Banners
Banners
Banners
Banners

Can the President be sued as BDP leader?

Staff Writer
Unless former presidents Sir Ketumile Masire and Festus Mogae pull off a sensational last minute deal in the impasse between the two factions in the ruling party, all indications are that the feuding will end in court.

However, there are complications in the impending court action because one of the respondents - the main one - happens to be President Ian Khama. There is talk that the case will die at the High Court even before it gets to the merits stage because Section 41 of the constitution protects Khama from prosecution. Indeed the Khama camp does not make secret of the fact that the case might not go far because of this protection.

They hope to use Section 41 as the grenade that will throw the legal application of the Barata-Phati faction of the BDP into smithereens. Some legal experts say the section gives a sitting president absolute immunity against any form of prosecution. Others however have poured scorn on this view as a misreading of the constitution.

Section 41 subsection (1) says: "Whilst any person holds or performs the functions of the office of president no criminal proceedings shall be instituted against him or her in respect of anything done or omitted to be done by him or her either in his or her official capacity or in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her in respect of anything done or omitted to be in his or her private capacity". 

The Khama camp say the wording of the provision is clear as it gives the president absolute immunity in both private and official capacity. They believe it will be a tall order for Barata-Phathi to go through such an impregnable legal wall.

University of Botswana lecturer, Bugalo Maripe seems to be somewhat in sync with this view.

"It would appear to me that Section 41 gives the president total immunity," he said.
Maripe added that it would however be possible that this section when placed under the laser of  judicial interpretation could attract a restrictive meaning. He stresses that this is only a possibility.

However the

Banners
Barata-Phathi faction seems to be fortified that their legal bearings are pointing to victory over this point. They maintain that when read thorougly, it will be clear to all and sundry that the section does not give the president immunity against civil proceedings when he acts in his official capacity. They said the protection only applies when he acts in private capacity.

One lawyer singled out the last part of Section 41 as the nub that carries the key to unlocking all the legal mist. The part reads: "No civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her in respect of anything done or omitted to be done in his or her private capacity.  

"Underline private capacity," the lawyer said adding that there is no mention of official capacity when one proceeds under civil application.

The nature of the proceedings that the camp that backs suspended BDP secretary general, Gomolemo Motswaledi contemplates to bring against Khama are said to be civil in nature.
A Gaborone lawyer who did not want to be named said the view that the president's decisions cannot be challenged in court is ludicrous.

"The president's decisions are challenged and reviewed in court every other day. If we were to follow this logic, it means Khama can dissolve the BDP and we should all go to sleep because he has immunity. That will be quite something wouldn't it? The correct position is that the president's decision can be reviewed and they have been reviewed before.

In fact, it is ironic that Collins and Newman, the very firm that is at the centre of this controversy is the very firm that brought an application up to the Court of Appeal against the President of Botswana," the lawyer said pointing to an entry in the Botswana Law reports in a matter entered as President of the Republic of Botswana and others versus Bruwer and Another.



Banners
Banners

Selefu

One million Pula for toilet? Are you crazy?

Latest Frontpages

Todays Paper Todays Paper Todays Paper Todays Paper Todays Paper Todays Paper
Banners