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Williams v The State (Criminal Appeal No. 25 of 1989) [1989] BWCA 1 (1 January 1989)

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[IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
|        Criminal Appeal No. 25 of 1989
High Court Cr.App. No. 20/88
In the matter of:-
PETER WILLIAMS  -        Appellant
vs.
THE STATE        -        Respondent
JUDGMENT
CORAM: A.N.E. AMISSAH, J.P. T.A. AGUDA, J.A. B.A. DOYLE, J.A. W.H.R. SCHREINER, J.A. J.C. PUCKRIN, J.A.
IAMISSAH, JP:
This case comes before us by way of reference under Section 15 of
the Court of Appeal Act (Cap. 04:01) of questions of law by the Chief Justice
I i
(sitting on an appeal in a criminal case in the High Court. In the course bf the hearing of that appeal the question arose whether Statutory Instrument ^o. 12 of 1977, entitled Transfer of Powers, made under the Interpretation and General Provisions Act (Cap. 01:02), was validly made. By that Statutory, Intrument the President transferred the exercise of a large number of powers land the performance of a range of duties given him as a result of the Independence of Botswana. After the transfer, the powers under the Habit-Forming Drugs Act (Cap. 63:04) thereby given to the Minister of Health ' were exercised by the Minister in listing a number of drugs as habit-forming. J Amongst them "methaqualone (BP) otherwise known as mandrax". Unlawful j possession of that drug, therefore, became a crime under the law. But
I        :
I       
that can be so only if the exercise of the power by the Minister was valid.

2
i The question of law involved is of great importance. The case on I appeal before the Chief Justice was one involving the unlawful possession
t
i
'of methaqualone. And as the Chief Justice himself pointed out:
I "The answer to the question posed above would necessarily raise | the question whether the declaration of the substance listed in Statutory Instrument No. 36 of 1982 as habit-forming drugs
by the Minister of Health was a valid declaration        The
answers to the questions posed above would, without doubt have i far-reaching consequences. In the first place, if it is held j that Statutory Instrument No. 36 of 1982 is invalid, such a
decision would affect not only the substance 'methaqualone (BP) ; otherwise known as mandrax* but also the 35 other substances I listed in the Statutory Instrument. Secondly, it would affect ; not only this appeal but also many pending prosecutions for j offences against possession etc. of any of the listed substances j as well as pending appeals on the same subject-matter. Thirdly,
I am fully aware that the Court of Appeal has over the years | upheld many convictions for offences in respect of substances ! listed in the Statutory Instrument, the most recent being the
John Maten case. Fourthly, it would affect the validity of ! Statutory Instrument No. 35 of 1987 and that would necessarily '; raise the question whether the over 100 substances listed therein ! were properly listed as habit-forming drugs." i ! The consequences enumerated are serious enough. But they are
'consequences which flow only from the action taken by the Minister of Health
!to whom powers were conferred under the Habit-Forming Drugs Act under
i
!consideration in this case. That, however, is only one of a host of Acts iunder which powers were transferred to designated Ministers by Statutory \Instrument No. 12 of 1977. When judging consequences, therefore, the gravity' iof the situation which would be created by a decision in favour of invalidity :would affect not only the Habit-Forming Drugs Act. It would affect, apart jfrom the Habit-Forming Drugs Act, all the other Acts in which Statutory
(Instrument No. 12 of 1977 transferred powers to respective Ministers.
i
jNo less than 19 such other Acts and Proclamations would be affected. They
;        |
iinclude the Marriage Proclamation (Cap. 144 1959 Rev. Ed.), Immigration
i        ;
:(Consolidation) Law, 1966 (19 of 1966), Public Service Act, 1973 (14 of ! 11973), Customary Courts Act (Cap. 14:05), Town Councils Regulations
?

3.
j (Cap. 40:02 Sub. Leg), Employment Act (Cap. 47:01), Sleeping Sickness Act
|(Cap. 63:03), Conveyance of Dead Bodies Act (Cap. 65:01) and Building Control
iAct (Cap. 65:03), to name a few.
As stated before, the case before the learned Chief Justice was a ! Criminal Appeal from a conviction on a charge of unlawful possession of | habit-forming drugs contrary to Section 3 of the Habit-Forming Drugs ! (Amendment) Act No. 11 of 1984. Peter Williams, the appellant before the : High Court, was convicted of this charge by the trial Chief Magistrate, ; and given the minimum sentence under the Act of ten years imprisonment, | and a fine of P15,000 or three years imprisonment in default of the fine, I in addition.
j On the appeal before the High Court, learned Counsel on behalf of j the appellant, raised the novel but fundamental point as to the invalidity i of Statutory Instrument No. 37 of 1982, the Declaration (Extension of List) ! of Habit-Forming Drugs Order, 1982 by which the Minister of Health specified ! "methaqualone (BP) otherwise known as mandrax" as a habit-forming drug.
| If he was right, then no crime was, or could be created with respect to
i
i the possession of the substance.
Now the possession of methaqualone (BP) otherwise known as mandrax • i | has troubled this Court before. In the earlier case of Mzwinila v. The
j State (Criminal Appeal No. 8 of 1987) which was also a reference of a question
! of law to this Court by a High Court judge, the question was whether it
j was incumbent upon the State to prove either or both of the following matters,
!        i
! namely, that
(a) the relevant substance is methaqualone in accordance with I
I        the criteria laid down in the British Phamacopeia; or
I (b) such substance is mandrax, "i.e. a product containing
!        methaqualone produced by or under the authority of a person
entitled by law to use the name "mandrax" on such product".

