Saturday, November 26, 2022

Tshekedi could have delayed arrest by invoking 333-year old parliamentary privilege

Had he been alerted about his arrest well in time, Serowe North MP, Tshekedi Khama, could have used rules developed during his father’s presidency to delay his arrest.

In adopting the Westminster parliamentary system in 1966, the new republic of Botswana firewalled MPs against arrest under certain circumstances. When parliament is sitting, one of the privileges that MPs enjoy is known as immunity against arrest. In terms of this privilege, MPs are permitted special protections against arrest. In Tshekedi’s case however, this protection was limited because it only protects MPs from civil and not criminal matters. The lack of criminal immunity is derived from the key tenet of the British Constitution that all are equal before the law.

That notwithstanding, Tshekedi could have gamed the system, ginning a little drama in the process. Alongside his wife Thea, and Anthony, his twin brother, Tshekedi was arrested by the Directorate of Intelligence Services and Security (DISS) last month. The arrest happened out in the streets and there is a video of the MP resisting arrest. The Khama trio spent a night in a DISS jail before their release the following day. Of the trio, Tshekedi could have played an elaborate and public cat-and-mouse game with DISS. The latter’s involvement means that Tshekedi was arrested over a criminal matter but he could have postponed the arrest if he had not been out in the streets but had stayed within the parliament estate.

In terms of the parliamentary privilege in question, which was enshrined into British law in 1689, arresting DISS officers would have had to seek the permission of the Speaker to arrest Tshekedi. The Speaker would have had to consult with parliament. All the while, Tshekedi would have had to stay within the estate and the conduct of these (mere) formalities would have enabled him to call all the people he needed to call – his lawyers, family, friends and constituents in Serowe North.

This process didn’t play itself out because Tshekedi, whose attendance record of parliament has always been irregular, was out and about. It is likely that the arresting officers were well aware of the parliamentary privilege – as the song and dance that would have resulted if they attempted to arrest the MP on the parliament estate. That might be why they chose a location not covered by the privilege.

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