Botswana’s justice system is subverting the will of the people and underpinning authoritarian presidency, a recent study by Afrobarometer has revealed. While the study found that 77% of Batswana feel that the president should be bound by the laws and courts of Botswana the country’s High Court and Court of Appeal on the other hand grants sitting president immunity from prosecution and law suits.
A panel of Court of Appeal judges made up of Nicholas McNally, Craig Howie, Seth Twun, Michael Ramodibedi and John Foxcroft seven years ago brought a legal tussle between former President Ian Khama and the late Botswana Movement for Democracy Gomolemo Motswaledi to an end by unanimously agreeing that Khama could not be sued because he enjoys total immunity from criminal and civil suits.
They maintained that the constitution grants the sitting president immunity against criminal prosecution for all activities done both in his private and official capacities, and secondly grants him immunity against civil suits in his private capacity. “Such immunity is total and not relative,” they said.
Motswaledi, who was suspended from the Botswana Democratic Party, was seeking reinstatement as Secretary General and to be declared the party’s parliamentary candidate for Gaborone Central.
The judges disagreed with Motswaledi’s lawyer, Roland Sutherland’s contention that section 41(1) was in conflict with the general democratic nature of the country’s constitution when read as a whole.
The decision of the court is however in conflict with the will of Batswana who feel that the president should be bout by the laws and courts of Botswana.
A study by Afrobarometer revealed that only 19% of Batswana agree that the president should not be “bound by laws and courts.” On the other hand, 77% of Batswana feel that “the president must always obey laws and court decisions even if he thinks they are wrong.” The same proportion, 77% of Batswana also feels that “the president should also be “accountable to parliament for how the government tax payers’ money.
Keratilwe Bodilenyana, a local scholar in his academic paper has pointed out that, “in terms of the Constitution of Botswana, the President is both head of state and head of government. Thus the presidency has sweeping powers across a diverse range of areas with little review. This defeats the system of checks and balances which is necessary for democracy.