m
This Court answered the question in both aspects in the negative.
The answer in Mzwinila's Case did not satisfy all concerned, and the
matter came up before this Court again in the appeal case of John Maten
v. The State (Cr. App. No. 23 of 1988) when we pointed out that we were
obliged to answer a specific question in Mzwinila, therefore, it was not
open to us to deal with the issue of the proportion of a tablet in possession
which should be constituted by the drug methaqualone itself, we were not
in the earlier case asked such question. As Doyle JA., through whom this
Court once more spoke on this issue, put it:
"The Court was not asked and therefore not required to answer a question of proportions generally. The Act does not, in fact, in the cases of all substances lay down a necessary proportion."
It was therefore held that there was no need for the prosecution to prove that the substance found in the possession of the accused contained any particular percentage of methaqualone. All that was required was proof that the substance contained the prohibited methaqualone.
I have already stated that, in this case, the validity of the order which proscribed the possession of methaqualone itself is being challenged. Learned Counsel has argued in support of the invalidity that Statutory Instrument No. 36 of 1982 was made as a result of a transfer by Statutory Instrument No. 12 of 1977 of a power vested in the President. But that the purported transfer by the Instrument was made in exercise of the President's power under Section 28 of the Interpretation and General Provisions Act (Cap. 01:02), and that that exercise was itself invalid.
To appreciate the force of that argument, it would be useful to recite at this stage some of the relevant statutory provisions.
By paragraph 3(a) of the Constitutional Amendment (Adaptation of Existing Laws) Order, 1966:

! "3. The laws mentioned in the first column of the Second
Schedule of this Order are hereby amended, or further
i amended as the case may be - ,
1        (a) by substituting the words (President', 'the
i        President', or 'the Presidents' as may be
j        most appropriate for any of the following
i        expressions, that is to say 'Her Majesty's
j        Commissioner', 'Her Majesty's Commissioners',
I        'Her Majesty's Commissioner of the Bechuanaland
Protectorate', 'Prime Minister', 'Prime Minister
of the Protectorate', 'High Commissioner',
i        'Resident Commissioner1".
| Amongst the Acts referred to in the Second Schedule was, in the first and
; second columns respectively, the following:
Habit-Forming Drugs (Cap. 57)    ss 3,4,5,6,7,9,
!        10,11,13,15,
16,17.
The President thereby acquired the powers under the specified sections
I Because of the title of the Order, that is to say, the Constitutional
Amendment (Adaptation of Existing Laws) Order, learned Counsel sought to
argue that the order was a constitutional amendment and, therefore, formed
a part of the Constitution of Botswana. Consequently, according to that
argument, the President's power to exercise functions under the Act was
I constitutional in origin, and so remains. It had to be so, because by
! virtue of Section 30(1) of the Interpretation and General Provisions Act
: (Cap. 01:02) read with Section 47 of the Constitution, "such power was
not transferable or delegable." Counsel, however, resiled from this position
when he found that that argument failed to impress us. We think that the i
i title is no more than descriptive in nature and conferred no constitutional j
: status, and indeed could not so confer any such status, on the Order.
' Having acquired the power or function under the Habit-Forming Drugs
i Act, the President in 1977 made the following order:

I        "Statutory Instrument No. 12 of 1977
i        Interpretation and General Provisions Act
I        (Cap. 01:02)
I
;        Transfer of Powers
In exercise of the powers conferred by Section 28 of the ! Interpretation and General Provisions Act, His Excellency the President hereby transfers the exercise of the powers or the performance of the duties, as the case may be, i conferred on him by the sections or regulations specified j in the second column of the Schedule of laws specified in ; the first column of the said Schedule to the respective j Ministers within whose portfolios such laws fall."
By this time the Habit-Forming Drugs Act had become Chapter 63:04
i
jof the laws of Botswana.
i In the first and second columns of the Schedule was the following-
|
Habit Forming Drugs Act
i        (Cap.63:04)      5,13,14,15.
i
It was through this transfer that the Minister of Health acquired
jthe President's powers under the Habit-Forming Drugs Act. The Minister
jthen by the Declaration (Extension of List) of Habit-Forming Drugs Order
1982 (Statutory Instrument No. 37 of 1982) added "methaqualone (BP)
otherwise known as Mandrax" to the list of habit-forming drugs. The
[prosecutions for unlawful possession of habit-forming drugs have since
(that date been founded on this declaration. Recent reproductions of the
jAct have, accordingly substituted "the Minister" for "the President" as
\a consequence of the provision in Section 28(2) of the Interpretation and
j
[General Provisions Act to the effect that after a transfer, the affected statute was to be read and construed as if the statute had been amended in conformity with the transfer. Just to complete the picture, I should jmention that the Habit-Forming Drugs Order 1982 was amended by another jOrder in 1987 (Statutory Instrument No. 35 of 1987) which substituted "methaqualone" for "methaqualone (BP) otherwise known as mandrax". Save

[7 ;
i j
i
jfor the fact that that Order would also be struck down if the case of
jinvalidity were upheld, nothing further turns in this case on that Order.
i i
; If Counsel is right in his submission that the transfer of power by !the President to the Minister by Statutory Instrument No.12 of 1977 was ; invalid, then the argument that the purported exercise by the Minister jin his own right of the power to proscribe habit-forming drugs was also ;invalid must follow. In the appeal from conviction which came before the :High Court, the learned Chief Justice appears inclined to the view that ithe transfer of power was invalid, and obviously because of the consequences iwhich would follow if he were to hold that this were so, he referred the I question to us for a prior ruling before he proceeded further with the 1 appeal. In the case of Mzwinila v. The State (Cr. App. No. 21 of 1989) idecided by us this Session we pointed out that the power of reference iunder Section 15 of the Court of Appeal Act (Cap. 04:01) should be sparingly used by Judges of the High Court. Its use would be justified in exceptional icircumstances and should not become an instrument for Judges avoiding !difficult decisions. This must be so, especially in cases where it is
' clear that the particular High Court Judge has already formed a view of
I
iwhat decision should be. We are bound to say that, having regard to the profound consequences, not only in upsetting trials and convictions for iunlawful possession of methaqualone, but also with regard to the much wider .implications to the administration of this country, a decision in favour jof invalidity would create, the reference in this case was a very proper use of the High Court's power.
i I said that the learned Chief Justice appeared inclined to accept
!
i the submission that the transfer was invalid because of the view which
j
|appears in these passages of the decision referring the questions to us:

