Saturday, September 26, 2020

BNF on Constitutional Review & Presidential Immunity

Sometime last year, there was a legal case involving the Botswana Democratic Party (BDP) president who is also the state president and a prominent BDP functionary in which the latter took the BDP and the state president to court.

The applicant, amongst other things, wanted the courts to reverse his suspension which disqualified him┬áfrom representing the party during national elections. He was the party’s parliamentary candidate before he got suspended. Besides the collateral damage where the applicant’s prospect of a parliamentary seat were shattered, this case helped the nation come out of a slumber by exposing short comings in our constitution, particularly with regards to immunity enjoyed by the state president.

Some ruling party members, either sympathetic to their cadre or coming alive to the danger and possible abuse of this absurd constitutional provision, have been motivated to push for a holistic constitutional review (including the provision on immunity for the sitting president). This move is quite necessary but it is very important that the review of the constitution provides sustainable solutions and addresses the current shortcomings on presidential immunity over and above ensuring that what happened to the former BDP Secretary General or worse does not happen again.

In as much as we subscribe to the principle of immunity for the benefit of sitting president, it is essential to ensure that there is some element of over-sight to ensure that this constitutional provision is not abused for personal interests. This will assist in ensuring accountability on the part of the sitting president. In the light of this, it will serve the country better if a “limitation clause” is introduced to the constitution to┬álimit the president’s immunity from prosecution. This will be to curb┬á situations whereby the sitting president makes decisions and acts in bad faith and against national interest with the knowledge that there will be no┬ároom for┬álegal recourse on┬áhis/her actions.

Absolute presidential immunity is one of the reasons why some African presidents are manipulating electoral processes in order to hold on to state power because they are aware that once this is lost and they vacate the state house, they will be exposed to legal actions which have been shielded by  flimsy constitutional provisions. The limitation clause, once included in the constitution, will avoid a situation where a sitting president is incentivised into eternally holding on to power with the knowledge that cessation of power will break the prosecution proof wall.  

If we are to avoid this route (holding on to power for fear of prosecution) synonymous with African leaders, it is essential to have a limitation mechanism so that exemption from normal processes of the law can come to the rescue of the president only in cases of national interest and where the president wronged in his delegatory role and in execution of duties inherent with Office of the President.  
Due to the unfortunate short term view approach by the few ruling elite and the personalisation of government institutions, any such suggestions which are necessary to align our country with global governance reforms, are seen as a direct attack on the current president. It is essential for the long term benefit of the country to detach the current president from this opinion.

When we talk about reforms we should not look at sectional interest but what can take our country forward.

The president also has to assist to ensure that we come up with a constitution that ascertains that other leaders who will come after him do not hide behind this constitutional provision and abuse their powers.

This should be seen as a project aimed at securing our country’s future.┬áHe also has to support┬áthese reforms aimed at curbing excesses on his part as well as during and after his term of office.
As leaders, we should make laws that limit our actions. After all, we are all human and can be led astray by personal interests.┬áA wise man once said, “power corrupts but┬áabsolute power corrupts absolutely”.

In our human nature, without something to limit us, our unlimited power can and will corrupt us absolutely.
 
*Moeti Mohwasa is BNF Information and Publicity Secretary

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Sunday Standard September 27 – 3 October

Digital copy of Sunday Standard issue of September 27 - 3 October, 2020.