities
referred to herein, and the grave nature of the allegations made
against the Applicant, who
has a right to his good name and
reputation,it seems inevitable that he ought to succeed in the relief
he seeks.

291. In the result; it is ordered as
follows:

i. It is declared and/or ordered that,
the proceedings of the Committee, its findings and or report that was
adopted on 25 July
2013 by the National Assembly in so far as it
concerned the Applicant is hereby reviewed and set aside.

ii. Declaring that the adoption on 25
July 2013 by the National Assembly of the report (“the Report”)
which was issued,
on or about 28 December 2012, by the Parliament
Select Committee of Inquiry 2012 (“the Committee”) on the
Fengyue Glass
Manufacturing (Botswana) Palapye Glass Project, in so
far it concerned or related to the Applicant was unlawful, and
accordingly
invalid; for breach of the principles of natural justice,
and in particular the audi alteram partem rule, in relation to the
Applicant.

iii. The costs of this application
shall be borne by the Respondents (who opposed this application),
jointly and severally and one
paying, the others to be absolved.

DELIVERED IN OPEN COURT AT GABORONE

ON THE 28th DAY OF JANUARY 2015

OBK DINGAKE

JUDGE

COLLINS NEWMAN & CO –
APPLICANT’S ATTORNEYS

ATTORNEY GENERAL’S CHAMBERS –
RESPONDENTS’ ATTORNEYS

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