n

8";
         I
i "The question then is whether the President may transfer his I powers under the unamended Section 15 of the Habit-Forming
Drugs Act acting under the powers conferred on him by Section
         28(1) of the Interpretation and General Provisions Act.
!        In my opinion the answer would depend to a large extent, if
| not entirely, on whether the President is a specified Minister
| or a Public Officer    In my opinion the President would
only be a specified minister if he holds the portfolio of the ministry whose minister is empowered to exercise the relevant power or perform the relevant duty under the written law. In
         other words the power or duty must vest in the President qua
minister and not qua President. By way of contrast, the power
or duty delegated under section 29 must vest in the President
qua President".
I have earlier attempted to trace the history of how the President
j came to be vested with the powers under the Habit-Forming Drugs Act and
i how he transferred the exercise of these to the Minister. It will be
jrecalled that Statutory Instrument No. 12 of 1977 by which the President
; made the transfer, recited that he was exercising his power of transfer
! under Section 28 of the Interpretation and General Provisions Act. To
I appreciate the significance of the learned Chief Justice's opinion
; quoted, the relevant parts of both Sections 28 and 29 of that Act should now
! be set out. They provided that:
"28(1) Subject to the provisions of Section 30, where by or
j under any written law any specified Minister or public officer
: is empowered to exercise any power to perform any duty, the
President may transfer the exercise of such power or the
performance of such duty, subject to such conditions,
exceptions and qualifications as the President may specify, to
(a) a specified Minister;
i (b) a Minister without specifying which Minister; or
(c) a specified public officer or the holder for
the time being of a specified public office; and thereupon,
',       or from a date specified by the President, the transferee
| shall exercise such power and shall perform duty in place of j the Minister or public officer originally so empowered."
: Section 29(1), on the other hand, provided that:
i "29(1) Subject to the provisions of Section 30, where by or
under any written law the President is empowered to exercise any powers or perform any duties, he may delegate to any
| person by name, or the person for the time being holding the
?

office designated by him, to exercise such powers or perform such duties on his behalf, subject to such conditions, exceptions or qualifications as the President may direct, and thereupon or from a date specified by the President the delegates shall exercise such powers and shall perform such duties."
As the learned Chief Justice succintly put it,
"....whereas Section 28 empowers the President to transfer powers and duties conferred on a Minister or a public officer, Section 29 empowers him to delegate powers and duties conferred on him as President."
iWhen it comes to transfer, Section 28 says that the President may transfe
from a "specified Minister or public officer." The question examined by
|
;the Chief Justice was whether the President in whom the power transferred
i
|was vested was a specified Minister or public officer.
; The Constitution in Section 127(1) defines "public officer" as "a
i
iperson holding or acting in any public office." And Section 3(1) of the
[Interpretation and General Provisions Act provides that the expression
!
;has the same meaning as the Constitution. But the Constitution continues
iin Section 127(3) to say that:
"(3) For the purposes of this Constitution a person shall not
be considered to be a public officer by reason only that he
is in receipt of any remuneration or allowance as the
President, Vice-President, a Minister or Assistant Minister, ..
         etc."
Such provision would have been clearer if it had simply said that ^the President, Vice-President, Minister etc. were not Public Officers,
jrather than tying up the exclusion to the receipt of remuneration or iallowance as such officers. However this may be, it seems as if the Constitution excludes the President from the class of public officers
as defined.
! If the President is not a public officer, and by Constitutional
jdifinition he is not, then is he a Minister? The Interpretation and
i i

EG
General Provisions Act defines the word in Section 3(1) as follows:
"3(1) The following words and expressions shall have the meaning hereby assigned to them respectively, that is to say, -
"Minister" means a Minister of the Government and includes the President and the Vice-President."
It will be noted that the provision does not include the usual qualification found in definition sections which say that the definition given should apply unless the context in which the defined words appears requires otherwise. By definition, therefore, the President is without question a Minister. In that case is he a "specified Minister" within the context of Section 28(1) of the Interpretation and General Provisions Act; the sub-section which empowers the President to transfer powers and duties from a specified Minister to other persons described in the subsection.
As shown earlier, the learned Chief Justice thought the President was not a specified Minister, and his reason for this conclusion was that "the President would only be a specified minister if he holds the portfolio of the ministry whose minister is empowered to exercise the relevant power or perform the relevant duty under the written law." It follows without saying from that conclusion that if the President was not a specified Minister within the context of Section 28(1) of the Act, he could not as President transfer powers he holds to anybody by virtue of that subsection. Any purported transfer of such powers, was, therefore, ultra vires and invalid.
With all due respect to the learned Chief Justice, I must confess that this reason causes me great difficulty. I find it difficult to understand why an enactment which says that powers and duties of a specified Minister may be transferred, thereby limits the meaning of Minister to

