While President Ian Khama continues to be linked with potential and existing court cases, legal minds seem divided on what presidential immunity entails. In the follow-up to the Kalafatis scandal, Khama threatened to sue a weekly newspaper for its report linking him with the killing.
The newspaper threatened to counter-sue and Khama withdrew the case. However it is in the case that will arise out of the Kalafatis' family efforts to get justice that the theory of immunity is likely to be tested.
One school of thought maintains that a president is totally immune from prosecution on matters relating to his time in office, while others say immunity is limited only to the period of office. The second preposition puts the president, at the end of his term, under threat from cases arising out of his time in office.
Last week, lawyers of the Kalafatis family indicated that they wanted Khama to explain a number of things, among them his relationship with a Phakalane resident known as Allan West, who is believed to be central to the John Kalafatis fiasco. The lawyers want Khama to elaborate on his powers over the armed forces, especially the events related to their deployment at West's place and their subsequent involvement in the killing of Kalafatis.
One interpretation indicates that if they found reason to, the lawyers could sue the president in relation to the matter at the end of his term. Another school of thought rules out Khama being sued for any offense that he may have committed during his term of office, whether personally or in his official capacity.
Section 41 (1) of the Constitution reads: "Whilst any person holds or performs the functions of the Office of President, no criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his official capacity or in his private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him in respect of anything done or omitted
Gaborone lawyer, Mboki Chilisa, says the president's immunity is related to his office and the actions he commits in the course of conducting the duties of the office. He therefore says that at the end of his term, the president ceases to be granted that immunity and he can be sued even for offenses he committed while in office. "When acting within the scope of his duties as president and during his term, he cannot be held liable. However anything outside of that, and outside of his term, he remains liable," argues Chilisa.
Tachilisa Balule, a lecturer at the University of Botswana argues that the president's immunity covers every action he commits during his term. "Only a constitutional amendment could change that," he says. Joseph Akoonyatse says both arguments are sustainable. "Both arguments could be sustainable. If you sue him for actions he committed during his term, then one could argue that his immunity is not real immunity then. On the other hand, you can also argue that strictly speaking, at the end of the term if he becomes an ordinary citizen, then he should be held liable for any action he might have committed," argues Akoonyatse.
Chilisa says immunity is not a blanket permission for a president to commit crimes. "Let us say he commits a crime now. He cannot be forced to account for it during his term, but as soon as he is out of office, he can be arrested. Similarly anyone can claim damages against him for any breach or action he committed during his term," he says. He gives an example of former Zambian president Frederick Chiluba, who faced corruption charges after his retirement, although he had committed the criminal acts during his term.