Thursday, June 30, 2022

MP misrepresents parliamentary privilege on arrest of MPs

Wynter Mmolotsi’s understanding of parliamentary privilege could land him in jail if he ever gets in trouble and attempts to invoke it.

When the Directorate of Intelligence Services and Security Director-General, Peter Magosi, appeared before the Public Accounts Committee last Wednesday, Mmolotsi claimed that the agency’s arrest of Tshekedi Khama, Serowe North’s absentee MP, was unlawful as it contravened privilege that gives MPs immunity against arrest. Alongside his wife Thea, and Anthony, his twin brother, Tshekedi was arrested by DISS agents in March this year. The arrest happened out in the streets and there is a video of the MP resisting arrest. The Khama trio spent a night in a DISS jail before their release the following day.

The privilege in question gives MPs immunity against arrest when parliament is sitting. It is one of the cornerstones of the Westminster parliamentary system and was enshrined into British law in 1689. As a former British colony, Botswana adopted this system at independence in 1966. Mmolotsi confidently asserted that in terms of this privilege, MPs are not supposed to be arrested on their way to and from parliament. He added that DISS broke the law because it arrested Khama on his way to parliament.

Mmolotsi overstated the extent of its protection because this privilege applies only with within the parliament estate. The other thing is that the privilege is limited because it only protects MPs from civil and not criminal matters. The lack of criminal immunity is derived from the key tenet of the British Constitution that all are equal before the law. DISS’ involvement means that Tshekedi was arrested over a criminal and not civil matter.

As Sunday Standard reported around the time of this arrest, Khama could have stalled (not stopped) the arrest by placing himself at the right place – within the parliament estate. That would have forced DISS to seek the permission of the Speaker to arrest him. The Speaker would have had to consult with parliament. All the while, Tshekedi would have had to stay within the estate and the conduct of these (mere) formalities would have enabled him to call all the people he needed to call – his lawyers, family, friends and constituents in Serowe North.

Magosi was more than ready for Mmolotsi when his turn to respond came. He called the MP’s bluff and wasn’t challenged back. Magosi’s statement that DISS complied with the law strongly suggests that arresting agents purposefully chose to arrest Khama outside the parliament estate.

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