Monday, July 4, 2022

Appeals court upholds presidential immunity

A special sitting of the court of Appeal has distanced itself from making a pronouncement on whether President Ian Khama’s decision to suspend Gomolemo Motswaledi was valid.

A panel of court of Appeal judges made up of Nicholas McNally, Craig Howie, Seth Twun, Michael Ramodibedi and John Foxcroft brought to an end Motswaleid’s legal battle with President Ian Khama after they held that Khama could not be sued because he enjoys total immunity from criminal and civil suits.

Motswaledi, who was suspended from the party, was seeking reinstatement and to be declared the party’s parliamentary candidate at Gaborone Central.

The court in unison agreed that section 41(1) granted Khama immunity, stating that the wording of the said provision were clear and unambiguous.

The judges said that they did not agree with Motswaledi’s lawyer Roland Sutherland on his contention that section 41(1) was in conflict with the general democratic nature of the country’s constitution as read as a whole.

The court said that countries over the world offered their heads of states immunity.

“They are all justified on the basis that it is in the public interest that the democratic good (equality before the law) should in this instance accommodate another good (that the head of state be not impeded in the execution of his duties in the service of that democracy).

The judges stated that Sutherland in his argument sought to suggest that other than acting in his official capacity and private capacity, there was a third category of capacities in which a President could act.

“We do not think we are at liberty to create a third category of capacities when the constitution speaks only of two, “reads the judgement.

The court stated immunity was there to insure that the president, while carrying out his duties, is not embarrassed by dealing with lawsuits and civil claims.

“The meaning of section 41(1) is that when the President acts in a capacity other than his capacity as head of state ,his act is to be categorised as an act in his private capacity,” the judgement states.

Dismissing Sutherland’s plea for the court to compare immunity under section 41(1) with that of other countries, the court said that it was not its duty to re-write the Botswana constitution.
“The meaning of subsection 41(1) is perfectly clear. We have no mandate to amend it,” stated the Court of Appeal.
The court also stated that it could not grant Motswaledi relief against the BDP which was listed as the first respondent because his wholly case was aimed at Khama.

“We accordingly express no opinion as to whether the suspension was justified or as to the merits of the dispute in any other respects,” the judges said.
Outside court, as he addressed his followers and members of the public who had gathered to listen to the judgement, Motswaledi said that it was the end of the road for him and he thus had to accept the outcome of legal process.

“Nobody has not seen that the constitution needs to be looked at. Even the BDP constitution needs to be looked at,” Motswaledi said just outside court a few minutes after the judgement was delivered.

Meanwhile Motswaledi will on Sunday appear before a disciplinary committee appointed by Khama to answer to charges following a complaint launched by Shaw Kgathi.


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