Opposition leaders have slammed the High Court and the Court of Appeal’s unanimous decision that Section 41(1) of Botswana’s constitution is clear and unambiguous in granting the president absolute immunity from prosecution.
Botswana National Front’s Publicity Secretary, Moeti Mohwasa, and Botswana Congress Party’s Vice President, Kesitegile Gobotswang, were last week in agreement that presidential immunity should not supersede the rights and liberties of ordinary people, especially in a democratic country like Botswana.
Their comments came after a panel of Court of Appeal judges made up of Nicholas McNally, Craig Howie, Seth Twun, Michael Ramodibedi and John Foxcroft, brought the legal tussle between President Ian Khama and Gomolemo Motswaledi to an end by unanimously agreeing that Khama cannot 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 party, was seeking reinstatement as Secretary General and to be declared the Botswana Democratic 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.
Mohwasa said last week that while presidential immunity is an ideal concept, it should not be used to trample on the individual rights of ordinary Batswana.
“We should be careful when granting sitting presidents immunity from persecution because some might use it to terrorize their own people. There should be checks and balances in place to ensure that a sitting president is brought to task if he is deemed to be out of order,” he said.
For his part, Gobotswang slammed the High Court and the Court of Appeal’s decision as irresponsible.
“It is very saddening that the highest courts of law in Botswana failed to think outside the box and exercise independent thought, but rather granted the president absolute immunity without considering the implications of their pronouncements,” he said.
Gobotswang explained that the judgment effectively means that the president enjoys unfettered powers to do as he pleases with the knowledge that no one can bring him to task because he is above the law and the constitution.
“What kind of a democracy is that?” he asked.
He said that the BCP has always maintained that the constitution of Botswana, as championed by the BDP, is not democratic at all, but rather blatantly dictatorial.
The constitution, he said, effectively means that the president cannot be impeached and no motion of confidence can be passed against him.
“At the same time, the president can willy-nilly dissolve parliament and call for fresh elections if and when he feels like. This ruling has exposed the farce that has all along been hailed as the shining beacon of democracy in Africa,” he charged.