The Botswana Congress Party (BCP) has approached court in an urgent application seeking an interim interdict to block what they called Mokgweetsi Masisi's unconstitutional presidency.
The party represented by attorney Martin Dingake on Wednesday filed a notice of motion and founding affidavit before court seeking for the matter to be declared urgent and for Parliament to be suspended as they challenge the interpretation of the Constitution regarding Masisi’s presidency.
The party says the purpose for the application was to address the alleged constitutional violation by the Speaker of the National Assembly to uphold the Constitution.
In its founding affidavit deposed by the executive secretary, Akanyang Magama, the party wants the court to determine the matter in terms of section 95 of the Constitution.
The party alleges failure by the National Assembly to fulfil its constitutional obligations to elect the President in terms of section 35 of the Constitution. While they want the court to suspend Masisi in carrying any official duties related to the presidency and for Parliament to be suspended until the matter is settled, the party wants the court to declare his assumption to office unconstitutional. In his founding affidavit, Magama outlines that as per the Constitution, the end of the tenure by the former president Ian Khama left a vacancy in the Office of President by operation of Section 34 (3) of the Constitution. “The court should declare that Masisi assumed the Office of President under Section 35 (1) of the Constitution following the end of former president Khama’s tenure, that was by virtue of the vacancy in the Office.
“Also declare that following the assumption of Office of President under Section 35 (1) of the Constitution the Speaker of the National Assembly is constitutionally required to convene the National Assembly for purposes of Sections 35 (4) and (5) of the Constitution of Botswana,” he said.
Magama reckons that should the interim interdict be denied, the unlawfulness of the appointment process of
“There is no alternative satisfactory remedy available to the Applicants as they have exhausted all avenues of relief, both in Parliament and by calling upon the Speaker to comply with the mandatory provisions of the Constitution,” he explained. Magama said the continued exercise of presidential duties and functions by the President that has not been endorsed by Parliament will raise the possibility of all actions taken during the intervening period as being subject to legal scrutiny.
In addition, he alleged that the National Assembly continues to conduct its business in violation of the Constitution, hence the interdict.
The party further said Parliament too, and its committees’ continuation to operate opened them up to legal challenges, therefore should be fully suspended.
On urgency, the party said the National Assembly was required to convene for purposes of electing a person to the Office of the President and once the office becomes vacant, it is only upon such valid appointment that Parliament is constituted.
The party argues that the Constitution places a mandatory time limitation of seven days for the election to be conducted, which period lapsed on the April 12, 2018, therefore it was in the public’s interest that the matter be heard and subsequently determined urgently.
“The applicants have sought to exercise and have indeed exercised all recourse through Parliament to correct the continued violation of the Constitution. We have no alternative, nor is any additional recourse available to the Applicants other than to seek the courts’ intervention,” read the document.
The party’s papers were also supported by affidavits from the party’s two Members of Parliament, Samuel Rantuana and Dithapelo Keorapetse of Ramotswa and Selebi-Phikwe West respectively.