Thursday, October 22, 2020

A rejoinder to my article on the President’s wish to waive Presidential Immunity

By Adam Phetlhe 

I wrote an article titled ‘Presidential Immunity is expressly permitted by law but…’ that was carried by The Telegraph newspaper dated February 6, 2019. The beauty about provoking a debate on any subject matter is that someone will objectively respond to share his/her views on such subject and in the process offering divergent and enriching views. In this instance, I received a response from a reader who is a legal scholar and whose views I feel obliged to share with the readership. I must state upfront that at the time of writing this article, I could not raise the said reader to find out if he is comfortable with his name revealed herein. Kindly bear with me on this point.

I argued that while presidential immunity is expressly permitted by law, such law does not seem to suggest that it can be waived and that it is debatable. The reader on this point agrees with me by saying “I agree with you that nothing suggests it can be waived. To me, however, it is not debatable. It cannot. Nganunu CJ, in his judgement in Motswaledi case made it clear that it is ‘TOTAL’. In other words, there are no exceptions. See in particular paras 30 and 40. He calls it a prohibition)”. Nganunu CJ held at paragraph 40 of the above judgement that “…In summary therefore, the Constitution has granted to a sitting President of the Republic of Botswana immunity granted against criminal prosecution for all activities done both in his private and official capacities….Such immunity is total and not relative. It is granted in the form of a prohibition-in a mandatory fashion…”  (My emphasis).

Now that Nganunu CJ has made it abundantly clear that the President cannot waive his Presidential Immunity because it is total and prohibited, I asked the reader if he thought the President had sought legal advice as to whether he could waive such immunity given this judgement. He answered thus “I doubt he sought legal advice. As you rightly pointed out, it was more of political posturing!” The question I am still grappling with is: why did the President make such a statement without first finding out from the Attorney General if indeed it was permissible in law that he could waive presidential immunity ‘willy-nilly? The answer could still point more at political posturing than anything else. I am looking forward to the Attorney General clarifying this matter if ever.

On the issue of whether the President wanted to resign in order to clear his name in the National Petroleum Fund (NPF) scandal and that this was rejected by his erstwhile boss Rre Ian Khama, the reader says “I have always marvelled at this kind of argument. Was he asking Khama whether he should resign or telling him? I cannot see anyone stopping you when you are bent on going. If he persuades you, he is not refusing but you changed your mind. Ndelu left despite Khama’s ‘refusal’”. Ndelu and to those who may not know is the former Minister of Justice and Security Rre Dikgakgamatso Seretse who resigned from cabinet when he faced corruption allegations back then. The point here is that if indeed the President was determined to resign, nothing stopped him from doing so. It is known however that he couldn’t because he would have foregone the lifetime opportunity of becoming President.

Another aspect of my article the reader commented on is the issue of the President subjecting himself to ‘judicial processes’ given that he was ‘personally hurt and touched’ by the scandal. He asks pointedly: ‘What was he to do? Ask them to charge him? He was interviewed by DCEC.’ I have argued before that at the very least, the President could have sued those who alleged that he had indeed received the P 3 million from the NPF cash heist. In this way, facts would have been put on the table to implicate or exonerate him. Beyond just saying he never benefitted from the heist, the President has not in my view done anything fundamental to disprove the alleged receipt of those funds.

The article also raised the argument that had the law on the Declaration of Assets and Liabilities been in place, it would have helped the President to clear his name in the NPF scandal because all figures and facts would have been there to implicate or exonerate him like I have already said. The reader says “I do not see how Masisi could have used it to clear his name. The money was not sent to him direct, though it was meant to assist him, but through lawyer’s trust account. So it will be reflected in his campaign records, but not as his assets. He cannot declare it….he will simply argue that he was not aware of the source and many different people were involved. See Ramaphosa and Trump.” The question is: now that he is aware, will he return the money? I partly and grudgingly agree with the reader that while ‘he was not aware of the source…’, is it not his duty to personally ensure that funds contributed to his campaign account are properly accounted for given that money has negatively tainted the complexion of politics here and elsewhere and that trust funds are increasingly being used by politicians amongst others for nefarious reasons. Powerful individuals in politics seem to get an unfair advantage of funding over the less connected ones from powerful business moguls whom they are more often than not prepared to divulge their identities let alone the businesses they run. If for argument sake funds contributed to the President’s campaign account were sourced from corrupt activities, it should follow that he wouldn’t reveal their identities for obvious reasons. President Cyril Ramaphosa is currently embroiled in a scandal of ‘blood money’ (R 500,000) allegedly contributed by  faceless individual(s) to his campaign account during his campaign to become ANC President in 2017. Ramaphosa has appeared before the Public Protector to explain himself on the money trail of this donation. The Public Protector has promised to make a finding on this matter in three months that would be binding on Ramaphosa unless he challenges it by reviewing it in court. Not so in Botswana and thanks to Section 41 that is the origin of presidential immunity.

It was suggested in Without Fear or Favour that even if the President were to be investigated for the alleged receipt of tainted funds from the NPF scandal, would such investigation be firstly credible and secondly whether investigators could muster the courage to investigate their political boss given that such investigators are personally appointed by him and housed in his offices. The reader says ‘…Sometimes it is an issue of integrity of those appointed to do the job. The Robert Muellers, Madonsela, Ken Starr, can do it. Rona tota re palelwa ke eng?’ (What fails us to do the same as do these people). I agree with the reader. But what puts people like Thuli Madonsela poles far apart from what we get here is the legal frameworks under which our institutions are structured. They create an environment where people are likely to be susceptible to being overly loyal to the appointing authority than to the Constitution because they serve at such appointing authority’s behest. In the process, integrity becomes secondary and inconsequential. That is why one could argue, the results and progress if any of the interview by the DCEC on the President back then when he was still the Vice President may never see light of day. And this because the legal frameworks of our institutions almost if not suggest ‘there is no adequate protection of the structural, operational and institutional independence against political, executive and any other form of interference’ as someone once said.

Without Fear or Favour would like to sincerely thank the dear reader for his engagement on the subject matter and look forward to further engagements. That said, I still hold the view that the President is on a fishing expedition probably with a big hole in the fishing net on the Presidential Immunity matter unless and until I am fully persuaded otherwise. In the meantime, it appears the Presidential Immunity brouhaha has gone belly up. Reinhold Niebuhr, that Theologian-cum-Philosopher said “God grant me the serenity to accept the things I can change; courage to change the things I can; and the wisdom to know the difference.” Judge for Yourself!

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