LLL
a Minister holding a particular portfolio in a Ministry. The Concise Oxford Dictionary meaning of "specify" is "name, express, mention definitely". Where the word specify or specified is used to describe a Minister in an enactment, it means, in my view, no more than the Minister named or referred to expressly or mentioned definitely in the relevant enactment. That Minister may be described or identified in the relevant enactment by reference to his ministerial portfolio, but he need not be, as long as he can be identified from the reference in the enactment.
The President is such a Minister who can, if mentioned by his office or title in an enactment, be so identified. In the context of Section 28(1) of the Interpretation and General Provisions Act, therefore, "where
by or under any written law any specified Minister       is empowered
to exercise any power or perform any duty," "specified Minister" must mean a Minister named, referred to or mentioned in the written law by which the power or duty is conferred. If some other expression were to be used instead of "specified Minister", it could be "the Minister mentioned therein". An interpretation which excludes any Minister as defined by law, only by reason of the fact that Minister may not be holding a portfolio of a Ministry, is, in my view, erroneous.
Support for the view expressed is derived from an examination of the occasions and the manner in which the word "specify" or its derivatives are used in the enactment under consideration. In Section 28(1) alone, apart from "specified Minister" in the second line describing the person from whom the power is transferred, the same expression is used in paragraph (a) to describe the Minister to whom the transfer is made. Then in line 6, the President "may specify" conditions, exceptions or qualifications to which the transfer may be made subject. In

paragraph (b) he may transfer the power to a Minister "without specifying which Minister". In paragraph (c), the transfer may be to a "specified public officer" or the holder for the time being of a "specified public office". In line 11, upon the transfer, "or from a date specified by the President" the transferee is obliged to exercise the power or perform the duty in place of the original Minister or public officer. Finally, it is quite clear that in line 2 where the expression "specified Minister" is first used, the expression which forms the subject matter of the dispute before us, the word "specified" governs not only the word "Minister" but the expression "public officer" as well. The parallel for that is found in paragraph (c) which shows that not only the person from whom the power is transferred but the transferee also may be a "specified public officer".
It would be extraordinary if in this short subsection the expression "specified" used in line 2 to describe the Minister alone should have the special meaning of a "Minister who holds the portfolio of a ministry" attached to it, when "specified", "specify" or "specifying" in the other cases identified do not. If, on the other hand, "specified", "specify" or "specifying" were to be construed as named", "described", referred to or "mentioned" in the one case or "name", "describe", "refer to" or "mention" in the other, the meaning so ascribed to the one word or its derivatives would be uniform and fit all the situations in which those words appear.
It is presumed that a word or phrase having different meanings used
in an Act has the same meaning throughout unless the contrary intention
is shown. Thus in Courtauld v. Legh (1869) L.R. 4 Ex. 126 at page 130
Cleasby B. said:
"        it is a sound rule of construction to give the same
meaning to the same words occuring in different parts of

ID
an act of parliament or other document". My examination discloses no evidence of an intention in the Legislature to give a different meaning to "specified" when used in describing "Minister"
i
in line 2 of the section.        i
Further support for the view I put forward is found in Section 30(1)
I of the Interpretation and General Provisions Act. It will be recalled !
that both Section 28(1), dealing with the President's power to transfer, j
and Section 29(1), dealing with his power to delegate, were subject i
to Section 30 of the Act. When we turn to Section 30(1) we find the following
i
provision:-      i
i
"30(1) The President shall not transfer or delegate the  |
exercise of any power or the performance or any duty -
(a)      conferred or imposed upon him or a Minister or a         j public officer by the Constitution; or         i
(b)      which he is expressly prohibited from trasfering         ! or delegating by any written law; or   j
(c)      of a judicial nature.    j
The fact that the President is expressly forbidden under Section 30(1)Ca) from transfering the exercise of any power conferred upon him by the \
Constitution presupposes that there are other powers conferred upon him i
i which he may properly transfer. If that were not the case, the enactment j
would not have bothered to refer to powers conferred on him. The construction
advanced for Section 30(1) is also consistent with the interpretation of
"specified Minister" used in Section 28 to include the President, which
is in accordance with the definition in Section 3(1).    j
At that time that the case came before us, the debate was over two I
propositions. As the argument went, in the first place, if the President
intended by his act in Statutory Instrument No. 12 of 1977 to transfer
power under Section 28(1) from a specified Minister, his purported transfer
was invalid as the power he transferred was vested in himself and he was I

j
i not a specified Minister in the terms defined by the learned Chief Justice.
On the other hand, if he intended to delegate a power vested in himself

j
| under Section 29(1), the delegation would be valid, so long as he had made j
•        i
| proper reference to the provision which gave him or supported his right
I to delegate. As he had, however, referred in Statutory Instrument No.
; 12 of 1977 to Section 28 of the Interpretation and General Provisions Act,
! the authority to transfer, and not to Section 29, the appropriate section i
!        i
; if a delegation was intended, the further question arose whether this Court j ! had power to correct the error, if error it be. Having regard to the view !
! that I take, I do not think the question arises. All that can be said
j        !
further, is that the reference to Section 28 in the Statutory Instrument j
i was not an error of the draftsman which we can consider as such. Clearly, j
i
i the President intended to transfer the powers referred to in the Instrument j
! and not to delegate them. If that is so, the line of enquiry suggested
; falls away and need not be proceeded with.     j
;        i
i Faced with the indication that our view of "specified Minister" in i
| Section 28 may be different from the view taken by the learned Chief
i        :
! Justice, learned Counsel for the appellant abandoned his original line '
of argument and submitted instead that under Section 47 of the Constitution,
the executive power of the State was vested in the President. He may
delegate this power but under no circumstance may he transfer any portion
of it. According to this submission, Section 28(1), in so far as it may
seek to empower the President to transfer any power vested in him, is
invalid, and Section 29(1) which deals with his power of delegation is
surplusage, as the power to delegate was inherent in Section 47 of the
Constitution.    i
This submission did not directly spring from the concerns of the learned

