Opposition Botswana Congress Party (BCP) has filed a notice calling for the court to suspend the current “unlawful” parliament on urgency basis.
The party through its dual legislators; Selibe Phikwe West law maker Dithapelo Keorapetse as well as Ramotswa Member of Parliament Samuel Rantuana says the parliament is unconstitutional and therefore, in particular, the current President Mokgweetsi Masisi is not a substantive president.
Through its esteemed attorney Martin Dingake of Dingake Law Partners, they state that the Speaker of the National Assembly Gladys Kokorwe has therefore, against the constitution, failed to convene parliament for the election of the president seven (7) days after Lt. Gen. Dr. Seretse Khama Ian Khama resigned. Upon Khama’s resignation in March 31, Masisi then as per automatic succession, assumed the presidency of the country on April 1, 2018.
“The National Assembly, as represented by Kokorwe, has declined, failed and refused to exercise its singular powers (for parliament to dully elect the president) under the relevant provisions of the constitution,” Dingake on behalf of the duo, and the party, stated in the filing notice before High Court, a copy of which has been passed to Weekend Post.
The BCP says “the Speaker of Parliament and Attorney General have failed, neglected and/or refused to meet within the set (seven) 7 days and to respond to the correspondence (from the party).” The party contend that the application before court therefore is to address the alleged constitutional violation by the Speaker of Parliament and seek the Court’s intervention in; directing that the ordinary rules relating to form, time and service be dispensed with and that this matter be heard as urgent.
They also want court to direct that “pending the final determination of the relief sought in: Parliament be suspended.” Dingake said in the filing notice that the court should declare that following the assumption of Office of President by Masisi under Section 35 (1) of the Constitution the Speaker of the National Assembly is constitutionally required to convene the National Assembly for purposes of Sections 35 (4) and (5) of the Constitution of Botswana.
“The court should also declare that the National Assembly is constitutionally prohibited from sitting and or conducting business for any purposes other than that of Sections 35 (4) and (5) of the Constitution of Botswana,” he stated. On April 1st, 2018, Dingake on behalf of BCP once again by operation of Section 35 (1) of the Constitution, said Masisi assumed Office of President of the Republic of Botswana but he did not assume the functions and duties of that office.
“I reiterate that since the day of the inauguration of Masisi, the National Assembly has convened on every working day since April 4th, 2018. On the April 4th, 2018, the National Assembly convened to endorse and swear in a Vice President Slumber Tsogwane that was nominated by Masisi. It is clear that the National Assembly is not prorogued or dissolved at this stage and should adhere to the Constitution obligation to convene for purposes to elect a President.”
According to the party, currently in terms of the law, there is no president in Botswana. The BCP Secretary General Akanyang Magama stated in the party filing affidavit before the court that: “I am advised by my attorneys of record which advice I verily believe to be true and correct that the office of the President is currently vacant due to the failure to implement the constitutional requirements of Section 35 of the constitution.”
According to the BCP as represented by law expert Dingake; in its passive non-compliance with the provisions of Section 35 of the constitution, as read in its entirety, the Speaker of Parliament undermines the foundational value of supremacy of the constitution and the rule of law.
“In as far as the Speaker Kokorwe has not complied with the mandatory provisions of Section 35 (4) of the Constitution; the continued exercise of presidential functions and duties by President Masisi is not sanctioned by a valid parliamentary process, and is ultra vires the constitution,” the party emphasised through their highly valued attorney.
The attorney points out in the court papers that: “it is important to note that per Section 57 of the Constitution, “parliament” comprises of the National Assembly and the President. For there to be a lawful parliament, the two (National Assembly and the President) need to be enjoined by the endorsement process, in this instance, as prescribed under section 35 of the constitution.”
They continued: the failure by Kokorwe to conduct an election of the President (dully) in terms of Section 35 (4) of the Constitution renders parliament, as currently is construed as it is unlawful. According to Magama, the BCP Secretary General, by way of a letter, dated April 10th, 2018; he instructed his attorneys to remind the Speaker of the National Assembly’s constitutional obligation and called upon her to convene the National Assembly to elect a person to the office of President, the warning which Kokorwe failed to take heed of.
In the letter the BCP warned Kokorwe that “our clients opine that there are four (4) types of Presidents envisaged under the Constitution, and these are; a Section 32 President; a Section 35 (1) President; a Section 35 (2) President; and a Section 35 (4) President. As provided for by the Constitution, Dingake observes that only Section 32 and Section 35 (4) Presidents are substantive holders of office with the power to make appointments (revoke the appointment of Vice-President) or dissolve Parliament.
