Wednesday, May 18, 2022

“A response to Rre Serite’s cry for help”

A person with a desire to be appointed a judge will cut to the chase quickly. He will note that Rre Serite states that there was public position that Rre Motswaledi should have been heard. He will also note that Rre Serite then immediately states that only a national referendum reflects the public position. He will note that Rre Serite has not stated that there has ever been a national referendum on the issue that he raises. The prospective judge will note that Rre Serite has created a logical framework that rubbishes his own position.

Imagine a situation where person A states that his view is in accord with the law, and person B maintains that it is his view that is in accord with the law. A dispute ensues and person A approaches the court for confirmation of his view. Prior to the court action person A launches a major campaign publishing his position, and in the process gets a lot of people to agree with him. The matter is argued at court and the court decides in favour of person B’s view. What is wrong with holding that person A’s view was against the law? It is of course nicer to say he was wrong. Substitute the word “democracy” for the word “law”. Why should anyone take offence?

Rre Serite has not fully grasped the nature of the beast called freedom of expression. If he thinks that his defence of Rre Motswaledi is bootlicking, that is his view not mine. If he thinks within the arena of freedom of expression there are constraints founded on whether someone has debts or loads of money, that is his view, not mine. The constraints that Rre Serite places on himself have no basis in our constitution.

The laws that parliament make represent our voice. However if we want to confirm what our voice is we go to the courts, not to the very parliament that made the law. This is one of the underlying principles of separation of powers. It is failure to appreciate this that may create confusion in some of our people. If one remembers that parliament is our voice, that it expresses our voice in our laws, and that our courts tell us what it is we have said in our laws, then one will not find anything wrong with the position that the pronouncements of our courts reflect our voice, our public position.

Rre Serite can genuinely believe that Rre Motswaledi opened the floodgates of democracy. That is his business. Once the court set out what the position of our law is, his private position on democracy stood in contrast to our voice as set out in the constitution. If Rre Motswaledi had been successful his position would have been reflective of our voice, our public position. Those who held the position that a president cannot be sued under any circumstance would then have been against democracy. The rule cuts both ways. It is a failure to appreciate this position that creates confusion.

Rre Serite misunderstands the discretionary power of the courts in granting bail to murderers and rapists. Granting of bail is founded on our constitution’s position that assumes that an accused person is innocent. That position is our public position. If Rre Serite holds a contrary view then he should be gracious enough to recognize that his position is at odds with our public position. It is not the courts that create room for discretionary power. We do. If we wanted to, we could eliminate such discretion.

We have amongst us a human rights organization that advocates for abolition of the death sentence. They may very well be right in their position. Their position is however contrary to our constitution. Supposing they were to hold that the death sentence is undemocratic. Would a court action to abolish the death sentence based on a position that it is undemocratic make them advocates for democracy? I think not. Would such a court case be deemed to be opening the floodgates to democracy? I think not.

I have noted that Rre Serite uses “public position” interchangeably with “public opinion”. He is well within his rights. His assertion that presidential immunity is undemocratic is contrary to the view expressed by the Court of Appeal. There are no two ways about it. He may honestly believe in his position. But there is no escaping that it is contrary to what the Court of Appeal has said. His view is therefore contrary to our law, to our public position. To argue as he does that presidential immunity is undemocratic is with respect a private and personal view. The issue is not about how many other people share his view but the position of our law, our public position as expressed by the Court of Appeal.

Sadly Rre Serite’s use of the words “public position” to denote “public opinion” confuses him even in his own framework. The absurdity of his hostility to my submission is exposed by his position that only outcomes of national referendums are reflective of public position. To my knowledge there has never been a referendum on presidential immunity. His submission that presidential immunity is undemocratic is unproven on his own framework. Common sense suggests that no weight should be accorded to an unproven fact.

What Rre Serite fails to appreciate is that even on his own framework before a national referendum his views are private. It is irrelevant how many of his friends share his view and publish the same. They may even form themselves into a political party or movement. This does not elevate their private position to a public position. It is still a private position shared by many people. That their view is in the public domain does not elevate it to the law, the public position. It is according to his own framework only after a national referendum that his private view will be a public position.

Rre Serite should also note that according to his own logical framework even if all members of the BDP, BNF, BCP and BMD were to agree that a sitting president can be sued, in the absence of a national referendum affirming such a view, their view is not the public view. It is a private view held by all members of those political parties and such a view is against democracy as expressed in our law.

It is common for opponents to talk of being correct or wrong in their interpretation of the law. It is just a choice of words. The loser can just as well be said to have held a position that is against the law. He may be said to have stood against the principle underpinning the contrary interpretation. It may offend his sensibilities and those of his supporters, but who really cares? Rre Serite ignores the fact that it was his hero who linked presidential immunity to democracy in his arguments. A ruling against him therefore showed him to have been against democracy. I am therefore entitled to hold that Rre Motswaledi stood against democracy.

The law is valid now. When opponents go to court with conflicting interpretations, all they are really putting forth is what they believe we are saying now, not forty-five years ago. The one who does not get the support of the court is clearly against what we are saying now. Rre Serite’s reference to what happened forty five years ago does not help his cause.

Rre Serite is uncomfortable with the implications of the correctness of my submission. For a long time he supported the myth that Rre Motswaledi stood for democracy and I have dared demonstrate that indeed the situation is contrary to that. Deep down he knows that given that there were two opposing sides the logical conclusion is that if Rre Motswaledi is shown to have stood against democracy then Rre Khama must have stood on the side of democracy. It is this inescapable conclusion that he cannot swallow.

I have taken Rre Serite out of this comfort zone. Rre Serite’s views about Rre Khama are a matter of public record. That is his real gripe. His comfort zone is that some words and drawing of certain conclusions are reserved for use only with regard to some people and not his hero. Freedom of expression allows him to hold and publish his biases. The law, logic and common sense on the other hand stand firmly against his biases and prejudices.

Rre Serite’s failure to apply his own framework to his own position betrays a lack of logical discipline that is at the heart of his alleged confusion. If he had just paused for a little while to argue in accordance with his own framework he would have realized that he is in complete agreement with my submission. Of course freedom of expression allows him to discard his framework to avoid reaching the conclusion that Rre Motswaledi stood against democracy. That is the beauty of freedom of expression.

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