By Thobo Motlhoka
After failing to unseat the Botswana Democratic Party (BDP) from power in over 50 years there remains no hope in sight for the Botswana National Front (BNF) Justice Michael Mothobi has pronounced.
Delivering the diagnosis at the Gaborone High Court last week Mothobi said the BNF was dying a slow painful death.
Mothobi, himself a former BNF Secretary General, said this when delivering a judgement on the case between Kamal Jacobs and the BDP.
Mothobi used the opportunity to dismiss the BNF when highlighting the difference between suing a sitting BDP president who has since independence always held the position of State President and a BNF president who has never in the 52 years of independence enjoyed the benefits of Presidential Immunity.
BDP’s Jacobs had filed an application for his case against the party and President Mokgweetsi Masisi to be heard as a matter of urgency.
The Lobatse native challenges the results of the party’s parliamentary primary elections in which he lost to Thapelo Matsheka. He also challenged Masisi’s legitimacy as the BDP president.
The BDP, represented by Basimane Bogopa and Busang Manewe of Bogopa, Manewe Tobedza & Co, argued that Masisi enjoyed presidential immunity as the President of Botswana and as such no legal proceedings can be instituted against him.
They cited the 2009 Gomolemo Motswaledi vs BDP and Others in which the former challenged then President Ian Khama’s decision to suspend him from the party.
Both the High Court and the Court of Appeal ruled in favuor of Khama and the BDP, citing Section 41(1) of the Botswana Constitution.
The late Motswaledi, who was Secretary General of the BDP at the time, sought the setting aside of the decision by Khama to suspend his membership of the party for five years.
The High Court upheld the point raised by the President that he was immune from civil proceedings in private matters, in terms of 41(1) of the Constitution of Botswana and dismissed Motswaledi’s application. Motswaledi appealed the High Court’s decision but subsequently lost.
In his ruling Justice Mothobi also held that Masisi could not be challenged since the country’s constitution affords the President immunity from criminal prosecution “in respect of any acts allegedly done or not done by him or her ‘either in his or her official capacity or in his or her private capacity’; and immunity from civil proceedings ‘in his or her private capacity’.”
Mothobi dismissed the appellant (Jacobs)’s attorney Kagisano Tamocha’s argument that Section 41 (1) of the Botswana Constitution was not applicable because they are challenging Masisi’s very own legitimacy as president of the BDP and not the country.
The appellant cited the Magama vs BNF case. Akanyang Magama had challenged the party’s decision to order a re-run at Gaborone South after he emmerged victorious in the party’s primary elections.
The Court ruled in favor of Magama and declared him the legitimate BNF candidate for Gaborone South and that the decision of the National Elections Appeals Committee to order a re-run in Gaborone South was illegal.
However, in the Kamal Jacobs vs BDP and Others case Justice Mothobi ruled that the Magama vs BNF case did not involve a sitting President of the country.
He said the Motswaledi case and that of Jacobs were similar in that in both instances a member of the party challenged the BDP President who also happens to be a State President.