BDP constitution on trial

Nicholas Mokwena - BG reporter
Monday, 14 January 2019
BDP constitution on trial

Section 41 (1) of the Constitution of the Republic of Botswana does not give President Dr. Mokgweetsi Masisi immunity in a case in which his legitimacy as President of Botswana Democratic Party (BDP) is being challeneged, Kamal Jacobs’ lawyer has argued.
Jacobs argues 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 Central Committee including the BDP Appeals Board Committee chaired by Kinsley Sebele in terms of Article 33 of the BDP Constitution.

Jacobs lost the BDP’s parliamentary primary elections for Lobatse Constituency to 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 this week before High Court Judge Michael 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.”

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. Otlaadisa Kwape of the Attorney General also concurred with Bogopa that in accordance with the section and its interpretation by the highest court in the land the sitting president is immune from any litigation.

Attorney General has joined in the  case as Amicus Curie (Friend of the Court). Kwape told the court that therefore the application against Dr. Masisi should be dismissed. However, Tamocha representing Jacobs argued that the section is not applicable in the present case. He told the court that there is a difference between the current case

and the Motswaledi case as cited by the respondents. He pointed out that in the current case they are not asking the president to perform anything.
“Section 41 (1) is not applicable in this case because no one is claiming anything from or against Dr Masisi. This is a point of departure from the Motswaledi case. All what we are asking is for court to arrive at a finding as to whether Dr Masisi is holding the office of the presidency of the BDP in accordance with the BDP constitution.
“We are challenging his legitimacy as President of the BDP. Dr Masisi is a beneficiary of automatic succession in terms of the constitution of Botswana. However, the constitution of the BDP does not provide for automatic succession. Our interpretation of Section 41 (1) is of electoral importance,” said Tamocha.
 At this point Justice Mothobi pointed to the attorney that his client is seeking relief against the president and others. Tamocha indicated that Section 41 should be read in its entirety and not in part. He argued that if Section 41 (1) was to be held to be applicable in the current case it would be a recipe for disaster, a human calamity.
He stated that the Motswaledi case is not applicable because the facts of the two cases are not the same and in the Motswaledi case no question of legitimacy was raised and such interpretation in the current case would be overreaching.
Section 41(2) states “where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the term of any person in the office of President shall not be taken into account in calculating any period of time prescribed by that law which determines whether any such proceedings as are mentioned in subsection (1) of this section may be brought against that person.”
Tamocha further argued that an interpretation followed as in the case of Motswaledi is not for public good as provided for by Section 26 of the Interpretation Act, in that such decision would be denying members of the BDP their democratic right of electing their leader if they cannot question their leader’s legitimacy.
Regarding the citing of former President Ian Khama both Bogopa and Kwape argued that he should be struck out of the proceedings. Bogopa stated that no decision should be made regarding Khama because he was not in court to speak for himself.
“He has not deposed an affidavit and what would be said would be tantamount to hearsay. There is nothing in the court papers that says that Dr Khama is incapacitated and cannot sue someone to protect his rights and empowerment. He could have at least been cited as a co-applicant and not a respondent,” he said.
Tamocha told the court that Dr Khama is important in the current case and that as much as no relief is sought against him, he remains important to the case. Dr Khama can deny or agree that he is the substantive president of the BDP.
“I can confirm that service of court papers was done on the 3rd respondent (Dr Khama) on the 19th December 2018. Proof of service is by way of an affidavit by one Tebagano Lebotse. It was filed with the court on Monday this week. This case is brought here in good faith and not meant to embarrass anyone. It is meant to get clarity on the legitimacy for Dr Masisi to hold office of BDP presindency,” Tamocha said.
Justice Mothobi would deliver judgement next week Wednesday.

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