“His Excellency President Mokgweetsi EK Masisi is neither a Section 32 nor Section 35 (2) President. Further, he did not ascend to the office of President following an election by Parliament. And to this extent, does not qualify as one (President) under Section 35 (4) as read with Section 35 (5) of the Constitution,” the lawyer stressed in the warning letter to Kokorwe.
The revered attorney added that President Masisi therefore is remains and has always been a Section 35 (1) President; and must be treated as such. The Constitution, he said, in terms of Section 35 (3) provides that a Section 35 (1) President “shall not exercise the powers of the President to revoke the appointment of Vice-President or dissolve Parliament.”
In a classic and shocking case of disgrace and dishonour to this country, the law enforcement agencies are currently struggling to cover up a damaging and humiliating scandal of having conspired to forge the signature of a Palapye Chief Magistrate, Rebecca Motsamai in an unlawful acquisition of the much-publicised 2019 warrant of arrest against Isaac Kgosi, the former director of the Directorate of Intelligence Services (DIS).
The cloak-and-dagger arrest was led by the DIS director, Brigadier Peter Magosi supported by the Botswana Police, Botswana Defence Force (BDF), with the Botswana Unified Revenue Services (BURS) which accused Kgosi of tax evasion, in the backseat.
Umbrella for Democratic Change (UDC) constituent members are struggling to reach an agreement over the allocation of wards for the imminent ward by-elections across the country.
Despite a Memorandum of Understanding (MoU) between Umbrella for Democratic Change (UDC), Botswana Patriotic Front (BPF) and Alliance for Progressives (AP) are said to be active, but the nitty-gritties are far from being settled.
The eight bye-elections will be a precursor of a somewhat delayed finalisation of the brittle MoU. The three parties want to draw a plan on how and who will contest in each of the available wards.
This publication has gathered that the negotiations will not be a run off the mill because there is already an impasse between the Botswana Congress Party (BCP) which is a UDC constituent and AP (currently negotiating to join umbrella).
The by-elections joint committee met last week at Cresta President Hotel in a bid to finalise allocation but nothing tangible came out of the gathering, sources say.
The cause of the stalemate according to those close to events, is the Metsimotlhabe Ward which the two parties have set their eyes on.
In 2019, he ward was won by Botswana Democratic Party’s (BDP) Andrew Sebobi who unfortunately died in a tragic accident in February last year.
Sebobi had convincingly won by 1 109 votes in the last elections; and was trailed by Sephuthi Thelo of the UDC trailed him with 631 votes; while Alliance for Progressives’ Innocent Moamogwe got 371 votes.
Thelo is a BCP candidate and as per UDC norm, incumbency prevails meaning that the BCP will contest since they were runners up. On the other hand, AP has also raised its hand for the same.
“AP asked for it on the basis that they have a good candidate but BCP did not agree to that request also arguing they have a better contestant,” one UDC member confided to this publication.
Notwithstanding Metsimotlhabe Ward squabble, it is said the by-election talks are almost a done deal, with Botswana National Front (BNF) tipped to take Boseja South ward in Mochudi East constituency. Botswana Patriotic Front (BPF) will be awarded Tamasane Ward in Lerala/Maunatlala constituency, sources say.
“But the agreement has to be closed by National Executive Committee (NEC),” emphasized the informant.
The NEC is said to have been cautioned not to back the wrong horse but rather rate with reason and facts.
UDC President, Duma Boko has told this publication that, “allocation is complete with two wards already awarded but with only one yet to be finalized,” he could not dwell into much details as to which party got what and the reasons for the delay in finalisation.
Chairperson of the by-elections committee, Dr. Phenyo Butale responded to this publication regarding the matter: “As AP we contested and as you may be aware we signed the MoU with UDC and BPF to collaborate on bye-elections. The opposition candidate for all bye-elections will be agreed by these parties and that process is still ongoing,” he said when asked if AP is interested on the ward and how far with the talks on bye-elections.
Butale, a former Gaborone Central Member of Parliament, who is also AP Secretary General continued to say, “As the chairperson of the bye-elections committee we are still seized with that matter. We should also do some consultations with the local structures. Once the process is complete we will issue a notice for now we cannot talk about the other two while the other is still pending the other one”.
Butale further clarified: “There is no such thing as AP and BCP not in agreement. It is an issue of signatories discussing and determining the opposition candidates across the three wards.”
Apart from the three wards, there are five more council wards that UDC is yet to allocate to cooperating partners.
