As a Cabinet minister, ‘DK’ as Kwelagobe was affectionately known, served at the president’s pleasure, whereas he was popularly elected to lead the BDP. DK surgically delineated the two responsibilities he occupied. On excellent advice, he retained his right to a public office. The latter is a privilege, and might be taken away, depending on the president’s mood. When the same Barata-Phathi faction gobbled up the A-Team in Kanye, the party president undermined their victory by inserting his loyalists in the central committee to render them impotent. Gomolemo Motswaledi stood tall to challenge Khama’s unilateral decision. He challenged the sitting president because the Constitution gives citizens the right to elect their leaders, and everyone must respect the democratic outcome of such a process. The Constitution does not state the sweeping powers of the president to overrule the result of a democratic vote. However, the High Court dismissed the application and ordered Motswaledi to cover the costs. The High Court concluded that presidential immunity was an impenetrable blanket. The High Court did not state that its power was limited in handing down a binding ruling. From the above scenarios, we see how the exercise of citizens’ rights provided for in the Constitution needs safeguards and absolute protection. In the Wayeyi (Kamanakao Association) v State, the same High Court pronounced its limited powers to compel the government to abide by its ruling. It is my layman’s understanding that the Constitutional Court shall exist to hear matters of this nature, where the violator, being the government, should be held accountable through compelling and binding judgments that leave no room for her disregard, but to enforce as directed. In Motswaledi’s case, I hold the view that had he ventilated before the Constitutional Court, it would have adopted a different approach altogether.
Firstly, the court might have appreciated that Motswaledi, as a citizen, was a product of a democratic process entrenched in the Constitution. Secondly, it would have observed that the outcome of such a process was not subject to any violations under the overreaching powers of the president; therefore, rejecting immunity. The Chairman of the Law Society of Botswana, Lesedi Moahi, in his speech at the opening of the legal year, accentuated my belief regarding this model. “A Constitutional Court does not exist to create law. Law-making authority rests with Parliament, which, under Botswana’s Constitutional management, is the supreme law-making body. The role of the Constitutional Court is to interpret the Constitution, adjudicate Constitutional disputes, and safeguard Constitutional supremacy,” he stated. As is, the three arms of government know their roles, but they have not played checks and balances to enhance our democracy. Here is why. Members of the Executive are also members of the Legislature, as demonstrated in the example of DK. This is the source of our discontent. If the president disagrees with a judgment in which a section of the Constitution was successfully challenged, as the head of the Executive, there is nothing that the Attorney General, who represents the government, can do to enforce the ruling. Though our president is not directly elected, by virtue of his political party commanding a simple majority to govern, he is also a member of the Legislature. Who can forget the “Lehenza” vote style that Kgosi Khama IV preferred? Thus, those sections of the Constitution that were successfully overturned in the courts could not get the support of the Executive because the president lacked the willingness, and he also wielded power over elected members of his party inside Parliament. This is the difference I see with the present government, which is willing to welcome challenge through a Constitutional Court.
