Gaborone High Court Judge Michael Mothobi says President Dr Mokgweetsi Masisi is untouchable in as far as Section 41 (1) of the Constitution of the Republic of Botswana is concerned.
Justice Mothobi stated this in his judgement this week Wednesday in the case in which Dr Masisi’s immunity was tested in a case in which his legitimacy as President of Botswana Democratic Party (BDP) was challenged by Kamal Jacobs.
Jacobs has argued that Dr. Masisi is not the substantive President of the BDP and as such did not and does not have powers to appoint committees of the Central Committee including the BDP Appeals Board Committee chaired by Kinsley Sebele in terms of Article 33 of the BDP Constitution.
Jacobs is one of the losers in the Lobatse Constituency which was won by economist Thapelo Matsheka. Matsheka was up against Ahmed Shabbeer Ishael, Kamal Jacobs, Patrick G. Kebailele, Sadique Kebonang (incumbent) and Lone Lincoln Bome. In the 25th August 2018 Bulela Ditswe results Sadique Kebonang got 1073, Lone Bome 66 votes, Ahmed Shabeer Ishmail 317 votes, Patrick Matlhodi 218 votes, Kamal Jacobs 1219 votes and Thapelo Matsheka won with 1376 votes. Jacobs’ attorney Kagisano Tamocha argued before Justice Mothobi that Section 41 (1) of the Constitution of Botswana is not applicable in their case because they are talking about the presidency of the BDP.
Section 41(1) states “whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her either in his or her official capacity or in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her in respect of anything done or omitted to be done in his or her private capacity.”
Justice Mothobi said the Gomolemo Motswaledi 2009 case sets a good precedent and he had to apply it in the current case. The judge agreed with the respondents in the case that the sitting president is immune in both criminal and civil proceedings. He also agreed with the respondents that both the current case and that of Motswaledi are similar because they involved an action by the president in his or her private capacity.
“I agree entirely with the reasoning of the respondents. The Motswaledi case holds good precedence and I apply it here. The objection raised by the respondents in point in law is accepted. The decision by the High Court followed by the Court of Appeal in the Motswaledi case speaks the same language,” said the judge.
Bogopa of Bogopa, Manewe, Tobedza and Company representing Dr Masisi, BDP, BDP Electoral Board, Appeals Board and BDP Southern Region told the court earlier that in accordance with the section Dr Masisi is immune from the suit and he should have not been cited in the case.
He said it is not disputed that Dr. Masisi is the sitting president and as such no criminal or civil suit should be instituted against him. “The interpretation of this section has been done by both the High Court and the Court of Appeal in the 2009 Gomolemo Motswaledi case. The two cases are not distinguishable.
The current case is a civil application in which a relief is sought against Dr Masisi about something he has done in his private capacity as a member of the BDP. Both High Court and Court of Appeal have proved that actions taken by the president in his or her private capacity- no civil proceedings could be instituted against him or her,” said Bogopa.