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BCP challenges Masisi's 'unconstitutional' presidency

PINI BOTHOKO
Dingake is taking the bull by its horns
The Botswana Congress Party (BCP) intends to approach the courts on an urgent basis if the Speaker of the National Assembly does not convene Parliament for the purpose of election of the President.

Following President Mokgweetsi Masisi’s automatic succession to the presidency, the BCP is arguing that the automatic succession clause in the country’s Constitution is unconstitutional.

BCP through its attorney, Martin Dingake has written a letter to the Speaker of the National Assembly, Gladys Kokorwe calling for the election of the President under Section 35(4) as read with Section 35(5) of the constitution of Botswana.

The letter that has also been copied to the attention of the Attorney General (AG) as the principal legal advisor to the government of Botswana states that BCP hold instructions to approach court on an urgent basis if no undertaking is given and within the requested period of time, April 11, 2018 not later than April 12, 2018.

In arguing their case, the opposition party stated that to the extent that the Speaker has not convened the National Assembly on such earlier date for election of the President, the party will demand that the Speaker give an undertaking in writing not later than April 11, 2018 that they will convene the National Assembly for the purpose of election of the President.

BCP stated that their reading of Section 127(5) of the Constitution seems to place more credence on their argument as to the limitations of the powers of Section 35(1) and 35(2) President. “Masisi is neither a Section 32 nor Section 35(2) President, further he did not ascend to the office of President following an election by Parliament.  To this extent he does not qualify as President under Section 35(4)

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as read with Section 35(5) of the Constitution,” reads the letter.

BCP urges that Masisi therefore is, remains and has always been a Section 35(1) President and must be treated as such. The party further states that the Constitution in terms of Section 35(3) provides that a Section 35(1) President that Masisi holds shall not exercise the powers of the President to revoke the appointment of the Vice-President or dissolve Parliament.

The BCP urges that provided by the Constitution, only Section 32 and Section 35(4) Presidents are substantive holders of office with the power to make appointments, revoke the appointment of Vice President or dissolve Parliament.

They emphasised that it is clear from the reading of Section 35 as a whole in particular Sections 35(4) and (5) that the temporary status of a Section 35(1) and 35(2) President is transformed into a permanent and or fully fledged one by Section 35(4) as read with Section 35(5) of the Constitution.

“Simply put, Sections 35(4) and (5) provide for a mechanism of transforming a President under section 35(1) and 35(2) into a fully-fledged President,” reads the letter.

The BCP emphasise that Masisi assumed office of presidency in terms of Section 35(1) of the Constitution following vacancy in office of President on April 1, 2018 and currently exercises the limited interim functions and duties of the office upon being sworn in.  The letter was written at the instance of BCP Members of Parliament (MP) for Ramotswa, Samuel Rantuana and Dithapelo Keorapetse, MP for Selebi-Phikwe West.



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