September 11 , or 9/11, brings back painful and agonizing memories to the Americans for it was on this day that their loved ones perished in multitudes at the hands of terrorists.
It was a dark day for the national security of America.
It is without doubt that many in Botswana will, as of September 11, 2009, join in the agony of the Americans every time the calendar clocks this date. Here it will not be to remember the loss of loved ones.
September 11 in Botswana will be remembered as the day when our hopes of resuscitating our sickly democracy diminished. The evil that is our constitution was revealed on this day. It was a dark and sad day for our democracy.
The judgment in the case of Motswaledi and Khama has shown how we have been living, for the past forty three years, under a monstrous constitution which sanctions dictatorship. That we have managed to live for so many years without any erosion to our civil liberties was only by the grace of God. That our repressive constitution was never unleashed on citizens was merely at the goodwill of our previous leaders who placed the interests of the majority before their personal interests and egos.
All our previous leaders were at liberty to oppress and disregard the people’s wishes but they chose to shy away from such barbaric powers.
The protection that gives Khama the leeway to act as he pleases has always been there but was never used to the detriment of fellow citizens’ rights. Chief Justice Nganunu’s pronouncement that Khama cannot be brought before the courts of law on any grounds proves that our constitution has long been due for the shredder.
I think the other plausible way of making the Judiciary to be undoubtedly independent from the Executive is to do away with the current arrangement where Judges are appointed by the President.
The outcome of this case has the potential to raise doubts on the independence of the Judges when one looks at the fact that they are in those positions at the behest of the respondent, being the president. This makes their impartiality to be suspect.
The judges may be independent. The judges may be impartial but for as long as they fall within the bracket of political appointment, it will always cast doubts on their fairness when dealing with issues that involve the president. For the sake of their own integrity, there has to be an independent body dealing with their appointments.
It gets scary when even High Court judges believe the Constitution does not allow them to question Presidential actions or omissions of actions.
The rationale behind the white ugly wigs often adorned by High Court judges is to depict them as old men and women. This is so because they are expected to be wise as wisdom is supposed to come with age.
Now if wise men cannot be allowed or, at least, be convinced to allow themselves to intervene in matters that affect one citizen (the president) amongst millions of other citizens, it surely calls for concern.
I bet Barrack Obama was prompted by such laws when he said Africa needs strong institutions and not strong men because in our case, the man at the helm of our presidency is stronger than the institution which was established to protect citizens but, as it has turned out, only one citizen enjoys such protection.
When Motswaledi’s case was brought before not only one but three supposedly wise men, I was gratified that wisdom would be in abundance when dealing with the case. I am not old, therefore my wisdom may not match “three old wisdoms” but still, I have a strong conviction that applying a blanket approach to presidential
immunity is in the least of wisdom.
It is for this reason that I, even as I write this, shiver when I think of September 11 2009 when three wise men made it clear in a court of law that they are restrained by the constitution to apply any wisdom that may bring remedy or offer redress to anyone who feels mistreated by the president.
In their own wisdom and words, the wording of the law that offers the president immunity from litigation is ordinary, natural and not ambiguous and therefore, it has to be interpreted as ordinarily as such, without any exceptions.
According to their interpretation of presidential immunity, whether Ian Khama acted in bad faith when he suspended Motswaledi is neither here nor there. Whether Ian Khama consulted or acted in the best interest of the party or the nation does not hold water. What is paramount is that the courts have no jurisdiction to entertain any litigation brought against the president because, according to the judges, the immunity has no exceptional circumstances.
What this therefore means is that Khama’s dictatorship has been declared legal. I know people attach derogative connotations to the term dictatorship but the bitter truth is he can dictate and determine anyone’s fate in life without any objection. A dictator is a ruler who has complete control over the country and that is exactly what our constitution has bestowed on the president.
According to the interpretation of presidential immunity as delivered at Lobatse, the president can suspend all parliamentary candidates from the Barataphati faction and no remedy can be sought from the courts of law. The president can shoot me at any time and no redress can be sought from the courts of law while he is in power. The president can commit horrendous acts that I cannot even imagine on paper and the courts of law cannot intervene.
I am a worried citizen.
I am scared at the thought of what this complete immunity is likely to breed in our country.
Today it’s Motswaledi and I bet it’s only a matter of time before another one follows.
This is why I say it’s not only Motswaledi who lost but our democracy and our protection as a nation is at stake as we are not covered from any oppression that the president may elect to slap on any of us.
