Wednesday, October 21, 2020

Court throws Motswaledi appeal out

“The application was destined to fail and was correctly dismissed,” ruled the Court of Appeal in the case between Gomolemo Motswaledi and the first respondent, the Botswana Democratic Party.

The Court of Appeal ruled on Friday at the judgment that they express no opinion as to whether the suspension was justified, or as to the merits of the dispute in any other respect. “In consequence the appeal is dismissed with costs, including the cost of the two counsels,” the court ruled.

The dispute was about whether or not the President of Botswana, Ian Khama, is entitled to suspend the appellant as he purported to do on 17 August 2009, from the membership of the organisation for 60 days. The President claimed to be acting in terms of Article 34.1.5 of the constitution of the BDP which reads:

“The President of the party shall have the power, in exceptional circumstances, as specified in the disciplinary rules of the party, to suspend any member of the party for up to sixty (60) days on the grounds of such member’s behaviour pending action by the Disciplinary Committee.”

Several labour movements have expressed grief at the final ruling stating that it shows that Botswana is undemocratic.
Keorapetse Kgasa, secretary general of the Botswana Teacher’s Union said they are perplexed by the judgment and that it shows that the Botswana constitution is undemocratic.

“We are left asking ourselves that if one day we have a president terrorizing his own people, there will be nothing to do to him,” he says. He says that as a labour movement it shows they will be termed out of order if they mount pressure on some things they think and feel are undemocratic.

“The whole judgment as well as subsection 41 (1) are against natural justice and natural justice has to be respected,” he added.

Section 41 (1) of the constitution of Botswana reads as follows: “Protection of President in Respect of Legal proceedings”: –

(1) 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 in his or her official capacity or 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.”

Director of MISA Botswana, Thapelo Ndlovu stated that the judgment is very fortunate though it gives the nation an opportunity to look at the constitution. “It is a blessing in disguise as it calls for review of the constitution to be testified and made relevant for today’s democracy,” he says.

He added that had it come the other way round, people would have relaxed, therefore neglecting what the constitution says.

Justin Hunyepa, publicity secretary at the Botswana Secondary Teacher’s Union, asserted that the judgment simply shows that some people are above the law; they can do anything and they will be protected by the constitution.

“The President has too much power and something has to be done about this because it simply implies that he can do anything he wants to anyone and be protected by what the constitution says”.

He said Motswaledi should be applauded for what he did because the action he took gave an insight on to what the constitution says. “It shows Botswana is not democratic if one person can have so much power,” he added.
Mosweu Simane, executive secretary at Botswana Council of Non-Governmental Organisations (BOCONGO) stated that the nation has to accept the judgment as democratic.

He also noted that the judgment shows that the nation should engage in public debate on issues of law reform in order to raise questions such as whether “our laws serving the nation and if not, the nation should work on what they should do about it collectively”.

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