The principle of legal immunity for the president as enshrined in the constitution seems set for a test as President Ian Khama has recently made moves to sue a local paper.

Last week the state television and radio stations reported that Khama has decided to sue a local newspaper after a story surrounding the 'executive style' killing of suspect John Kalafatis. President Khama featured prominently in the reports on the killing.

This week Khama's lawyers Collins Newman & Company also issued a press statement in Gaborone indicating that their client has instructed them to sue the weekly.

However, legal observers say it would be interesting to see how Khama manoeuvres around the constitutional provision that guarantees him immunity from criminal and civil proceedings if he were to be counter-sued. By suing, observers say, President Khama is inevitably abandoning his immunity, which may lead to a problem if counter-sued.

Commenting on the latest debacle, University of Botswana (UB) law lecturer, Bugalo Maripe says that it is surprising that Khama is suing the newspaper at a time when government has not come forward with an explanation on Kalafatis' death. Kalafatis, 32, died at the hands of security officers whom it is reported sprayed his body with over 13 bullets.

Maripe is of the view that since authorities have indicated that they are still investigating, the lingering question is whether Khama would withdraw or continue with the case after the investigations.

He also wondered whether following the announcement of the intended lawsuit the investigation could turn out to be credible.

"Will the investigations be made to suit the legal proceedings?" he questioned.

According to a Francistown based lawyer, who spoke on condition of anonymity, if the other party was to make a counter claim it would be blocked by the constitutional immunity that the President enjoys.

"The fact that he is immune is a disadvantage," he said adding that where the president might have a solid case others would not want to be faced with someone who is protected by the constitution. He says that the case poses some serious constitutional aspects.

However, former special advisor to former president Festus Mogae and now an independent legal consultant, advocate Sidney Pilane, dismisses this view. According to Pilane in this case President Khama can waive his immunity and sue the paper.

Pilane said although he did not want to comment on the contents of the suit, if the Sunday Standard makes a counter claim then the President cannot in resisting the counter-claim seek refuge to invoke his constitutional immunity.

"I have no doubt that he would fail should he try," said Pilane.

Another legal brain, Mboki Chilisa says that although nothing in law prevents the President from instituting legal proceedings in his personal capacity, the suit has serious implications.

"It is extremely bizarre and undesirable to have a sitting president in a liberal democracy instituting an action for defamation," contends Chilisa.

"It has a chilling effect on freedom of expression," he added.

He said that in other liberal democracies a person holding political office can only sue concerning criticism about the manner in which he went about discharging his functions.

He argued that a president could only sue if it is proven that the story was written with knowledge of its falsity and with malicious intent.

Chilisa reasoned that the move to sue may have the effect of discouraging the media from its "constitutionally mandated role" of acting as an oversight.

He said Khama's planned suit was undesirable as it has the potential to stifle debate, adding that what is alleged in the story "comes with occupying the highest office in the land". He said the President has a lot of avenues for rebutting the story instead of suing the paper.

"Are we going to have a defamation suit every time somebody makes an erroneous statement which paints the President in bad light?" he asked rhetorically.

"If indeed the deceased was killed by members of the BDF the President must accept responsibility for their actions, in his constitutional capacity as the Commander-in-Chief and must extend an apology for the loss of life to the deceased's family," says Chilisa.

He argues that President Khama's decision to institute legal action marks a low point in Botswana's democracy and will be laughed at by neighbouring democracies.

He further highlighted that there were other avenues available to Khama to set the record straight, citing an address of the nation on television, the Daily News, or even have a commission of inquiry.

Lawyer Batsho Nthoi is of the view that it will be interesting to find out how Khama's lawyers are going to differentiate Khama from his official capacity as the President of the country.

According to him, if the information complained of relates to political issues then it enjoys some privilege.

"A narrow view should not be taken on issues which involve public interest," argues Nthoi.