FROM PALAPYE MEET: BPP CAUTION NEC MEMBERS
With the UDC cheerful from last weekend’s meeting in Palapye, the meeting however was very tense on the side of both BCP and BNF, with only BPP flexing its muscle and even lashing out.
BCP going into the meeting, had promised to ask difficult questions to the UDC NEC.
BCP VP and also acting Secretary General, Dr. Kesitegile Gobotswang, presented their qualms which were addressed by UDC Chairperson Motlatsi Molapisi, informants say.
It is said Molapisi is fed up and concerned by some UDC members especially those in the NEC who ‘wash party’s dirty linen in public’.
Insiders say the veteran politician cautioned the NEC members that they “will not expel any party but individuals who tarnish the image of the UDC.”
It is not the first time BPP play a paternalistic role as it once expressed its discontent with BCP in 2020, saying it should never wash UDC linen in public.
At first it is said, BPP, the oldest political formation in Botswana, claims disappointment on BCP stance that UDC should be democratised especially by sharing their stand with the media. Again, BPP was not happy with BCP leader Dumelang Saleshando’s decision to air his personal views on social media regarding the merger of UDC party.
Botswana Police Service (BPS) Commissioner, Keabetswe Makgophe, has of late been dousing raging fires from various quarters of society following the infiltration of the police fingerprint system by the Directorate on Intelligence and Security (DIS), WeekendPost has learnt.
Fresh information gleaned from a number of impeccable sources, points to a pitiable working relationship between the two state organs. Cause of concern is the DIS continuous big brother role to an extent that it is now interfering with other institutions’ established mandates.
BPS which works closely with the DIS has been left exasperated by the works of the institution formed in 2008. It is said, the DIS through its Information Technology (IT) experts in collusion with some at BPS forensics department managed to infiltrate the Fingerprint system.
The infiltration, according to those in the know, was for the DIS to “teach a lesson” to some who are on their radar. It is said the DIS is playing and fighting dirty to win the fights they have lost before.
By managing to hack the police finger print system, a number of renowned businessmen and other politically exposed persons found their fingers in the system. What surprised the victims is the fact that they have never been charged of any wrongdoing by the police and they were left reeling in shock to learn that their fingers are on the data-base of criminals.
In fact, some of those who their fingerprints were falsely included in the records of those on the wrong side of law learnt later when other errands demanded their fingerprints.
“We learnt later when we had to submit and buy some documents and we were very shocked,” one politician who is also a businessman confided to this publication this week.
“We then learn that there are some fabricated criminality recorded for us, as to when did we commit those remained secret to the police, but then we had to engage our lawyers on the matter and that is when we were cleared,” said the politician-cum- tenderpreneur.
The lawyers have confirmed engaging the police and that the matters were settled in a gentlemen’s agreement and concluded.
All these happened behind the scenes with the police top brass oblivious only to be confronted by the irked lot, police sources also add. The victimized group who most of them have been fighting lengthy battles with the DIS read malice and did not blink when it was revealed that these were done by the DIS.
“And it was clear that they (DIS) are the ones in this dirty war which we don’t understand. Remember when we sue, it will be the Police at the courts not the DIS and that is why we agreed to a ceasefire more so they also requested that be kept under carpet,” said the victim.
Nonetheless, the Police through its spokesperson Assistant Commissioner, Dipheko Motube, briefly said: “we do not have any system that has been hacked.” On the other hand DIS mouthpiece Edward Robert was not in office this week to comment on the matter.
Reports however say DIS boss, Peter Magosi, who most of the victims accuse of the job, is said to have met his police counterpart Makgophe to put the matter to bed.
COVID-19 RAVAGES POLICE
As frontline workers, Police have not escaped the wrath of Covid-19. Already the numbers of those infected has reached the highest of high and they suggest that they be priorities on vaccine rollout.
“Our job is complicated, firstly we arrest including those who are non-compliant to Covid protocols and we go to accidents and many more. These put us at risk and it seems our superiors are not bothered,” said one police officer this week.
The cops further complain about that working spaces are small, as such expose them to contact the virus.
“Some tests positive and go for quarantine while the rest of the unit will be left without even test carried out. If at all the bosses are serious all the police officers should every now and then be subjected to testing or else we will be no more because of the virus,” added another officer based in Gaborone.
The government has since placed teachers on the priority list for the vaccines, it remains to be seen whether the police, who also man road blocks, will be considered.
“But our bosses should convince the country leadership about this, if not then we are doomed,” concluded a more senior officer.