President Lt Gen Ian Khama escaped unhurt when a car crashed into a Black Range Rover SUV he was driving while on a private escapade on the night of Saturday 23rd. The Motorist believed to have tailgated Khama crashed his Jeep on the President’s Range Rover shortly after 10pm in Gaborone and suffered minor neck and head injuries. In an apparent bid to conceal the accident, the president violated the country’s road traffic laws and failed to report the accident within the prescribed 48 hours. The Sunday Standard can reveal that the man involved in the accident with President Khama, one Mabita Kaunda was not taken to hospital.
Instead he was bought Grand Pa painkillers at a nearby tuck-shop and booked for two nights at Montana Lodge room number 3 at the behest of the Presidential Guard. His car was taken away by the Presidential Guard and he was taken to the State House. Around 9 am Sunday morning, the Presidential Guard showed up at the lodge and Kaunda was given a new black Jeep. Sunday Standard has not been able to establish why he was given a new Jeep. He spent Sunday night at the lodge and checked out Monday Morning. Sources allege that he then made a trip to the bank in the company of the lodge manager whose name is known to this publication.
The Office of the President has confirmed the accident but denied that the president was driving alone in his official Range Rover. “A presidential vehicle was involved in an accident on Saturday. But the president was not in the vehicle at the time. I am otherwise informed that it was hit from behind by a non-governmental vehicle after it braked. Both vehicles were damaged”, said the presidential spokesperson Jeff Ramsay. Ramsay would not say who was driving the President’s vehicle that night and what measures had been taken against the culprit. Sources however allege that the motorist who was in shock was trembling as he narrated the incident to staff at the lodge where he was booked under the watch of the Presidential Guard.
The incident has brought into focus how the president’s care-free attitude can breach his security and in the process harm other motorists who would not be able to get redress from the courts since a sitting president is immune from prosecution under Section 41(1) and 2 of the Constitution of Botswana. Constitutional law expert at the University of Botswana and former legal adviser to the president, Patrick Gunda, explained that while someone is holding the office of president and during his tenure, no civil or criminal proceedings can be instituted against them. “According to the case of Gomolemo Motswaledi vs. The President of Botswana an impression was created and I suspect erroneously, that the immunity is absolute.
I do teach Constitutional Law and my take is that both the High Court and the Court of Appeal did not live up to the occasion. They were with all due respect apparently scared of possible negative response from the High Office. Consider this: The presidency is assumed to be the highest office. How would we suffice if, such incumbent did all sorts of unlawful acts? Would we just sit and wait till he vacates office? Would that not push some dissenters to take the laws into their own hands? Asked the Stellenbosch University scholar.
Gunda offers that Botswana can derive lessons from the case: “The Republic of the Congo vs. Belgium” ÔÇô a case relating to the former Foreign Minister of DRC called Yerodia Ndomashi dealing with the immunity of a Head of State and Foreign Minister in terms of the 1961 Vienna Convention. One of the Belgian nominated judges, Chris Var den Wyngaert, not judge of the International Criminal Court, passed a dissenting opinion against her own country, Belgium, as she felt the immunity should not hold in contemporary international law as it tended to breed impunity.
“The problem may be a practical one if we are going to wait for 10 years. A witness may die, evidence may disappear and people generally forget. In my humble understanding immunity of a sitting president is not absolute. The rationale of the immunity is such that we assume the Presidency is a busy office that we have to respect. That we should not inundate the office of the Presidency with issues that would derail him or her. That we should let him or her focus on more pressing issues of state”, argues Gunda.