BCP calls for suspension of the current unlawful parliament
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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.”
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BCP, AP stalemate in 7 constituencies
When the Botswana Congress Party (BCP), Alliance for Progressives, Botswana Labour Party (BLP), and conveners reconvene next week, the controversial issue of allocation of the seven constituencies will be the main topic of discussion, WeekendPost can reveal.
Not only that, but the additional four constituencies will also dominate the talks. The idea is to finally close the “constituency allocation phase,” which has proven to be the most difficult part of the ongoing negotiations.
Earlier this year, the two parties announced that the marathon talks would be concluded by February. Even at a media briefing last month, BCP Secretary General Goretetse Kekgonegile and Publicity Secretary Dr. Mpho Pheko were optimistic that the negotiations would be concluded before the end of February.
However, it is now mid-March and the talks have yet to be concluded. What could be the reasons for the delay? This is a question that both Kekgonegile and Pheko have not responded to, as they have ignored the reporters’ inquiries. However, a senior figure within the party has confided to this publication as to what is delaying the highly anticipated negotiations.
“We are reconvening next week to finalize constituency allocations, taking into account the additional four new ones plus the outstanding seven,” he explained. It later surfaced that Gaborone Central, Gaborone North, Mogoditshane, Tswapong North, Francistown West, Tati West, and Nata Gweta are all contested by both BCP and AP. This is because the other 50 constituencies were allocated by December of last year.
The three parties have failed to find common ground for the Bosele Ward by-elections. Are these constituencies not a deal breaker for the talks? “None of the constituencies is a deal breaker,” responded a very calm BCP official.
In Bosele Ward, AP has yielded to BCP, despite most of its members disapproving the decision. On the other hand, BLP has refused, and it will face off with BCP together with Botswana Democratic Party (BDP) and Umbrella for Democratic Change (UDC).
The decision by BLP to face off with BCP has been labelled as a false start for the talks by political observers.
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Botswana approves extradition of British fugitive
Raiz Ahmed Tayub, a British fugitive sought by Interpol for his involvement in human trafficking and slave trade crimes, was captured by the Botswana Police Service (BPS) earlier this year.
Merapelo Mokgosi, the Assistant Director of the Directorate of Public Prosecution (DPP), confirmed that he will be extradited to France, where he is wanted for his crimes.
“It is true that Tayub will be extradited to France, where he has been wanted for some time,” says Mokgosi.
She explained that the fugitive was arrested by the Botswana Police in early January while attempting to enter Botswana through the Pioneer border gate. Since his arrest, he has been appearing before the Lobatse Magistrate Court to fight his release from custody and to object to his extradition to France. During his court appearance, Tayub opted for voluntary extradition.
“He opted for voluntary extradition, which the extradition Act allows,” said Mokgosi. She added that the suspect was not under duress when he chose voluntary extradition. Soon after he made this choice, the Ministry of Justice was notified, and the minister approved his extradition. Preparations are still underway to fly the wanted man to France, and once the necessary paperwork is completed between the two nations, the suspect will be extradited.
Mokgosi indicated that plans were still being made to complete the suspect’s extradition to France, and the Botswana government would pay for his flight along with his escort.
Meanwhile, the court has ordered the Botswana Prison Services (BPS) to provide the Islamic British fugitive with “halal food” while he is in custody.
In an earlier court application, Tayub had asked to be detained at a five-star hotel, as he could pay for it until the completion of his case. He also argued that he should not have to wear a prison uniform due to the Covid-19 outbreak. He was thought to have been traveling to Malawi at the time of his capture.
When delivering the order, the principal magistrate, Gofaone Morwang, said the detainee should be provided with halal daily rations with immediate effect while he is in custody. The magistrate dismissed TAYUB’s application for hotel detention and exemption from wearing a prison uniform.
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Botswana approves extradition of British fugitive
Raiz Ahmed Tayub, a British fugitive sought by Interpol for his involvement in human trafficking and slave trade crimes, was captured by the Botswana Police Service (BPS) earlier this year.
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