n
Chief Justice when he referred the questions to us. At least it did not come within his reasoning for thinking that the Statutory Instrument may
| possibly be invalid. However, his questions are broad enough to admit
I
! consideration by us of the submission.
! Section 47 of the Constitution provides that:-
'        "47(1) The Executive power of Botswana shall vest in the
i President and, subject to the provisions of this
' Constitution, shall be exercised by him either directly
I or through officers subordinate to him.
' (2) In the exercise of any function conferred upon
i him by this Constitution or any law the President shall,
unless it is otherwise provided, act in his own deliberate I judgment and shall not be obliged to follow the advice I tendered by any other person or authority.
! (3) Nothing in this section shall prevent Parliament from ; conferring functions on persons or authorities other than
the President."
j I do not think that this section alters the position I have advanced.
' In the broad constitutional allocation of State power between the
| legislature, executive and the judiciary, section 47 vests the executive
1 power in the President. The section does not say that all executive power
i must be exercised by the President named by office. Nor does it say that
i
! if he does not exercise such power directly, it must be exercised by
i
I delegation and by no other means. What the section does say, is that the
i
| executive power "shall be exercised by him either directly or through officerjs
i subordinate to him". I do not find a transfer of an administrative power
' from himself to a subordinate officer like the Vice-President, other
1 specified Ministers or public servants whom he appoints and removes,
' whose responsibilities he determines, whose responsibilities he may take
over at any time, as inconsistent with his exercising the executive power

i

i
!of the State "through officers subordinate to him". With respect to the
I
Vice-President, Section 49 states that:  I
"49. The Vice-President shall be the principal assistant
?

im
of the President in the discharge of his executive functions and shall be responsible, under the directions of the President, for such business of the government of Botswana (including the administration of any department of Government) as the President may assign to him." [emphasis mine]
j Similarly, with the Minister, Section 50(4) states that:
j "50(4) A Minister shall be responsible, under the direction of the President, for such business of the government of Botswana (including the administration of any department
i of the Government) as the President may assign to him."
': [Emphasis again mine]
|
j So that if the President transfers a power to the Vice-President or a
I Minister, its exercise is subject to the President's own direction. The
i
! position of other public servants is not any different.
! Further, if all executive power must be exercised by the President
i
; personally or in his name or only in his name by delegation, it is '. difficult to understand why Section 47(3) of the same Constitution ! reserves a power in Parliament to confer functions on persons or 1 authorities other than the President. Obviously the Constitution makes i this provision, in the knowledge that the exercise of such functions,
!
! if given to the Vice President, Minister or public servants, will be
i
I under the President's direction.
The Constitution, it will be noted says in Section 47(1) that the executive power shall be exercised by the President directly or through subordinate officers. That section does not use the word "delegation" or "delegate". However, where the Constitution wishes to provide for the exercise of a power by delegation only it does say so expressly. An
i
example can be found in Section 48(1) (2) and (3). That section provides: l
i
"48(1) The supreme command of the armed forces of the    |
Republic shall vest in the President and he shall        j
hold the office of Commander in Chief.   j
i
(2) The powers conferred on the President by subsection  I
(1) of this section shall include -

(a)      the power to determine the operational use of the armed forces;
(b)      the power to appoint members of the armed forces, to make appointments on promotion to any office in the armed forces and to dismiss any member of the armed forces.
(3) The President may, by direction in writing and subject to such conditions as he may think fit, delegate to any member of the armed forces any of powers mentioned in subsection (2) of this section." [emphasis mine].
In my view, this review of the Constitutional position gives no support to the argument put forward by learned Counsel.
An examination of the development of the allocation of functions under statutes clearly shows that immediately prior to the Independence of Botswana, the Constitutional Amendment (Adaptation of Existing Laws) Order, 1966 which was published on 23rd September, 1966, provided in detail for the adaptation of the then existing laws to make them appropriate for an independent Botswana. Obviously, in the absence at any time of complete knowledge of the details of government which may follow, a number of administrative functions which would today be allocated by legislation to specific Ministers or public officers were vested in the President. The Interpretation and General Provisions Act passed in 1973 gave power to the President to distribute the functions vested in him to such Ministers and public officers as he thought fit. By Statutory Instrument No. 12 of 1977, made when the passage of time would have settled the size and areas of responsibilities of various organs and institutions of government, some of the powers put in the President's name by the by the 1966 Order were transferred to "the respective Ministers within whose portfolios such laws fall." In a one-off operation, he put the exercise of those functions in the hands of the responsible Ministers. As I have demonstrated, under the Constitution, the discharge of the Ministers'

on
I offices is subject to the direction of the President. So that the transfer
| so made was not in conflict with the Constitution. Had the respective
i
| enactments been passed in independent Botswana, I have no doubt that
f
j those Ministers would have been the functionaries to whom the enactments
i
iwould have assigned these powers. In my opinion, the President's
: exercise of the powers in Section 28(1) of the Interpretation and General
j
! Provisions Act merely completed the tidying up process in the statutes
i
j which began with the 1966 Order.
j
j I have had the opportunity of looking at some of the statutes, other
! than the Habit-Forming Drugs Act, which were affected by Statutory
: Instrument No. 12 of 1977. There seems to me no constitutional or
I administrative reason why those functions should remain in the name of
: the President. In a constitutional order, such as in Botswana, where the
' President exercises the executive power of the State through and with
i
! the assistance of Ministers and public officers whom he controls, I fail
i to appreciate what constitutional rectitude requires that these detailed
I
j administrative functions, including the approval of the conveyance of
| dead bodies in and out of Botswana,    should be specifically assigned only
j to him.
In the result, I now state the   questions put to us by the learned
i Chief Justice and answer them. The     questions are:
| "(i) Whether the transfer of power to the Minister of the powers under the unamended Section 15 of the Habit-Forming Drugs by Statutory Instrument No. 12 of 1977 was, and is valid;
(ii) Whether the declaration made by the Minister of Health in Statutory Instrument No. 36 of 1982 declaring the substance "methaqualone (BP) otherwise known as mandrax" and other substances as habit-forming drugs was, and is valid;
?

