Botswana: Motswaledi suffers devastating blow as Khama wins big

The judgement was read by Chief Justice Julian Nganunu before an overflowing High Court that had taken residence at the new and more spacious Lobatse Woodhall Magistrates’ Court.”In summary therefore, the constitution has granted to a sitting President of the Republic of Botswana immunity against criminal prosecution for all activities done both in his private and official capacities. The same, provision, in the second part also grants him total immunity against civil suits in his private capacity. Such immunity is total and not relative. It is granted in the form of prohibition-in a mandatory fashion-not to allow prosecution and suits covered by immunity.

In the premises therefore, this application must be dismissed because it is prohibited by Section 41 of the constitution granting immunity to a sitting President of the Republic of Botswana. The applicant is to pay costs of this application including those of two counsel,” said Nganunu who read the judgment on behalf of Justices Ian Kirby and Isaac Lesetedi. The court was largely populated by Motswaledi supporters.

Although Nganunu noted that Motswaledi’s counsel, Roland Sutherland, had made persuasive submissions against immunity, he found the wording of Section 41 in the constitution clear and unambiguous that all civil suits made against a sitting president in his private capacity cannot be allowed and entertained by the court. This he said is an impregnable defence.

Nganunu said anyone who wants to challenge a President can only do so once the President has vacated the presidency. The judges however said for civil wrongs done by the President while executing his official functions, he is not totally immune from prosecution as these are dealt with under state proceedings.

In his application Motswaledi had cited the BDP and chairperson of the Gaborone Central constituency committee. After finding that Motswaledi could not be given any relief against Khama, the judges said they had to determine whether he could get relief from the other two respondents. Gaborone Central constituency, through the deputy chairperson had deposed an affidavit saying that it associates itself with Motswaledi’s application against Khama’s action to suspend him. But this too was not enough as Motswaledi came unstuck. “To conclude this matter properly, the court should examine briefly the position of the other respondents to see if any of the reliefs sought can be granted against them. It must be remembered however, that the first relief sought by the applicant i.e that of setting aside the suspension, was exclusively directed against President Khama, and therefore no order in respect of that relief can be granted against the other respondents even despite the third respondent’s attitude to other remedies. I should mention that the final interdicts sought are all consequential in nature and can follow only if the relief of setting aside the suspension is granted. Since the application to set aside the suspension cannot succeed, they too cannot be granted, nor can they stand on their own if the suspension of the applicant is not adjudicated upon and remains undisturbed, as is the case herein.”

In arriving at the decision, particularly on the question of immunity Nganunu said the judges had surveyed case law of Commonwealth countries. This survey, he said, showed that a large number of national constitutions give immunity against suits and prosecutions against a head of state.

“The idea of providing immunity to the president as head of state is that the presidency is the embodiment of state, its values and majesty. The immunity is therefore to protect the dignity of the Office of the President, and to a lesser extent to allow the President full time on the affairs of the state without the distraction necessitated by such suits. In that respect, the immunity is in the interest of the state and the public, but not necessarily in the interest of an individual president,” Nganunu said.He stated that they relied on a book authored by former University of Botswana law professor Ntando Nsereko (Constitutional Law in Botswana) which explains the rationale for immunity.

The Chief Justice noted that the applicants did not challenge the Section that gives the President immunity as being illegal.

“Indeed it was discussed by the parties on the basis that it was perfectly legal.”

The judges said the bone of contention about Section 41 was merely its wording. “The issue in this case is whether in respect of private matters, it grants total or partial immunity, and whether it applies in situations like present case, to protect president of the republic, from civil suits, when of his own he has engaged in a voluntary association and there does things which others deem injurious to them. Whether in that situation the provision gives immunity that excludes the possibility of judicial review and restraint.”Motswaledi had argued that the drafters of the constitution would not have intended it to give immunity to a President so that he could impose penalties on citizens thereby depriving them of their rights.

The judges said they understand the irreparable harm to be caused to Motswaledi by the suspension as he will not be able to contest the 2009 general elections in Gaborone Central under the BDP. They admitted that he will suffer ‘irreparable harm’ in his political ambitions. They say when immunity is granted to a sitting President, there are consequences that follow. One of which is that suits that have been prohibited for the term of his office are deferred and some litigants will suffer because it may be too late to sue after the retirement of that particular President.

“I think this was the intended result and a court of law cannot add to or subtract from the clear words of the prohibition in order to escape that. That would amount to legislation by the court or a clear distortion of a clear provision of an enactment, because it produces what a court judge finds unpalatable,” said Nganunu.

Mmegi Online