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Can the President waive his protection from legal proceedings?

Ndulamo Anthony Morima

EAGLE WATCH

Recently, there were reports that His Excellency the President, Dr. Mokgweetsi Keabetswe Eric Masisi, was contemplating waiving his protection from legal proceedings as provided by section 41 of the Constitution of Botswana as regards the National Petroleum Fund (NPF) case.

Following these reports, other reports emerged that H.E Dr. Masisi had, in fact, never contemplated waiving his protection from legal proceedings and would, in fact, not do so. In response to this, some claimed that the reason H.E Dr. Masisi does not want to waive his protection from legal proceedings is that he knows he would be found guilty considering the wrongs he has committed with respect to the NPF saga.

I may have missed it, but one would have expected a press release from the Attorney General clarifying the matter with respect to whether it is even possible for the President to waive his protection from legal proceedings. In this article, we attempt to do so. But before doing so it is apposite that we make an exposition of the law relating to the President’s protection from legal proceedings.

Section 41(1) of the Constitution provides that ‘whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his official capacity or in his private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him in respect of anything done or omitted to be done in his private capacity.’

Section 41(2) of the Constitution provides that ‘where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the term of any person in the office of President shall not be taken into account in calculating any period of time prescribed by that law which determines whether any such proceedings as are mentioned in subsection (1) of this section may be brought against that person.’

In Motswaledi v Botswana Democratic Party and Others 2009 2 BLR 269 HC the High Court held that “… section 41(1) means that the president was granted immunity from criminal prosecution in respect of any acts allegedly done or not done by him or her 'either in his or her official capacity or in his or her private capacity”. According to the judgment, section 41(2) grants the president immunity from civil proceedings 'in his or her private capacity' only.

As is common cause, the High Court decision was confirmed by the highest court in Botswana, the Court of Appeal (CoA), in Motswaledi v. Botswana Democratic Party and Others 2 2009 2 BLR 284 CA. Before I proceed, I need to state that contrary to some belief, the President is not, in his official capacity, protected from civil proceedings. Civil proceedings can, therefore, be commenced against the President in his official capacity as Head of State. The same applies to the State itself.

This much was confirmed by the CoA in the Motswaledi case when it said “…until relatively recently in the history of the Roman Dutch and the English law, the doctrine that 'the King is above the law' was interpreted to mean that no civil action could be instituted against the ruler, and, by extension, against the State…”

The CoA continued to say “…however, in modern times, it has been recognized that this is wrong. Legislation has been passed to provide that the State may be sued and that the President may be sued in his official capacity. See State Proceedings (Civil Actions by or against Government or Public Officers) Act (Cap 10:01)”.  Back to the question ‘can the President waive his protection from legal proceedings’? Once more, I beg your indulgence to digress before attempting to answer the question. It seems, to me, important that we seek to understand the importance of section 41.

The CoA, in the Motswaledi case, quotes Professor Daniel Nsereko, in his book, Constitutional Law in Botswana D (Pula Press Gaborone Botswana 2002), at p 82, where he gives, as the importance of the protection granted by section 41, as 'the need to protect the dignity of the office of the President (and) . . . to ensure that the President has as much freedom as possible in the due execution of the duties of his high and exacting office…”

Professor Nsereko continues to say “… it is assumed that court proceedings are likely to distract and preoccupy his mind: they are likely to embarrass him or hamper him in the due execution of those duties. This is particularly so because executive power is vested in a single individual.”

Of course, there are those opposed to Professor Nsereko’s view, arguing that the protection is undemocratic and unconstitutional and subverts the rule of law. In the Motswaledi case, at the CoA, R T Sutherland SC, argued that section 41(1) was in some way 'unconstitutional' because it was in conflict with the generally democratic nature of the Constitution read as a whole. This argument was not sustained because the CoA held that “…a clause in a constitution cannot by definition be unconstitutional.”

The CoA also rejected Sutherland SC’s argument that section 41 ought to be 'purposively' interpreted so as to align it with the basic democratic spirit of the rest of the Constitution. The CoA held, firstly, that it is trite that one may only apply a purposive construction where there is ambiguity, but no ambiguity arose from section 41. Secondly, it held that it is common cause that many democratic countries throughout the world have similar immunity clauses.


The CoA held that these protection clauses are all justified on the basis that it is in the public interest that the democratic good, i.e. equality before the law as canvassed by Sutherland SC,  should in this instance accommodate another good, namely that the Head of State be not impeded in the execution of his duties in the service of the very democracy that Sutherland SC is talking about.

To buttress its point, the CoA cited the case of S v Zuma and Others 1995 (2) SA 642 (CC) at p 653 para 18 where Kentridge AJ made the point that ' we must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the language of which must be respected…”

Kentridge AJ continued to say “…If the language used by the lawgiver is ignored in favour of a general resort to "values" the result is not interpretation but divination. If I may again quote S v Moagi 1982 (2) B.L.R. 124, CA, I would say that a constitution ‘embodying fundamental rights should as far as its language permits be given a broad construction’.

Having made an exposition of the law relating to the President’s protection from legal proceedings, and having heard arguments both for and against the protection, it now remains for us to finally answer the question ‘can the President waive his protection from legal proceedings’?

Section 41 is couched in mandatory terms in that it uses the word ‘shall’, not ‘may’. It, therefore, ousts anyone’s discretion respecting its application. In my view, not even its supposed beneficiary, the President, can waive the rights flowing therefrom. After all, the President is himself, like all Batswana, subject to the Constitution though he has certain privileges and protections. In fact, the Oath of President a president takes in terms of section 37 of the Constitution enjoins him to not only respect the Constitution, but to also protect it. This includes section 41.

I say supposed beneficiary because, in truth, it is not the President, as a person, who is meant to benefit from it. It is the President’s masters, the people, who are meant to benefit from it through the protection of their servant, the President, so that he may serve them unhindered. Of course, we live in an imperfect world where state functionaries like presidents abuse the rights and privileges granted to them by the people, but that is no reason to derogate from the original will of the people-the Constitution.

Such aberrant presidents are to be left to democracy which, though also imperfect, and was never perfect even during the era of Cleisthenes, the ‘Father of Athenian Democracy’, can punish them by removal from office through motions of no confidence or elections. So, H.E Dr. Masisi cannot, even if he wanted to, waive the protection from legal proceedings granted to him by the Constitution. Even if he were truly innocent respecting the NPF allegations, he cannot waive the protection in order to prove his innocence.

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The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

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A Strong Marriage Bond Needs Two

8th December 2020

Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).

This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.

In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.

Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?

Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.

POSITIVITY
Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.

“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)

We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions.
Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”

UNDERSTANDING

Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.

Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be.  You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”

COMMITMENT

Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.

When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.

ACCEPTANCE

Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.

However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.”
“Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)

COMPASSION, MUTUAL LOVE AND RESPECT

Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.

It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.

Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.

Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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