In an interesting turn of events, the Botswana Democratic Party (BDP) and Independent Electoral Commission (IEC) attorneys have this week moved swiftly to denounce the opposition Umbrella for Democratic Change (UDC) petition appeals citing no jurisdiction by Court of Appeal to entertain such.
The BDP attorney Busang Manewe of Bogopa, Manewe, Tobedza & company had therefore sought relief for the highest court to dismiss the appeals. “The BDP (excluding the IEC) shall pray for the dismissal of these appeals with costs of two counsel,” the lawyer pointed out in preliminary points filed with court, a copy of which has been passed to Weekend Post. Manewe asserted that “there is no statute that confers the Court of Appeal with jurisdiction to entertain these appeals and therefore the decisions of the High Court in these matters cannot be interfered with.”
No appellate court has an inherent jurisdiction to take appeals from judgements and orders of a lower court, he said in court papers adding that such jurisdiction can only be conferred by statute, but none has been conferred on the Court of Appeal with respect to these matters. “Consequently, the decisions of the High Court with respect to the petitions of the above appellants are final and cannot be appealed as the Court of Appeal has no jurisdiction to entertain the appeals arising therefrom,” the BDP attorney emphasised.
He highlighted that the only appeal that the Court of Appeal can entertain is the matter of Aubrey Tumelo Ramatsebanyana, which appeal relates to a local government election to the extent that the jurisdiction to entertain an appeal for a council seat is not excluded by section 106 of the constitution.
Manewe said this in a matter in which 14 UDC Member of Parliament ex candidates in 2019 National Elections being: Duma Boko, Kenneth Segokgo, Victor Phologolo, Nelson Ramaotwana, Mpho Pheko, Ketlhalefile Motshegwa, Moagi Molebatsi, Olebogeng Watshipi, Mohammed Khan, Onthatlhile Selatlho, Patrick Mmulutsi, Marcus Chimbombi, Haskins Nkaigwa and Sam Digwa are appealing election petitions which were dismissed by the High Court recently.
The lot are appealing against the IEC and the dismissed petitions pertaining to the electoral victory of Annah Mokgethi, Thulaganyo Segokgo, Lemogang Kwape, Meshack Dumezweni Mthimkhulu, Tumisang Healy Mangwegape, Phuthego Modise, Christian Greef and Mabuse Mompati Pule. In another appeal Olebogeng Gilbert Watshipi, Mohammed Khan, Ontatlhile Justin Selatlho, Patrick Dibere Molutsi are also querying the win of Naniki Makwinja, Oabile Ragoeng, Liakat Kablay, and Eric Molale.
Haskins Nkaigwa, Micus Chimbombi, Sam Digwa are also appealing their petition against Mpho Balopi, Justice Brooks and Slumber Tsogwane. According to Manewe, the said UDC appellants were candidates for 2019 general election as members of the National Assembly and their petitions are those matters contemplated by section 69(1) of the constitution and instituted in terms of the Electoral Act CAP 02:09.
In these petitions, the lawyer explained that the UDC sought a determination by the High Court that the BDP (excluding IEC) were not validly elected to Parliament and consequently that their seats should be declared vacant. Aggrieved by the decisions of the High Court in dismissing their petitions, Manewe stressed that the UDC appellants have approached the Court of Appeal for orders setting aside the decisions of the High Court arising from the latter’s exercise of its powers under section 69(1) of the constitution.
Section 69(1)(a) of the constitution, BDP Counsel said it empowers the High Court with jurisdiction to hear and determine any question whether: any person has been validly elected as an elected member of the National Assembly; or the seat of any such member has become vacant. The said appellants, he said, “purport to approach the Court of Appeal as of right which in terms of section 106 of the constitution, section is expressly excluded. By virtue of section 106 of the constitution, section 10 of the Court of Appeal Act CAP 04:01 is also inapplicable.”
In terms of section 106 of the constitution of Botswana, Manewe explained that an appeal shall lie as of right to the Court of Appeal from any decision of the High Court which involves the interpretation of the constitution, other than a decision of the High Court under section 69(1) of the constitution. Additionally, “the UDC appellants cannot avail themselves of the provisions of section 11 (a) – (e) of the Court of Appeal Act which provisions confer the Court of Appeal with jurisdiction to entertain appeals,” the BDP attorney pointed out.
Despite being hailed and still regarded as a hero who saved many lives through his decision to crash the BF5 fighter Jet around the national stadium on the eve of the 2018 BDF day, the deceased Pilot, Major Clifford Manyuni’s actions were treated as a letdown within the army, especially by his master-Commander of the Air Arm, Major General Innocent Phatshwane.
Manyuni’s master says he was utterly disappointed with his Pilot’s failure to perform “simple basics.”
