Sunday, February 5, 2023

Khama mum on whether he will accept victory in case he has boycotted

Ever the trailblazer, former president Ian Khama has done something no other president or citizen has done before – announce that he is withdrawing from a case that he is a litigant in. “Announce” is a useful term to use because while Khama has announced that he is withdrawing from court [proceedings, the Administration of Justice (AoJ) doesn’t recognise such withdrawal.

Khama has two cases pending before the courts. As these cases crawled through the court system, a High Court judge handling a completely unrelated matter alleged that Chief Justice Terrence Rannowane and the Minister of State, Kabo Morwaeng, leaned hard on him to deliver a judgement that favoured the state. A few short weeks thereafter, Kgosi Mosadi Seboko alleged that during a meeting that she had with President Mokgweetsi Masisi at State House, the official presidential residence, the latter said that he would instruct Court of Appeal judges to rule in favour of the state in a case in which the state is appealing a case it lost against Seboko’s tribe.

Going back to the very day (April 1, 2018) that he stepped down as president, Khama started butting heads repeatedly with his successor, Masisi. He quit the ruling Botswana Democratic Party and formed his own party, the Botswana Patriotic Front, and as patron attended its monthly meetings of the National Executive Committee at the Maharaja Restaurant and Conference Centre in Gaborone. 

Khama is now alleging political interference in the judiciary to argue that his cases will not be decided fairly. He wants his cases to be heard by a “neutral panel”, by which he means one that doesn’t feature Rannowane and two CoA judges, Tebogo Tau and Mercy Garekwe. He contests Tau’s appointment to the bench and has alleged that Garekwe is a business partner to the Director General of the Directorate of Intelligence Service and Security.

AoJ has ignored Khama’s demands and the cases are going ahead. This state of affairs could produce an unusually interesting outcome. There are two possible outcomes: a win or loss. The latter means that it is possible for Khama to win the cases whose court proceedings he has boycotted. Sunday Standard asked him if, in the event he wins, he would accept legal validity of such win. The response was as brief as it was unrevealing.

“I would be advised by my attorneys on that one,” the former president said.

Whatever advice he gets, such outcome would put him in a quandary in various ways. Firstly, in recognising a win as legally valid, Khama would be re-validating judges that he has sought to invalidate by announcing that he is boycotting court proceedings that they are presiding over. Secondly, he would also be implicitly communicating the message that the court system is only fair if it works in his favour. Thirdly and related to the latter, if he accepts a win, he should be in a position to accept loss. Lastly, if he rejects a judgement that favours him, he would be hard put to blame the state for hounding him to enforce an unfavourable outcome.

It is interesting to draw parallels between Khama’s actions and that of a United States man whom a court found guilty last Wednesday evening. This man, called Darrell Brooks, had claimed to be a “sovereign citizen”, meaning that he is not subject to the law. The court ignored such claims and found him guilty on all the 76 charges he was facing. In boycotting his cases, Khama has all but claimed sovereign citizenship. In the final analysis, however, participation in court proceedings is not a like a dessert menu at Maharaja where one has a choice between Lemon Lush and Pistachio Pudding.

The court will hand down a judgment that he will be required to abide by and what Khama calls the “regime” (the current government) will move to enforce judgement favourable to it. Khama himself is aware of the latter.

“The regime would of course be keen to enforce the judgement because that is precisely why they appealed after they lost at the High Court,” he said. “The regime is only motivated by one thing, that is to cause me as much hardship as possible whilst they can’t get their hands on me to carry out their evil intentions.”

The back story embedded in the latter is that going back to the very day that he stepped down as president, Khama started butting heads repeatedly with his successor – Masisi. Khama has publicly complained about the paring down of benefits that he is legally entitled to in terms of the Presidents (Pensions and Retirement Benefits) Act that was lathered with even more benefits in the final years of his presidency. If Khama was indeed the chief cook as some have alleged, the irony would be that post-retirement, he is now unable to claim benefits created especially for him.

More shocking is the claim that Khama has been making since 2018: that the state, through the Directorate of Intelligence Services and Security – which ironically, gain notoriety as more a dagger than cloak spy outfit under Khama’s own government, is trying to assassinate him. A year ago, Khama fled to South Africa after a weekend visit to his ancestral home in Serowe. This trip happened at a time that DISS was trying to get him to surrender some handguns in his possession. After a fruitless back-and-forth, the spy agency gave him a deadline to do so. The deadline portended a showdown between DISS and the former president and army commander. In addition to official bodyguards provided by the state (whom Khama has understandably stated that he doesn’t trust), Khama has engaged the services of private bodyguards, all of whom are said to be former Botswana Defence Force commandoes. This set of facts strongly suggests that any possible use of force that would have come after the DISS deadline would have produced ugly results.

Such eventuality didn’t come about because upon his return to Gaborone on the fateful day, Khama’s two-car convoy sharply changed direction, heading to the Botswana-South Africa border. He now lives in self-imposed exile at an undisclosed location and from what we learn, enjoys VIP protection from the South African government. The latter explains “whilst they can’t get their hands on me to carry out their evil intentions.”

However, one possible development could change both the state of affairs and Khama’s residency status in South Africa. For now, he is an exile but that can change in the event of an adverse outcome at the courts. In service of enforcing the judgement, Botswana could issue a warrant of arrest for him and institute extradition proceedings against him.

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