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Kamal loses big in Masisi legitimacy case

In what was supposed to be a landmark case in Botswana where Lobatse parliamentary aspirant Kamal Jacobs who lost Botswana Democratic Party (BDP) primaries was challenging the legitimacy of President Mokgweetsi Masisi as the party leader took a bitter twist on Wednesday when High Court Judge Michael Mothobi ruled that the sitting President is immune to suit in civil proceedings.

This follows a decision upheld by the Court of Appeal in Motswaledi versus BDP in 2009 where they held that the then President Ian Khama could not be sued because he enjoys total immunity from criminal and civil suits. Motswaledi, who was suspended from the party, was seeking reinstatement and to be declared the party’s parliamentary candidate at Gaborone Central. The court in unison agreed that section 41(1) granted Khama immunity, stating that the wording of the said provision were clear and unambiguous.

While arguing the case, Kamal Jacobs’ lawyer Kagisano Tamocha said the orders were sort against Masisi in his private capacity as a member of the 1st respondent (BDP). Tamocha argued that former president Lt Gen Ian Khama who is cited as the 3rd respondent in the matter, is the substantive and lawful President of the BDP. Tamocha asked the court to make a finding as whether Masisi holding the office of the presidency of the BDP in accordance with the constitution of the BDP.

In Motswaledi case the court stated immunity was there to insure that the president, while carrying out his duties, is not embarrassed by dealing with lawsuits and civil claims. “The meaning of section 41(1) is that when the President acts in a capacity other than his capacity as head of state, his act is to be categorised as an act in his private capacity,” the judgement states.

Tamocha argued that Masisi would either have to withdraw his immunity under section 41 of the country’s constitution to allow for a proper determination of the question brought forth in relation to the presidency of the BDP. While delivering his ruling Michael Mothobi said the applicant’s decision to have the 3rd respondent, former President Lt Gen Ian Khama as a joinder remained a conundrum.  Mothobi said Khama has no interest in the matter thus the benefit of his evidence ought to have been sought.

Judge Mothobi said the attorney general cited as Amicus curiae or friend of the court   led by Otlaadisa Kwape was not partisan and provided an invaluable insight in the matter. Mothobi also dismissed the 7th respondent in the matter who is cited as Reginal Chairperson (Botswana Democratic Party- Southern Region) on grounds of Locus Standi. The 7th respondent was sued in his capacity as the regional secretary of the BDP Southern Region Chairmen and whose better and further particulars are to the Applicant unknown.

Michael Mothobi also ruled that the matter is not urgent. He said Kamal and his lawyers failed to supply material and demonstration of imperial evidence. “You failed to show us course why the substantial redress cannot be afforded, no methods of interdiction. You approach must be holistic”, said Mothobi. He however said the former President can still be joined in the matter.

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Ministers key to Masisi presidency revealed

7th December 2021
President Dr Mokgweetsi Masisi

President Dr Mokgweetsi Masisi has identified at least 12 cabinet ministers who form part of his long-term plans owing to their loyalty and tenacity in delivering his vision. Masisi, who will see-off his term in 2028 — provided he wins re-election in 2024 — already knows key people who will help him govern until the end of his term, WeekendPost has learnt.

Despite negative criticism towards ministers from some quarters over a number of decisions and their somewhat cold deliberations and failure to articulate government programs, Masisi is said to be a number one cheer leader of his cabinet. He is said to have more confidence in his cabinet and believes going forward they will reach the aspired levels and silence the critics.

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Free at last: Ian Kirby Speaks Out

6th December 2021
Justice Ian Kirby

The outgoing President of the Court of Appeal, Justice Ian Kirby, shares his thoughts with us as he leaves the Bench at the end of this year.

WeekendPost: Why did you move between the Attorney General and the Bench?

Ian Kirby: I was a member of the Attorney General’s Chambers three times- first in 1969 as Assistant State Counsel, then in 1990 as Deputy Attorney General (Civil), and finally in 2004 as Attorney General. I was invited in 2000 by the late Chief Justice Julian Nganunu to join the Bench. I was persuaded by former President Festus Mogae to be his Attorney General in 2004 as, he said, it was my duty to do so to serve the nation. I returned to the Judiciary as soon as I could – in May 2006, when there was a vacancy on the High Court Bench.

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Civil society could rescue Botswana’s flawed democracy’ 

6th December 2021
Parliament

Botswana’s civil society is one of the non-state actors that could save the country’s democracy from sliding into regression, a Germany based think tank has revealed.  This is according to a discussion paper by researchers at the German Development Institute who analysed the effects of e-government usage on political attitudes In Botswana.

In the paper titled “E-government and democracy in Botswana: Observational and experimental evidence on the effects of e-government usage on political attitudes,” the researchers offer a strongly worded commentary on Botswana’s ‘flawed democracy.’  The authors noted that with Botswana’s Parliament structurally – and in practice – feeble, the potential for checks and balances on executive power rests with the judiciary.

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