Manyuni was regarded as a hero through social media for his ‘colourful exploits’, but Phatshwane who recently retired as the Air Arm Commander, revealed to WeekendPost in an exclusive interview that while he appreciated Batswana’s outpouring of emotions and love towards his departed Pilot, he strongly felt let down by the Pilot “because there was nothing wrong with that Fighter Jet and Manyuni did not report any problem either.”
The deceased Pilot, Manyuni was known within the army to be an upwardly mobile aviator and in particular an air power proponent.
“I was hurt and very disappointed because nobody knows why he decided to crash a well-functioning aircraft,” stated Phatshwane – a veteran pilot with over 40 years of experience under the Air Arm unit.
Phatshwane went on to express shock at Manyuni’s flagrant disregard for the rules of the game, “they were in a formation if you recall well and the guiding principle in that set-up is that if you have any problem, you immediately report to the formation team leader and signal a break-away from the formation.
Manyuni disregarded all these basic rules, not even to report to anybody-team members or even the barracks,” revealed Phatshwane when engaged on the much-publicised 2018 incident that took the life of a Rakops-born Pilot of BDF Class 27 of 2003/2004.
Phatshwane quickly dismisses the suggestion that perhaps the Fighter Jet could have been faulty, “the reasons why I am saying I was disappointed is that the aircraft was also in good condition and well-functioning. It was in our best interest to know what could have caused the accident and we launched a wholesale post-accident investigation which revealed that everything in the structure was working perfectly well,” he stated.
Phatshwane continued: “we thoroughly assessed the condition of the engine of the aircraft as well as the safety measures-especially the ejection seat which is the Pilot’s best safety companion under any life-threatening situation. All were perfectly functional.”
In aircrafts, an ejection seat or ejector seat is a system designed to rescue the pilot or other crew of an aircraft in an emergency. The seat is propelled out of the aircraft by an explosive charge or rocket motor, carrying the pilot with it.”
Manyuni knew about all these safety measures and had checked their functionality prior to using the Aircraft as is routine practice, according to Phatshwane. Could Manyuni have been going through emotional distress of some sort? Phatshwane says while he may never really know about that, what he can say is that there are laid out procedures in aviation guiding instances of emotional instability which Manyuni also knew about.
“We don’t allow or condone emotionally or physically unfit Pilots to take charge of an aircraft. If a Pilot feels unfit, he reports and requests to be excused. We will subsequently shift the task to another Pilot. We do this because we know the risks of leaving an unfit pilot to fly an aircraft,” says Phatshwane.
Despite having happened a day before the BDF day, Phatshwane says the BDF day mishap did not really affect the BDF day preparations, although it emotionally distracted Manyuni’s flying formation squad a bit, having seen him break away from the formation to the stone-hearted ground. The team soldiered on and immediately reported back to base for advice and way forward, according to Phatshwane.
Sharing the details of the ordeal and his Pilots’ experiences, Phatshwane said: “they (pilots) were in distress, who wouldn’t? They were especially hurt by the deceased‘s lack of communication. I immediately called a chaplain to attend to their emotional needs.
He came and offered them counselling. But soldiers don’t cry, they immediately accepted that a warrior has been called, wiped off their tears and instantly reported back for duty. I am sure you saw them performing miracles the following day at the BDF day as arranged.”
Despite the matter having attracted wide publicity, the BDF kept the crash details a distance away from the public, a move that Phatshwane felt was not in the best interest of the army and public.
“The incident attracted overwhelming public attention. Not only that, there were some misconceptions attached to the incident and I thought it was upon the BDF to come out and address those for the benefit of the public and army’s reputation,” he said.
One disturbing narrative linked to the incident was that Manyuni heroically wrestled the ‘faulty’ aircraft away from the endangered public to die alone, a narrative which Phatshwane disputes as just people’s imaginations. “Like I said the Aircraft was functioning perfectly,” he responded.
A close family member has hinted that the traumatised Manyuni family, at the time of their son’s tragedy, strongly accused the BDF ‘of killing their son’. Phatshwane admits to this development, emphasising that “Manyuni’s mother was visibly and understandably in inconsolable pain when she uttered those words”.
Phatshwane was the one who had to travel to Rakops through the Directorate of Intelligence Services (DIS) aircraft to deliver the sad news to the family but says he found the family already in the know, through social media. At the time of his death, Manyuni was survived by both parents, two brothers, a sister, fiancée and one child. He was buried in Rakops in an emotionally-charged burial. Like his remains, the BDF fighter jets have been permanently rested.
A matter in which former President Lt Gen Ian Khama had brought before Broadhurst Police Station in Gaborone, requesting the State to charge Directorate on Corruption and Economic Crime (DCEC) lead investigator, Jako Hubona and others with perjury has been committed to Headquarters because it involves “elders.”
Broadhurst Police Station Commander, Obusitswe Lokae, told this publication this week that the case in its nature is high profile so the matter has been allocated to his Officer Commanding No.3 District who then reported to the Divisional Commander who then sort to commit it to Police Headquarters.