BCP sues Ombudsman over Khama�s retirement home
Oarabile Mosikare | Friday March 2, 2018 17:48
The statutory notice was delivered to the Attorney General, Abraham Keetshabe on February 21, 2018 and the intention is to launch court proceedings after the expiry of 30 days.
On January 29, 2018 Makgonatsotlhe released a Mosu inquest absolving President Ian Khama from wrongdoing in relation to his retirement home in Mosu.
Khama has been under investigation for alleged abuse of office, public funds and resources following a complaint lodged by the BCP.
The BCP had complained that the President had abused his office by using public resources to build his Mosu home.
The verdict came nearly three years since a complaint was lodged by the BCP in relation to Khama’s retirement home in Mosu.
In their statutory notice through their lawyer Martin Dingake, the opposition party demands various orders declaring that Section 9 (1) of the Ombudsman Act does not exclude the court from exercising its jurisdiction under administrative law where there has been a flagrant, capricious, irrational exercise of authority by the Ombudsman to the extent that the exercise of authority and discretion amounted to being ultra vires.
The party prays that the report, the findings and determinations contained therein to be reviewed and set aside.
“…Declaring that the Ombudsman acted in a manner in excess of his authority and exercised his discretion in such an arbitrary and capricious manner that the complaint by the Botswana Congress Party dated September 2013 would not be fairly and impartially determined should the proceedings be remitted to the Office of the Ombudsman and the Ombudsman, in the event they are set aside by the court,” Dingake wrote.
The party also wants the report, the findings and determinations therein substituted with a determination by the court on such terms as the court may deem appropriate.
The BCP wants costs of such litigation and any alternative relief as the court may deem appropriate.
The party reasons that the determinations by Makgonatsotlhe were grossly unreasonable due to his failure to justify why the explanation of the government departments “were on their own ipse dixit to be accepted without consideration of the legal instruments that govern the benefits accruing to the Office of the President as well as the legislative provisions that govern security detail to the President”.
“Accepting the explanations by the Civil Aviation Authority Board (CAAB) without analysis of the legal instruments governing CAAB and the maintenance and upkeep of private airstrips the first respondent failed apply his mind to whether such upkeep for the President is personal property amounted to maladministration.
Having found that the Botswana Defence Force (BDF) built the airstrip using its own resources, contrary to the answer given in Parliament by the then Minister of Presidential Affairs and Public Administration Mokgweetsi Masisi [September 2013] that the cost of the airstrip formed part of the budget for presidential entitlements (information included in the claimant’s complaint), the Ombudsman acted irrationally and capriciously in his failure to ascertain from which budgetary vote the developments on Mosu were paid for, and whether the allocation of funds from either or both the BDF or the presidential entitlement vote amounted to maladministration.”
It is also argued that Makgonatsotlhe’s failure to consider the legislative obligations arising from the Intelligence and Security Service Act to provide security to the President resulted in an arbitrary and irrational determination into whether maladministration had occurred.
“The Ombudsman’s failure to consider the requirements and whether the legislative requirements had been met in his finding that the President’s property was a national security site was irrational and capricious.”
The BCP lawyer says Makgonatsotlhe failed in law to consider the financial implications on the fiscal and consequently on the taxpayer (BCP’s constituents) that would arise due to the maladministration of public funds for the development of the President’s personal property, resulting in the erroneous finding that the BCP would not suffer injustice as defined.
“The Ombudsman acted ultra vires the Act and the scope of his investigations by finding that the BCP ‘seemingly’ abused the process of his office for ‘political mileage’.”
It also says he acted irrationally and ultra vires to the Act by failing and neglecting to afford the BCP the opportunity to answer the allegations that it was “seemingly abusing” the process of the Ombudsman, thereby violating against the audi alteram partem rule.
Lastly, the party says the determinations and findings by Makgonatsotlhe are so replete in errors of law and fact that the exercise of the discretion by him is so unreasonable and arbitrary and capricious that no reasonable person could have so exercise the power and discretion.