Convicted BPF leaders eligible for political office
Tsaone Basimanebotlhe | Monday August 14, 2023 06:00
This week, Justice Michael Motlhabi slapped five BPF leaders with a 30-day imprisonment sentence wholly suspended for 12 months, contingent on their good behaviour during the suspension period. Justice Motlhabi stressed the importance of upholding the rule of law and the integrity of court orders.
He emphasised that contempt of court is not just a matter between parties but affects the authority of the Judiciary. BPF patron and former president, Ian Khama was given a warning due to his remorse and commitment to upholding the Constitution.
Legal opinion is divided as to whether the contempt of court judgement is of a criminal nature, or just civil, so much that it could potentially disbar BPF leaders from contesting the 2024 General Election.
For his view on the matter, the Independent Electoral Commission (IEC) spokesperson Osupile Maroba said: “The issue can best be addressed by Parliament as it may need interpretation of Section 62 of the Constitution of Botswana. As IEC, we won’t have records unless another party challenges it. It is up to a political party to seek clarification or interpretation of the constitutional provision first before they submit their nomination papers to the IEC.” Private attorney Tshiamo Rantao said: “I have just considered the sentences. Section 62 (f) of the Constitution provides that no person shall be qualified to stand as a Member of the National Assembly if they are under a sentence of imprisonment exceeding six months.
Their sentence does not exceed six months, and so they are not disqualified.” However, the BPF leaders' attorney, Joram Matomela said their view is that: “The Motlhabi’s decision has no implication on the respondents insofar as their eligibility to contest for public office is concerned. Nothing in the Constitution bars them from contesting for public office.
The grounds for disqualification in Section 62 (f) of the constitution of Botswana are not applicable to respondents. Their sentence does not exceed six months.” He said in terms of Section 62 (2), Parliament has the power to disqualify any person, for a period not exceeding five years, from contesting for a National Assembly seat if such person is convicted of any such offence connected with elections to the Assembly. Attorney Matomela said his clients’ contempt had nothing to do with elections.
Therefore, the operative words are that the offence must be connected with elections to the Assembly. He said the sentence does not disqualify any of his clients from contesting for public office, or the National Assembly in particular. He said there are two instances where one can be disqualified in connection with a commission of an offence.
He continued: “The first is where he has been sentenced for any offence for a period exceeding six months. The second is where he has committed an offence which relates to election, in that case Parliament has powers to disqualify him. Our clients were sentenced to 30 days and it was suspended.” On the other hand, there are those attorneys who did not want to be named by this publication who feel that the conviction might disadvantage those who want to contest for political positions.
However, Section 62 (2) of the Constitution says Parliament may provide that a person shall not be qualified for election to the National Assembly for such period (not exceeding five years) as may be prescribed if he or she is convicted of any such offence connected with election to the Assembly as may be prescribed.
On July 24, Justice Motlhabi of the Lobatse High Court ordered the annulment of the June 5 suspension of the former BPF president, Biggie Butale. Justice Motlhabi deemed the orchestrators of Butale's suspension, including secretary-general Tshekedi Khama, Lazarus Lekgoanyana, Ford Moiteela, Prince Bosilong, party patron Ian Khama, Motswasele Kganetso, Dr Kolaatamo Malefho, party spokesperson Lawrence Ookeditse, and Amogelang Mokwena, as in contempt of the court order that Justice Matlhogonolo Phuthego delivered in April.