Mr President, I am not what you say I am – Motumise
The Law Society of Botswana (LSB) and Omphemetse Motumise, an attorney who President Lt Gen Ian Khama Seretse Khama recently refused to appoint as the judge of the High court maintains that Khama has violated the country’s constitution and has a strong case against him before court.
As the hearing date for the case draws nearer by the day, all parties involved in the matter including President Khama, Judicial Service Commission (JSC), LSB and Motumise continue to share heated points of contention which they intend to debate on before court.
This past Friday morning, Motumise and the LSB filed replying affidavits to President Khama and the JSC answering affidavits on the matter.
Motumise maintains that he ought to have been appointed the Judge of the High court because he is not what Khama perceive him to be.
‘Since I do not personally interact with the President, and he avers that he has reasons for rejecting advice to appoint me, he could only have derived any information about me from informants. The first respondent (President) does not explain why he cannot disclose his informants to me and allow me to face them in my defence. The reluctance to disclose reasons to me, if any exist, I submit is borne out of fear of placing on record the identity and modus operandi of the informants who would be operating outside the law by placing citizens under surveillance to collect allegedly private information,” Motumise had explained.
Hi says the criteria adopted by Khama and the circumstances under which it is applied are matters known only by him. This state of affairs according to Motumise is inconsistent with principles of legality as practised in a democratic society. He added that although the constitution obliges the President to appoint in accordance with the advice of the JSC, he has decided that he will prefer the advice of others to refuse to appoint. This approach he says makes the divide between the Executive and the Judiciary invisible and thereby politicises the appointment of judges.
“This is manifest from his reliance on political considerations and the advice of Cabinet. Our constitution never envisaged that judicial appointments could ever be debated by or subjected to Cabinet approval,” Motumise stated and added that, he does not understand what purpose the criterion of the socio-political situation serves “nor is this explained, unless the first respondent is looking to appoint individuals whose social and political views, associations and orientation meet with his approval.”
That notwithstanding, Motumise wrote to the court that there is nothing in his socio-political orientation and background which renders him a threat to national security or unsuitable for appointment.
“I have been apolitical, non-partisan and independent as evidenced, among other things, by ten years I served as Deputy Chairperson of the Independent Electoral Commission, an appointment held under the Constitution of Botswana. I submit that those are some of the essential attributes of a person who seeks to hold judicial office. I also submit that a person who is partisan and politically orientated and active is unsuitable for appointment by the reason of the fact that he or she is liable to political manipulation and bias,” he further stated.
A few weeks ago, Khama has stated in his answering affidavit filed before court that when he makes appointment he takes into account a broad range of material considerations including matters of national security, the socio-political situation in Botswana, public perceptions of the relevant candidate and the judiciary and questions of policy, and by implication suggested that Motumise could have failed to satisfy some.
The LSB Executive Secretary argues that the considerations cited by President Khama are irrelevant to the appointment of the Judges. Nonetheless, Motumise who would want his name cleared before the court denies that he could have failed the test as even remotely, he can never be a national security threat or “whatsoever.”
“I submit that no discretion can be exercised duly, lawfully and properly when a person’s reputation is tarnished without being afforded a hearing. The first respondent implies that disclosing such information might be embarrassing to me. But he could disclose it to me and afford me an opportunity to defend myself and to contest the veracity of any adverse information he holds against me. He does not explain why as a citizen of this country I am not entitled to that fundamental constitutional right. What is embarrassing and humiliating is the very suggestion that the President might be holding embarrassing information about a citizen,” Motumise further stated.
A court of law, Motumise intends to submit, cannot be called upon to accept that an official duty was performed duly, lawfully and properly in the absence of reasons. His contention is that to deny him reasons is to deny him due process and the protection of law.
He however agreed with Khama that there should be checks and balances between the Judiciary and the Executive.
“But I submit that it cannot be correct that only he can check and balance the judiciary while it cannot in turn review the exercise of his powers.”
Khama had contended that the court does not have the power to review his decision of refusing to appoint Motumise as the Judge of the High court.
The LSB however maintains that the case does not centre on the reviewability of President Khama’s decision not to appoint Motumise as a judge of the High court but rather the interpretation of section 96 (2) of the constitution which the President derived his powers from.
In addition to the order reviewing and setting aside of the President’s decision not to appoint Motumise, the applicants seek further declaratory relief in relation to Khama’s powers in terms of section 96(2) of the constitution and the conduct of the JSC in matters relating to the appointment of judges.
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.