In an interesting turn of events, Botswana Democratic Party (BDP) parliamentary candidate who lost in the recent party primary elections Kabal Jacobs has chickened out in his endeavour to challenge President Mokgweetsi Masisi’s legitimacy as party president.
Kabal through his attorney Kagisano Tamocha this week shockingly told a packed court gallery minutes into the arguments section that he is withdrawing the two cases being main case questioning Masisi’s legitimacy and the other one asking for former president Lt. Gen. Seretse Khama Ian Khama to enjoin them as the 7th respondent.
Khama was expected to testify to court on whether he did resign as BDP president and therefore opening a vacancy to be filled by his then Vice president Mokgweetsi Masisi or not. Masisi has since became the state president and it is still not clear whether he became the party leader too. When presenting the Khama enjoiner proposal, the lawyer asked court to postpone the matter to allow for consultation with Khama to physically come to court to testify against Masisi and BDP or at least pen an affidavit in support of his application questioning Masisi’s legitimacy as party president.
“It is in this light, that Jacobs enjoined Khama in the matter to testify against the party and clarify if he ever resigned and therefore still party president. My client is not saying Masisi is not the president of the BDP but that we want clarity as to who is the president, that’s all,” Jacobs’s attorney told Weekend Post outside court.
He continued to state that they only want the court to assist interpret the BDP constitution on the party presidency which is in dispute while adding that they contend that former state president Khama did not resign his position as party president and therefore he still holds the position. “We have never been in contact with Khama to enjoin in the matter but we thought his coming in would assist tell the court with regard to whether he resigned or not because the presidency of Masisi can only come where there is a vacancy. When there is a vacancy the VP takes over as party president. We believe the last president to be elected party president was and still is Khama at Ave Maria during a party congress in Gaborone,” Tamocha observed.
He further said that Khama didn’t refuse to come to court but he never had the opportunity to be invited to testify. However Jacobs lawyer asked Justice Christopher Gabanagae to postpone the matter to allow for Khama to be enjoined, he briefly and out rightly ruled against the application. “So the refusal to enjoin Khama in the case by the judge Chris Gabanagae then killed everything together,” Tamocha highlighted. He was also worried that the application was objected to by the Judge without giving Khama an opportunity to state whether he would like to be enjoined into the proceedings or not.
According to Jacobs lawyer, they also believed 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. He said this bearing in mind that one of their prayers to court were seeking that the sitting of Committees of the Central Committee including the Committee headed by the 4th respondent (Peter Siele) in terms of article 33 of the constitution of the 1st respondent, and the appeals committee is not proper because they have not been appointed by a substantive president, whom they believe it should have been Khama and not Masisi.
“This was one of our strongest points for our case. But the tactic didn’t work for Khama to enjoin as it was prematurely dismissed.” When opposing Jacobs' request for a postponement, BDP lawyer Basimane Bogopa of Bogopa, Manewe, Tobedza and Company said Jacobs had known all along that Khama was integral to his case. And therefore should have made his mind on whether to continue with the case or not and not delay case just to withdraw at last minute.
His partner, Busang Manewe also pointed out that Jacobs and his lawyer did not get proper advice as they have all known that the president of country cannot be sued both in his official and private capacity which include as acting as BDP president per section 41 (1) of the constitution of Botswana. The BDP submitted that the case be dismissed and costs be awarded Jacobs. However he promised that the case will be re-instituted next week and will come back stronger and with a more solid points in the case.
In the matter BDP was cited as the 1st respondent, 2nd respondent being President Dr Mokgweetsi Masisi while the 3rd is Peter Siele on his capacity as BDP Electoral board chairperson. The 4th respondent is Kingsley Sebele the appeal’s board chairperson, and the 5th is the regional chairperson for BDP Southern region while Thapelo Matsheka the Lobatse MP elect is the 6th respondent with Khama enjoined in lately as the 7th respondent.
The election for the BDP parliamentary candidate in Lobatse was contested by Matsheka who garnered 1,376 votes, the incumbent Lobatse legislator Sadique Kebonang only got 1,073 votes while Jacobs amassed only 1,219 votes. Another candidate Lone Bome attained 66 votes, Patrick Kebailele got 218 and Ahmed Shabeer Ishmail only attained 317 votes cast. Meanwhile Jacobs has vowed to bounce back with a fresh application on urgent basis again next week featuring former President Khama as his key witness.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.