EH
!        (iii) Whether it is a criminal offence under the Habit-
:        Forming Drugs Act (Cap. 63:04) to possess (or do
any of the prohibited acts specified in Section 3
i        of the Act in relation to) the substance
•        "methaqualone (BP) otherwise known as "mandrax" or
|        any of the other substances listed in Statutory
|        Instrument No. 36 of 1982."
The answer to all three questions is in the affirmative. I must
express my appreciation for the assistance given this Court by the
carefully drafted heads of argument and able argument in Court of Counsel.
Delivered in Open Court in Lobatse this 23th day of June 1990.
A.N. E. . AMISSAH Judge President
AGUDA J.A.:
Introduction   !
         i
I have been priviledged to see the Judgment of my learned brother,      j
the President of this Court, and with all due respect I do agree with the       i

final conclusion reached in that Judgement. I however feel constrained  i
i
to add this short judgment of mine since I would wish to approach the main      ;

issue in this case from a somewhat different angle and because of the
importance of the Constitutional issues raised before us. All the facts
and circumstances have been very clearly set down in that Judgment, and
I do not for that reason think that it is necessary for me to set down   i
those facts and circumstances here again save for those that I consider         |
         i
vital to a clear understanding of this Judgment.        i
         j
Questions for Determination      I
i
The questions which were referred to this Court by the learned Chief     j
         !
 Justice are as set down in the Judgment of the learned President, but I
         ,
consider it necessary to repeat them here. They are as follows:         ;

20
"(i) whether the transfer of power to the Minister of the powers under the unamended section 15 of the Habit-Forming Drugs Act by Statutory Instrument No. 12 of 1977 was, and is valid;
(ii) Whether the declaration made by the Minister
of Health in Statutory Instrument No. 36 of 1982 declaring the substance "methaqualone (BP) otherwise known as mandrax" and other substances as habit-forming drugs was, and is valid;
(iii) Whether it is a criminal offence under the Habit-Forming Drugs Act. (Cap. 63:04) to possess (or do any of the prohibited acts specified in Section 3 of the Act in relation to) the substance "methaqualone (BP) otherwise known as mandrax" or any of the other substances listed in Statutory Instrument No. 36 of 1982."
In my view these three questions resolve themselves into only one, namely, whether the purported transfer of the power to declare a substance a habit-forming drug made by the President to the Minister of Health under Statutory Instrument No. 12 of 1977 is valid. Once it is valid the answer to each of the three questions must be answered in the affirmative. On the other hand if the purported transfer is null and void then the answers to the three questions must be in the negative. The Habit-Forming Drug Act
The first proclamation which deals with the question of prohibition
of habit-forming drugs was enacted in 1922. Section 16 of the Proclamation
says -
"The resident commissioner with the approval of the High Commissioner may by notice in the gazette declare that any substance other than those defined in Section two shall be a habit-forming drug within the meaning of this proclamation; or that any of the substances defined in Section two shall no longer be deemed to be a habit-forming drug within the meaning of this proclamation; or may amend any of the definitions therein contained; and the provisions of this Proclamation shall apply to the definitions contained therein as altered by such addition, omission or amendment."
At that time enacted legislation was Proclamations made by the

High Commissioner who exercised both the executive and the legislative powers. This country became a self-governing Republic with an Executive President with effect from September 30, 1966. As part of that process the Constitutional Amendment (Adaptation of Existing Laws Order), 1966, Legal Notice No. 84 of 1966 was made, and was to take effect also from September 30, 1966. It is an admitted and uncontroverted fact that by virtue of Section 3 of that Order, the President of the Country acquired the power given to the High Commissioner under the Proclamation (which by the same date was to be referred to as "Act"), sections 3, 4, 5, 6, 7, 9, 10, 11, 13, 15, 16 and 17. Only two of these sections are necessary in this case, and these are Sections 3 and 15. Section 3 prohibits the possession of certain drugs and lays down the punishment in respect of the possession of such drugs. Section 15 which replaces Section 16 of the old Proclamation empowers the President by notice in the Gazette to declare any substance a habit forming drug the possession of which as stated earlier would be an offence under Section 3, and punishable under the same Section.
This continued to be the position until 1977 when by Statutory Instrument No. 12 of 1977 the President purported to transfer his power under the Habit Forming Drug Act, Section 15, among others to the "Ministers within whose portfolios such laws fall." It is common cause that in this case it is the Minister of Health. Subsequently in 1982, the Minister by the Declaration (Extension of List) of Habit-Forming Drugs Order 1982 (Statutory Instrument No. 37 of 1982), added to an existing list of drug prohibited under Section 15 of the Act, the drug "methaqualone (BP) otherwise known as Mandrax". The appellant was charged and convicted for being in possession of this particular drug.

It is clear from above that if the purported transfer of power under S.l 12 of 1977 is null and void and of no effect as argued by the appellant in this case, then obviously the conviction of the appellant could not stand. This Judgment is concerned only with this problem. Statutory Instrument No. 12 of 1977
Statutory Instrument No. 12 of 1977, headed "Transfer of Powers" and purpotedly made under The Interpretation and General Provisions Act (Cap. 01.02), Section 28, says that "His Excellency the President hereby transfers the exercise of the powers or the performance of the duties, as the case may be, conferred on him" by the Habit-Forming Drugs Act, Section 15 (and others) to the Minister within whose portfolio the matter falls, in this case the Minister of Health. It was in furtherance of that transfer that Statutory Instrument No. 37 of 1982 was made by the Minister. The Interpretation and General Provisions Act (Cap. 01.02)
At this stage I consider it necessary to set down the relevant provisions
of the Interpretation and General Provisions Act, and they are as follows:
"28. 1. subject to the provisions of section 30, whereby or under any written law any specified Minister or public officer is empowered to exercise any power or perform any duty, the President may transfer the exercise of such power or the performance of such duty, subject to such conditions, exceptions or qualifications as the President may specify to
a.       a specified Minister;
b.       a Minister, without specifying which Minister; or
c.       a specified public officer or the holder for the
time being of a specified public office;
and thereupon or from a date specified by the President the transferee shall exercise such power and shall perform such duty in place of the Minister or public officer originally so empowered.
2. Where a transfer is made under this section the written law in respect of which it is made shall be read and construed in respect of any time on or after the date upon which the transfer has effect as if the written law were amended in conformity with the transfer:

