Katlholo’s suspension is unconstitutional – lawyer
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A Gaborone based attorney has reasoned that the decision of Acting President Slumber Tsogwane to suspend the Director General of the Directorate on Corruption and Economic Crime (DCEC) Tymon Katlholo is unconstitutional, unlawful and insupportable at law.
Attorney Othusitse Mbeha of Mbeha Attorneys said the decision to suspend Katlholo, has not been made by the President of Botswana Mokgweetsi Masisi but the Acting President Tsogwane. The letter of suspension purports that the Acting President specifically relied on Section 112 of the Constitution of Botswana.
On Thursday the acting Permanent Secretary – Botswana Government Communications and Information Systems, John-Thomas Dipowe released a statement to the effect in the exercise of the powers conferred on Tsogwane, by Section 112 of the Constitution, as read with Corruption and Economic Crime Act, he has decided to suspend Katlholo from the performances of his duties with immediate effect until further notice.
“The decision to suspend Mr Katlholo is necessitated by the fact that in the course of his official duties, he has misconducted himself and exhibited behaviour that is incompatible with the conduct of a public officer. In this regard, established disciplinary procedures will be followed to the letter,” Dipowe said. Tshepho Pilane, Senior Assistant Director – Intelligence has been appointed the Acting DCEC Director General with immediate effect until further notice.
Attorney Mbeha said paraphrased and simplified Section 112 (1) of the Constitution provides that the power to remove (suspend) an office bearer, the likes of the Director General of DCEC shall vest in the President. “Although the Constitution should be given a wide interpretation, it’s clear that in using the word, ‘President’ under this section the intention of the lawmaker was that only the President has the powers to suspend let alone appoint or remove the Director General,” Mbeha said.
In the circumstances and consequent to the foregoing, he argued that Section 112 (1) does not give the Acting President the powers to suspend the Director General of the DCEC. This is a special preserve for the President alone and in terms of section 112(1) of the Constitution he has no right nor power to abdicate or delegate it to his Vice President or the Acting President as the case may be.
“It’s therefore my considered view that the decision of the Acting President is unconstitutional, unlawful and insupportable at law. It’s an unfortunate constitutional misstep. A careful reading of the DCEC Act that the Acting President also relied on, doesn’t give him powers to act in the manner that he did.”
In his view, he said, even assuming that he is wrong, his decision would still be wrong, at least administratively challengeable in a court of law under judicial review proceedings. “And here is why. The Acting President already has pronounced the DG guilty as charged before the contemplated disciplinary hearing.
The Acting President has coherently stated that the Director General has in the course of his duty committed a misconduct. I am not sure whether I should absolve the Acting President from blame and cast it on his Acting Permanent Secretary for a poor selection and usage of the right words.
“In letters of this ilk, it’s a grammatical offence to say such things as, ‘as a matter of fact’. What fact? Established by which independent and impartial tribunal or body? The right and permissible language to have employed should have been, ‘according to allegations of misconduct in the course of your duties it has become necessary to suspend you pending Investigations’.
Therefore in my assessment, the letter has all the wrong words giving it a bad image. If the Director General’s misconduct is already a fact, then why insinuate the need to subject him to a disciplinary hearing process?”
He continued: “I would proceed to opine that given the public tide of late building around the skirmishes relative to the Directorate of Intelligence and Security (DIS) Director General and the DCEC Director General, perhaps it’s the President’s well calculated move to jettison public backlash by using the Acting President. In my theory, the President deliberately used his absence from the country to pass his responsibility to his number two”.
In other words, he said the President wants to absolve himself from this decision. He is publicly known to be a man who does not only crave but enjoys acquitting himself from a myriad of accusations to look like a saint. In this case if the public reaction is going to be negative, he will definitely blame this decision on his Vice President and “I surmise the latter is aware”. Otherwise there is no better and clinical explication that can extricate him why this has to occur now and this way.
“My parting shot is that the Acting President’s decision is a dazzling paragon of assault to our Constitution and sheer act of misrule.”
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Malawi appeals for help over Cyclone Freddy at PAP
As of yesterday evening, the death toll from the Cyclone in Malawi had risen from the initially reported 190 to 225 in a short period of time, over 20 000 people have been displaced, and the worst of fears are yet to come as the fatalities continue to mount. This was reported by a Malawi Member of Parliament attending the Pan African Parliament session in Midrand, South Africa, Hon Steven Mikiya.
Mikiya was giving a statement on behalf of Malawi as the ongoing Pan African Parliament in South Africa.
Mikiya said the Cyclone has wreaked the most havoc in our country’s Southern Region. “The Southern Region, has been hardest hit with widespread heavy rains and strong winds. This caused a rapid rise in water levels and subsequent flooding. Meanwhile, power supply has been disrupted, roads blocked off and rendered impassable and mudslides have also been widely reported,” he said.
He made a special appeal to the PAP: “Where I come from, there is a parable which I would like to share with you which says, “mzako weniweni umamudziwa panthawi ya mavuto.” Simply put, a friend in need is a friend indeed or put loosely, a person who helps at a difficult time is a friend you can rely on.”
Mikiya continued: “Yes! Misfortune has knocked on our door and left in its wake a trail of death and destruction that may take years to fully recover from. However, amidst these difficulties, I have every reason to believe that sometimes when you are in a dark place and think you have been buried, you have actually been planted. My belief, Mr. President, arises out of my faith in this gathering and out of the conviction that it is not coincidental that Cyclone Freddy hit Malawi and Mozambique while the delegations of both countries are here.”
According to Mikiya, the level of destruction, the loss of life, property and the decimation of the entire fabric of established communities has been unprecedented. He noted that all this, is coming at a time when Malawi was starting to show signs of recovery from the deadly COVID-19 pandemic that also came hard on the heels of Cyclone Ana and Cyclone Gombe that left a similar trail of devastation and destruction in Malawi and neighbouring countries.
As of Sunday, this week, from the 12th of March, Malawi and Mozambique have been facing the devastating effects of Cyclone Freddy that made a landfall over Mozambique on Saturday the 11th and reached Malawi by Sunday the 12th of March.
The Malawi legislator said he has absolute faith in the Pan African Parliament, which he described as “a league of nations brought together by a shared ancestry, history, identity as well as our beloved continent which we inhabit”.
Meanwhile, Malawi President, Lazarus Chakwera, has declared a State of Disaster in the affected areas effectively appealing for local and international support for the affected families.
Mikiya appealed to the Pan African Parliament drawing “positive” inspiration from Europe which rallied around Turkey after the destructive earthquakes to bring the much-needed relief and humanitarian aid to the people of Turkey.
He said Africa should demonstrate to the world that the African Union and its Organs are not mere talk shows, but effective institutions which stand up when it matters most.
“Alone, it may take us a lifetime to fully recover, but together, in the Pan-Africanist spirit of Ubuntu, our lives and livelihoods will return to a semblance of normality in record time. This is the time to live by our operative mantra, “One Africa, One Voice.” Mikiya concluded.