President Lt Gen Khama was on Friday facing an agonizing Hobson’s choice: If he loses his court battle to stop parliament from voting for the Speaker, deputy Speaker and endorsing his choice of Vice President through a secret ballot, he faces a lame duck term, unable to push through his succession plan and political agenda. If he wins his court bid, the consequences may be worse ÔÇô the court may question the legality of his presidency because he was endorsed as vice president using the same parliament Standing Orders he is now challenging.
Lawyers acting for Botswana Congress Party, Monthe and Marumo Company set the tone for the constitutional battle on Friday when they issued a statutory notice that they intend to raise a counterclaim against President Khama challenging the legality of his presidency, should the court declare that the parliament standing order which prescribes that endorsement for vice president should be by secret ballot rather than by show of hand is unconstitutional. The lawyers were responding to a lawsuit by Attorney General Dr Atalliah Molokomme challenging Parliament’s amended Standing Orders that allow MPs to vote for the Speaker of the National Assembly and endorse the Vice President through a secret ballot rather than a public show of a hand.
Monthe and Marumo Company (incorporating Marumo and Company) attorneys also intend to challenge how former Vice Presidents Mompati Merafhe and Ponatshego Kedikilwe ascended to the Vice Presidency. The BCP lawyers informed the Attorney General that “in the event of the Honourable Court striking down the aforestated Standing Orders, our client intends to launch an application in the High Court of Botswana against your nomini office, for on behalf of the President of the Republic of Botswana who shall be cited nominally.” The lawyers state that “our client instructs us that the Standing Orders that introduce the secret ballot procedure for endorsement of the Vice President by the elected members of the National Assembly have been in place since 1998, a position also conceded by yourselves ex facie founding affidavit.”
“Our client instructs us that the following former Vice President of this Republic were elected using the said Standing Orders: Lieutenant General Seretse Khama Ian Khama in the year 1998 and 2004, Lieutenant General Mompati Merafhe in the year 2009 and Dr. Ponatshego Kedikilwe in the year 2012,” state the lawyers. The lawyers state that the BCP differs to the interpretation adopted by the Attorney General and maintains that the Standing Orders are not unconstitutional.
“However in the event the Honourable Court striking down the Standing Orders in issue for being ultra vires the Constitution, we shall thereafter launch proceedings and seek decelerators that the endorsement of the aforesaid Vice Presidents one of whom is the current President Lieutenant General Seretse Khama Ian Khama which was done in terms of the standing Orders was similarly unconstitutional,” state the lawyers. The lawyers state that if the Standing Orders are unconstitutional, they were such from the time they were promulgated and anything that was premised on them; in this case the endorsement of the Vice Presidents by elected members of the National Assembly must inevitably suffer a similar fate. “Our client’s position is that it is in the public interest that in the event the Court finds in your favour that similarly the legality of the said endorsement of the Vice Presidents must be pronounced upon by Court.
Further in the event any of the said Vice President is currently receiving any emoluments from coffers pursuant to holding such position, which they ascended to through unconstitutional means, we shall demand that same cease with immediate effect,” state the lawyers. The lawyers further demand that should the Court strike down the Standing Orders for being unconstitutional, they intend to move an application seeking an order that President Khama’s endorsement as Vice President was done in accordance with the Standing Orders that have been declared unconstitutional and that such an endorsement was unconstitutional.
They also seek an order that the endorsement of Kedikilwe in 2012 and Merafhe in 2009 which were done in accordance with the Standing Orders were unconstitutional. The lawyers also seek an order directing “that in the event that any of the aforesaid parties is currently receiving emoluments by virtue of their position as Vice President, that such cease with immediate effect.” The statutory notice has been copied to Khama’s office, Merafhe and Kedikilwe.
“We note that other parties being Lieutenant General Mompati Merafhe and Dr Ponatshego Kedikilwe are no longer occupying public office and this statutory notice may not be required in respect to suits instituted against them. However, in the event the Statutory Notice is necessary with respect to them same is hereby given” the lawyers said.