23
Provided that nothing in such transfer of this subsection shall affect the validity of the delegation by a previous holder of any such power or duty but the same shall continue of force and effect as if the power or duty had been delegated by the current holder of the power or duty until revoked by an authority having power in that behalf or until it expires.
29. 1. Subject to the provisions of section 30 where by or under any written law the President is empowered to exercise any powers or perform any duties he may delegate to any person by name or the person for the time being holding the office designated by him to exercise such powers or perform such duties on his behalf subject to such conditions exceptions or qualifications as the President may direct and thereupon or from a date specified by the President the delegatee shall perform such powers and shall perform such duties."
Appellant's arguments
Mr. Pilane who appeared for the appellant challenges the validity
of Statutory Instrument No. 12 of 1977. Among other points made by
learned Counsel, he argues in his Heads of Argument (and orally before
us) that -
"18. As the exercise of the function under section 15 of
the Habit Forming Drugs Act (Cap. 63:04) vests in the President, it is not transferrable under Section 28 and any purport to so transfer it to any one else is ultra vires and is invalid ab initio and is to be read as pro non scripto. 19. It is quite plain that Section 28 gives the President what is ordinarily a power of the legislature to amend a written law. The effect of transfer under that section of power is the same as transfer of such power by Parliament by process of legislative amendment."
He submits that a transfer under Section 28 has the result, by virtue
of subsection (2) of the Section of amending the written law and as from
the date the transfer is effective, the appropriate legislation is to
be read as amended to vest the function in the transferee. Learned
Counsel further submits that Section 28 gives the President what is
ordinarily a power of the legislature to amend a written law. The
effect of transfer of power under Section 28 is the same as transfer

I of such power by Parliament by process of a legislative amendment.
j Respondent's arguments
j
\         The Attorney-General in the Heads of Argument filed by Mr. Baruti

says that "the President never held any power under Section 28. Held ; powers under Section 29" of the Interpretation and General Provisions ; Act. He argues further that as the provisions of Section 28 and 29 "bear
a very close relationship" and "given also that the two sections appear I on the same page it can reasonably be said that instead of writing down
i Section 29 which is the correct Section        the draftsman's pen
| slipped and put down 28". He therefore asks this Court to do the
| necessary substitution "as this substitution will not prejudice
I
I the appellant in any way." He urges this Court to take the position that | S.l 12 of 1977 "was transferring powers vested in the President under ! Section 29 and not Section 28. He continues thus: "Prosecution humbly
i
; prays that the Honourable Court do violence (Sic!) and read Section "28" j as "29" to bring about a reasonable result consistent with the legislature' I intent." The final submission of learned Counsel is that this Court should | bear in mind "Public Policy consideration." The drugs are addictive and ! their consequences are very harmful argues learned Counsel. "It is ! therefore in the public's (Sic!) interest that it has to be protected from
| such a destructive force." A ruling that S.l. 12 of 1977 is invalid "would
i
| mark the beginning of the destruction of the Botswana Society," finally I submitted learned Counsel. It is clear that what the respondent wants this Court to do is to decide whether the President had the power under
Section 28 to have made the transfer; or that if he did not have that power
i i
j whether this Court can amend Section 28 appearing under S.l 12 of 1977
i to read Section 29.
i
?

[25]
A Consideration of the respondent's arguments
Not one of the arguments proferred by the respondent has found favour with this Court. They are so untenable that they can be dismissed summarily. I shall deal with the last argument first. Where the language of a Statutory provision is clear, it has never been the practice of this or of any other Common Law Court to over-ride the provision on "public policy consideration". If society is to be protected against any harmful acts of persons which the State encompassed in that society it is for the legislator to make laws in clear and unambiguous language prohibiting such an act. If Statutory Instrument No. 12 of 1977 is invalid, the legislator has within its powers the means of effecting immediate correction of the situation retrospectively, if needs be. The Judiciary must never attempt to take over the powers of the legislator - it must confine itself within the sphere of the government allocated to it by the Constitution. As rightly submitted by Mr. Pilane, the Court is not expected to base its decision on any public policy: its function is only to declare the law: van Heerden v. Queens Hotel (Pty.) Ltd. 1973 (2) AD 14 at 16.
The other two arguments can be dealt with together. It is not the duty or function of this Court to re-write S.l. 12 of 1977 by altering ; "Section 28" to read "Section 29". The intent of the Government functionary who made the Statutory Instrument was clearly stated as the Heading of the Instrument, and it was "Transfer of Power". The Marginal Note to Section 28 is "Transfer" and that of Section 29 is "Delegation of Functions". The Instrument, itself says that "in exercise of the powers;
conferred by Section 28 of the   Act, His Excellency      hereby
transfers the exercise of the powers     " It is certainly not part
of the functions of the Court to re-write this to read that "in exercise
n

