When he stands behind that podium with Botswana Coat of Arms beautifully displayed on it, and predictably wearing a tie in Botswana colours together with the country’s flag lapel pin on the left of his jacket, His Excellency the President Rre Mokgweetsi Masisi will deliver his maiden Independence speech to Batswana and the world. In that speech I predict with the highest degree of certainty that he will passionately and eloquently touch on the principle of The Rule of Law and how he is committed to ensuring that it succeeds under his leadership as he has done so in recent times. What he will not tell us again with the highest degree of certainty is that while we the poor souls are expected to be subjected to the laws of this Republic without exception and rightfully so, he and he alone is above such laws thanks to the Constitution that puts him in that position. Without taking anything away from his speech with regard to the Rule of Law, he will be telling us what we have already heard from his predecessors and will possibly hear from his successors. In this conversation, I look at how the President is above the law which in itself and by itself is an affront to the Rule of Law and how the structural institutions of the State which are key to the Rule of Law, could largely fail to ensure its success.
My little knowledge tells me that the Rule of Law simply means that no one is above the law. But not in this beautiful Republic I dare say. I must state from the outset that it is not the President’s fault that he finds himself by virtue of the office he holds, to be above the law. He is simply the beneficiary of the provisions of the Constitution. He is in a privileged position to change the status quo but given the privilege of absolute immunity, it is highly unlikely. Section 41(1) on the Protection of the President in respect of legal proceedings provides that “While 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 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”. The immunity of the President from any criminal or civil litigation has since been confirmed by the Court of Appeal.
One would be tempted to conclude, as I hereby do, that the framers of the Constitution specifically with respect to Section 41 (1) may have reasoned that the holders of the office of President would not be susceptible to, for example, the violation of their oath of office in one form or the other; get involved in unbecoming conduct like using their offices for nefarious activities and so on. It has since emerged that generally speaking, holders of the office of President here and elsewhere have, or are alleged to have engaged in activities incommensurate with the expectations of their offices. Former South Korea President Park Geun-hye is currently serving 24 years in jail for crimes committed while in office. We have heard how Sir Ketumile Masire was allegedly ‘bought out of office’ by allegedly receiving a loan from De Beers during the hey-days of intense factional battles in the Botswana Democratic Party (BDP). Very recently, allegations have emerged that President Masisi himself may have benefitted from the proceeds of the National Petroleum Fund scandal to the tune of P 3 million. Given protection of Section 41 (1), it is a given that an investigation into the P 3 million allegation may never see light of day. One would have expected that because this allegation against the P 3 million is so serious on the President personally let alone the office, he would have acted swiftly to cause the matter to be investigated and concluded without simply denying it and by extension allowing it to remain hanging in the air. He could for example have sued the perpetrators of this allegation to force them to avail evidence. As it stands, the perception out there could very well be that there is some element of truth in the allegations.
Because the President is passionate and justifiably so about the Rule of Law, is it not appropriate that he causes the ‘repeal’ Section 41 (1) such that he and his successors also become subjected to the law like me and you should the need arise? We are aware that he has already caused the ‘repeal’ of the Electoral (Amendment) Act 2016. Section 41 (1) and given the refuge it accords the holders of the office of the President, defeats the principles of the Rule of Law. I am cognisant of the fact that the office of the President is no ordinary office hence the need for it to be protected. But what if the incumbents (and I am not referring to President Masisi but making a general statement) decide to use it for nefarious reasons with the full knowledge and understanding that they are immune from either criminal or civil proceedings?
The current legal frameworks of State institutions that are key to the Rule of Law leave a lot to be desired. The Ombudsman, the Directorate on Intelligence and Security Services and the Directorate on Corruption and Economic Crime Acts to mention but a few, do not practically give them the highest degree of independence from the office of the President because they are intrinsically tied to it in almost if not, all respects. The appointment and dis-appointment of heads of these institutions are a personal prerogative of the President who himself is immune from the law which in itself would reasonably suggest unwavering loyalty to him. While these institutions take serious offence at the suggestion that they are more loyal to the President than to the Constitution, it is difficult to argue otherwise given the intrinsic nature of their relationship with the highest office in the land. Appearing recently at the Public Accounts Committee, the Permanent Secretary in the office of the President Rre Thuso Ramodimoosi is reported to have said that the DCEC is failing or unable to investigate his boss Permanent Secretary to the President Rre Carter Morupisi on corruption allegations because it reports directly to him.
All in all, the Rule of Law as envisaged by the President is bound to be problematic to achieve if it is one-sided or selective as unfolding events seem to suggest. The fact that he has almost single-handedly ‘repealed’ the Electoral (Amendment) Act 2016 without first seeking authority and concurrence from parliament as the creator of this Act is firstly a serious violation of the Separation of Powers and secondly, the violation of the Rule of Law itself. Because it perfectly suited the President politically to ‘repeal’ the Electoral Act, almost all constitutional and other imperatives were fatally ignored in the process. Like I have said, the President is above the law and therefore not subject to its scrutiny in any form or shape. This therefore tells us that the status quo as it existed during the tenure of his predecessors is likely to continue save for a very few cosmetic situations here and there.
I am saying therefore that as long as the President remains overly protected by Section 41(1) of the Constitution, the Rule of Law will selectively, arbitrarily be applied and enforced which at the end of the day will defeat its very purpose. This will inevitably be compounded by the compromised nature of State institutions whose core mandate is to ensure the Rule of Law yet they directly report to the President. I said it before that the President has the opportunity to harvest the low lying fruits to ensure that he walks the talk by completely for example and amongst others, overhauling these State institutions together with their legal frameworks to effectively ensure that the Rule of Law is realised. When the status quo on the Rule of Law is preserved, it will remain more rhetorical and theoretical than practical. In this era of State Capture and other such phenomena, equality before the law and the Rule of Law cannot be overstated. But ‘The more things change, the more they stay the same’. Judge for Yourself!