Tshireletso Motlogelwa
28 August 2009
Botswana Democratic Party (BDP) Secretary General Gomolemo Motswaledi finally moved to the High Court yesterday to challenge his suspension by President Ian Khama. The respondents in the case are the BDP, Khama as party president, and the chairman of the Gaborone Central branch of the BDP.
Motswaledi wants the court to do the following: set aside his suspension by Khama, stop the party effecting the suspension holding a new primary election in Gaborone Central; and to prevent the respondents from taking any steps to approve anyone, apart from him, as a candidate for the constituency.
In his founding affidavit Motswaledi explained that the party, in addition to the constitution, is also governed by rules and regulations which govern discliplinary proceedings and the conduct of primary elections. His argument is that central to the BDP is democracy and consultation in all decision-making processes from which "both ordinary members and office bearers have come to have a legitimate expectation that the affairs of the BDP be conducted in accordance with such practices and customs". He submitted that his suspension runs counter to the general spirit of the BDP constitution as well as the established regulations.
It has been widely reported that Khama suspended Motswaledi by invoking Article 34.1.6 of the party's constitution, which states that: "The President of the party shall ...have powers in exceptional circumstances, as specified in the disciplinary rules of the party to suspend any member of the party for up to 60 days on the grounds of such member's behaviour pending action by the disciplinary Committee". Motswaledi contends that he has not done anything to warrant such a suspension. He argued that the suspension, being timed to coincide with the general elections is a punishment, "imposed without any hearing, without any conviction of misconduct". He therefore, argued that his rights as a BDP member have been undermined.
He said that following the constitutions, which gives the Central Committee powers to appoint and authorise spokespersons to issue statements, he as the Secretary General had been performing those duties. He accused Khama of having deliberately worked to neutralise the elected nine Central Committee members from the Barataphathi with his eight supporters. He said Khama, acting unilaterally, renewed the contracts of Executive Secretary, Comma Serema, and BDP official Attorneys Collins Newman and Co. He said the power to do this belongs to the Central Committee.
"If he thought that these decisions needed to be made, he should not have acted unilaterally, he should have brought the matter to the Central Committee for consultation, and for a decision to be made. His actions were inappropriate and irregular," Motswaledi said. He stated that such decisions have always been taken by the Central Committee, while Khama, contended that the constitution empowers him to do the same citing article 34.1.6. This is said to have caused division in the central committee.
Motswaledi said that to facilitate a solution, in consultation with party chairman, Daniel Kwelagobe, it was agreed that he should consult three legal practitioners - Peter Collins, Collins Newman and Co and Sidney Pilane.
He attaches a copy of the letter written to the three consultants. He said that while Peter Collins and Sidney Pilane responded by submitting their position to him, Collins Newman and Co did not. Pilane and Collins advised that unilateralism by Khama was irregular. Motswaledi said Khama took unkindly to the letter written to the consultants.
"He apparently took the text as a personal insult. I apologised for any culpability in creating that unintended impression. He accepted the apology, or at least he said he did." Motswaledi said Collins Newman and Co released a press release the day after the other two legal brains had submitted their reports. He said what the law firm submitted was not a legal opinion, but a public statement "declaring, though not explaining why, in their opinion, the second respondent has not acted inconsistently with the constitution (...) when exercising his powers as President of the party," the suspended BDP secretary general argued.
He said he was shocked to see the press release because a day earlier, he had met with Parks Tafa from the law firm who had indicated to him that their report would be ready in a matter of days. He stated that, contrary to what Khama later said when suspending him, Tafa never indicated at that point that he had been in touch with the President regarding publishing the press release. He said Khama never informed him of being in contact with the law firm about the matter either. "Against this background, my understanding was that Collins Newman and Co had chosen to publicly express the conclusions of the opinion I had asked for, without the courtesy of giving it to the central committee first," he asserted.Motswaledi said the basis of the suspension indicates that he should have known about the origins of the press release and Khama's connection to it. He therefore, argues that the accusations made against him by Khama are not accurate.
He said attempts by former presidents Festus Mogae and Sir Ketumile Masire to reconcile the two parties, failed. He submits a letter that he wrote to Khama in an attempt to reconcile. He stated that Khama has - misused his powers under Article 34.1.6 "to try to tip the balance of power in the Central Committee".
Motswaledi accused Khama of being biased against him, giving examples to illustrate his point. He charges that at the 2007 BDP congress, Khama did not want him to stand as Secretary General. He said Khama forced him to give way to his brother, Tshekedi Khama in Serowe North West for the much harder Gaborone Central constituency. He asserted that Khama was against his decision to stand as BDP Secretary General this year.
He said Article 34.1.6, which Khama invoked to suspend him refers to exceptional circumstances, a state which he refutes does not exist in the party. In conclusion, he said he could not be suspended for criticising the party leadership, saying it is within the culture and history of the party that criticism is accepted. Motswaledi wants the court to attend to the case as an urgent application stating that the forthcoming elections are of relevance to the proceedings. He is represented by Busang Sebonego and Co. The case is set for hearing on Wednesday next week.
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In my opinion the High Court will dismiss the case on formal grounds
because the "deffendant" Ian Khama has immunity during his presidency.
The Court may JUST state,that the suspension did not have legal grounds and
advice BDP to resolve the problem internally.
Possibly the High Court will dismiss the case for lack of jurisdiction,because the violated rules are NOT the CONSTITUTION Of Botswana but the Constitution of BDP.