ra
of the powers conferred by Section 29    His Excellency hereby
delegates        " and to re-write the Heading as "Delegation of Powers."
One Issue for determination
One important issue for determination even at this juncture is whether
the President could legally make a transfer to some other persons of certain
powers and functions allocated to him by the Constitution. One argument
which was forcefully made before this Court is that the President could
not transfer to any other person any of his Executive powers as laid down
under the Constitution, Section 47. The relevant provisions of the
Constitution are as follows:
"47. (1) The executive power of Botswana shall vest in the President and, subject to the provisions of this Constitution, shall be exercised by him either directly or through officers subordinate to him.
(2)      In the exercise of any function conferred
upon him by this Constitution or any other law the President shall, unless it is otherwise provided, act in his own deliberate judgment and shall not be obliged to follow the advice tendered by any other person or authority.
(3)      Nothing in this section shall prevent Parliament
from conferring functions on persons or authorities other
than the President."
One has to determine this issue by employing certain techniques of
Constitutional construction, and it is these that I now wish to direct
attention.
Canons of Constitutional Construction
In recent years many Courts in the English speaking world have arrived
at the conclusion tht Constitutions are not, speaking generally, to be
construed in the same way as ordinary statutes (See Chester James Antieau,
Constitutional Construction, (Oceana, N.Y., 1982) p. 51). The United States
Supreme Court in United States v. Classic (1941) 313 US 299; 85 L Ed. 1368,
at 1378 speaking as regards judicial construction of the United States
n

E
| Constitution said:
I
I        "We read its words, not as we read legislative codes which are
i        subject to continuous revision with the changing course of
|        events, but as the revelation of the great purposes which were
!        intended to be achieved by the Constitution as a continuing
! instrument of government."
| And in Knight v. Shelton (ED Ark 1905) 134F 423, at 426, the Supreme Court
; of Arkansas State said
; "If....the words convey a definite meaning which involves ! no absurdity, and no contradiction between parts of the same writing, then the meaning apparent upon the face of instrument is the one which alone courts are at liberty to say was intended to be conveyed. If there is no 1 ambiguity in the language used, there is nothing to be construed, and Courts must follow the letter of the Constitution."
! In England, Lord Diplook in Hinds v. The Queen [1976] 1 All E.R. 353, at
, 360 said that -
"To seek to apply to constitutional instruments the canons : of construction applicable to ordinary legislation in the
field of substantive criminal or civil law in their Lordship's view, be misleading."
I In the Australian case of Attorney-General for New South Wales v.
; Brewery Employees Union (1909) 6 E.L.R. 469, at 619, Higgins, J. warned
I that we must "remember that it is a constitution a mechanism under which
)        '
;        t
: laws are to be made, and not a mere act which declares what the law is         '
! to be." This position was given approval by the High Court of Australia
. in The Bank of New South Wales v. The Commonwealth (1947 - 1948) 76 C.L.R.I :
i        ;
! at page 332, per Dixon, J. In its turn the Supreme Court of Nigeria adopted'
I this same approach in Nafiu Rabiu v. The State [1981] 2 N.C.L.R. 293 at
j p. 327. In that case Sir Udo Udoma, JSC, has earlier said at page 326
of the Report -
"I do not conceive it to be the duty of this court so to         '
construe any of the provisions of the Constitution as to j defeat the obvious ends the Constitution was designed to
?

(28]
serve where another construction equally in accord and constistent with the words and sense of such provisions will serve to enforce and protect such ends."
Professor Basu of India in his book Limited Government and Judicial Review
(1972) at page 353, says that -
"The rules of statutory interpretation have to be modified in their application to a constitution, having regard to the nature of the instrument to be interpreted."
Flowing from all these is my view that this court must interpret the Constitution of this country in order to give effect to basic governmental arrangement envisaged by its framers. A vital part of that arrangement is the creation of an Executive Power save any forbidden to him by the Constitution or by the Legislature acting under and in accordance with the provisions of the Constitution. This Court must not construe any of the provisions of the Constitution in a way which will defeat that vital part of the governmental organisation.
I must stress that the excursus to the attitude of the Courts of other
countries which I have made and which I may make later in this judgment
is merely for guidance. What this Court has to do is to interpret the
provisions of this Constitution as they are; but I accept to be guided
by the attitudes of the highest and other Courts of other lands as already
set down. In addition I wish to make reference to Okanogan Indians v.
United States (1929) 278 US 655; 73 L. Ed. 894 where the Court said at
page 898 (of the Lawyers Edition Report):
"The words used in the Constitution are to be taken in their natural and obvious sense, and are to be given the meaning they have in common use unless there are very strong reasons to the contrary."
See also London and North Eastern Railway Company v. Berminan [1946] 1
All E.R. 255, at 260 (H.L.).
The Construction of Section 47 of the Constitution
?

Now one important thing which this Court has been called upon to construe in this case is the provisions of Section 47 of the Constitution which I have set down fully earlier in this judgment and for that reason I do not think it is necessary to repeat them here. It appears clear to me that both the language and the intent of the provisions of that Section are clear. This country has an executive President and the Constitution rightly vests in him the executive powers of the State. He is obliged to exercise such powers either directly by himself or through officers subordinte to him. The vital question which this Court must answer is whether acting "through officers" includes transferring such powers to officers subordinate to him. After giving this problem very deep and anxious consideration, I have regrettably found it extremely difficult to accept the proposition that the President can be held to be acting through an officer to whom he has transferred his powers. In ordinary language "through" means "by means of", and "transfer" means "to give the ownership of (property) [power] to another": Longman Dictionary of Contemporary English (1984). Similary The Chambers 20th Century Dictionary (1983) gives the meaning of "through"
as "by means of", and the meaning of transfer as "to convey from one     ,.
person   to another: the change over." In K.J. Aiyer's Judicial Dictionary
(8th ed., 1980) "transfer" is defined as "the making over to another, the documents by which property, shares in Public Companies, etc., are made over to another."