Katse tests presidential immunity

SHARE   |   Sunday, 31 August 2014   |   By Keitebe Kgosikebatho
Katse [red tie] and his lawyer Katse [red tie] and his lawyer

Elijah Katse‘s legal team has cited President Ian Khama as one of the respondents in a matter in which he is challenging the ruling party for recalling his party candidature for the elections.
Justice Rannowane is expected to deliver a ruling on the matter on the 9th of September.

Explaining this action to the high court on Wednesday, Katse’s attorney, Kabelo Nkwe of Nkwe Attorneys said their decision to include Ian Khama though fully aware of the immunity against legal prosecution he enjoys as the state president, was motivated by the fact that they wanted Khama to produce records crucial to the case.

Katse has been recalled from representing the BDP in the Tlokweng constituency in the upcoming general elections and was replaced by his  longtime rival  Olebile Gaborone after he  was  accused of cheating his way up to win the party primary elections.

His attorneys filed a certificate of urgency before Justice Rannowane on the 19th of August citing that recent turn up of events in Tlokweng constituency have motivated them to apply for the matter to be treated as urgent and be heard as soon as possible.

It is in this application that  Khama and the BDP have now been cited as 1st and 2nd respondents respectively  as compared to the principal application in which the respondents were the BDP Central Committee, Independent Electoral Commission, Olebile Gaborone and three other persons.

Meanwhile BDP lawyers have asked the court to set aside the application as an irregular step , the certificate of urgency, alternatively be  dismissed with costs on a punitive scale.

Advocate Francis Barrie who represents the BDP in this case also argued that Katse’s attorneys have flouted procedure in their quest to secure the certificate of urgency. According to Barrie in addition to the fact that the applicant failed to amend the notice of motion on the 4th of August as per the court’s recommendations, the applicants’ attorney though he had advised the court that he had intended to file a certificate of urgency and reasons on the 19th of August.  He would later change the application without leave of court, by abandoning the BDP’s central committee and the IEC as respondents and joined the president and the BDP to the proceedings. “When no relief was sought to amend the extant notice of motion or to join new parties to it, the urgent application is an abuse of process, which fact forms basis for dismissal of the application” Barrie argued.

In a founding affidavit to set aside  deposed  to the court by  Khama’s lawyers , Khama points out that though in suspending the applicants, he was acting in the exercise of the powers granted to him as president of the BDP , by article 34.1.5 of the BDP constitution  and has been cited in the applicants ‘ submissions solely in his capacity as an office holder of the BDP and was not cited in his capacity as the President of the republic of Botswana, this does not erode the fact that he is indeed still the president of Botswana. “Nevertheless, as a fact I hold the office of President of the country, and held that position also on 3 July 2014 (when I addressed to the applicants the letters of suspension) and on 19 August 2014, when the current application was commenced by service on the respondents, “ the affidavit read.

Khama goes on to point out that in terms of section 41 (1) of the Constitution of Botswana, whilst any person holds office of president, no civil proceedings shall be instituted in respect of which relief is claimed against him in respect of anything done or omitted to be done in his private capacity. “I am advised that on a proper construction of this provision, acts perfomed in my private capacity would include anything  done by me other than in my capacity as a president  of the republic of Botswana” Khama’s affidavit read.

In the affidavit Khama also justifies Katse and the other applicants’ suspension from the party stating that it was fully justified in the light of the circumstances that had arisen by the 3rd of July 2014 and hence cannot form the subject matter of civil proceedings such as the ones before the court. “...and for this reason alone I respectfully say that, if the court was approached for leave  that I be joined as a party in the proceedings, such an application has to be dismissed,” he said.

It is perhaps also interesting to note that in the founding affidavit, President Khama highlight the fact that Katse and his co-accused‘s membership is now an issue in question hence recall to represent the party. “I have suspended  the applicants  as members of the BDP pending  disciplinary  enquiries into their  conduct  as reported by the Central Committee… quite obviously  the suspension of the applicants  in their membership of the BDP has as a consequence  that  the BDP cannot endorse them as party candidates in any case,” the affidavit reads in part.

Khama, in his papers, declares that he has carefully applied his mind when making the decision to and further says the decision to suspend the applicants from the party’ is not that of the party, as such but his. “That the applicants are suspended from the party means they cannot, pending their suspension, enjoy the privilege to stand as candidates representing the BDP in the upcoming elections.”

Khama acknowledges the need by Katse to have the matter solved quickly to allow him to stand for the elections if he wins the case, but says in the light of the current situation, it is likely that the disciplinary action against Katse and his co-accused will not be concluded by the time of the elections  and that elections will even take place during his suspension. Khama bluntly reveals his intentions of not going back on his decision. “I cannot lift the suspensions simply because of these circumstances and I shall extend the suspensions for as long as might be necessary”.