The Ombudsman, Rre Augustine Makgonatsotlhe, has just released a report on a complaint by the Botswana Congress Party (BCP). The complaint arose from allegations by the party that President Khama’s private residence at Mosu was constructed through the Botswana Defence Force (BDF) resources which if true would firstly, confer an undue benefit to the President and secondly, reasonably constitutes abuse of office by him (President). One thing that strikes me about the Ombudsman this far is that if the Ombudsman Act was sufficiently reformed, he could add a telling effect on issues of accountability and transparency which themselves would translate into good governance – a trait profoundly lacking in this country. The report on skewed allocation of airtime to Botswana Democratic Party (BDP) on Botswana Television is the case in point. Having lauded the Ombudsman on the fair, balanced and objective BTV report, the same appears not to be the case with the ‘Mosugate’ report because a few unanswered questions arise. Overall, the Ombudsman has come to the conclusion that nothing untoward has taken place at Mosu as alleged by the BCP and consequently, giving the President a clean bill of health in these allegations.
The question that I am grappling with is whether the Ombudsman is, or was empowered to investigate matters affecting the President in view of the massive immunity he enjoys from the Constitution. 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 or her in respect of anything done or omitted to be done by him or her either in his or her official capacity or in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her in respect of anything done or omitted to be done in his or her private capacity.” This is the law validated by the Court of Appeal (COA) in a matter between Rre Gomolemo Motswaledi (MHSRIP) and the Botswana Democratic Party (BDP) in 2009. To emphasise Presidential immunity, the COA quoted Professor Daniel Nsereko’s book Constitutional Law in Botswana that “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. 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.”
With Section 41 (1) in mind, it goes without saying that the ‘Mosugate’ investigation shouldn’t have even commenced in the first place purely on the basis that the President cannot be subjected to criminal or civil proceedings in his official or private capacities because ‘…they are likely to embarrass him or hamper him…’ An argument may be made that this investigation was not conducted in the conventional and strict manner of criminal and civil proceedings. Fair enough. The point I am making is this: if this investigation revealed some form of wrongdoing on the President, would the Ombudsman have recommended criminal proceedings against him whether this would hold or not? If this were to be the case, the Attorney General would immediately come to the President’s defence through Section 41 (1) and that would be the end of the story. I must state that I do not agree with Section 41 (1) because it puts the Presidents of Botswana above the law and somewhat encourages abuse of office amongst others where they cannot be subjected to criminal and civil proceedings. It is the law nevertheless. Why then did the Ombudsman undertake this investigation while it was pretty clear that it would after all, be an exercise in futility? The Ombudsman has himself conceded that the Ombudsman Act as it currently stands seriously inhibits the institution from effectively undertaking its intended and expected mandate. Its findings and recommendations particularly where the President is implicated have never been taken seriously let alone been implemented. The report by the founding Ombudsman Rre Lethebe Maine (MHSRIP) on the unlawful piloting of BDF aircrafts by the current President as he found then, is the case in point. Alive to the limitations of the Ombudsman Act and the Presidential immunity derived from Section 41 (1) of the Constitution, there was no point in pursuing the ‘Mosugate’ investigation. But the Ombudsman went ahead nevertheless. Your guess would be as good as mine as to why he pursued the investigation.
The Monitor newspaper dated 5 February 2018 says “Despite going at length describing in detail how the Constitution of the country shields a sitting President from criminal and civil prosecutions and investigations, the Ombudsman Augustine Makgonatsotlhe tore away the script and used his discretion to go into the heart of ‘Mosugate’….the Ombudsman says he applied his discretion to embark on a fact-finding mission into the matter because of its sensitivity and apparent public appeal.” What did he ultimately stand to achieve after the fact-finding mission given firstly that the Ombudsman Act does not have a binding effect particularly on the President and secondly that executive power is vested in the President? While the Ombudsman has reportedly met officials from the office of the President during his investigation, nothing suggests that he met INK Investigative journalists who allegedly presented satellite pictures of Mosu with BDF equipment on site. It was the duty of the Ombudsman if the discretion he suggests is anything to go by, to engage these journalists to validate the authenticity of the satellite images. If these journalists were never engaged, a critical source of information which could have compelled a different outcome was lost. One should ask whether the value of the bank slips and other relevant documents he got from the President’s aide correspond with the actual value of Mosu and if not, how did he determine it? Were these documents verified with sources of origin for authenticity in light of the possibility of falsifying them?