Gaborone — Can the hallowed presidential immunity from court action guaranteed by many national constitutions be waived in party affairs?

Is a sitting head of state performing a private or official function when presiding over the affairs of the political party he leads or is the answer to the question 'none of the above'.

These are the two major questions facing the respected Botswana judiciary after a landmark High Court case filed against President Ian Khama by ruling Botswana Democratic Party (BDP) secretary general Mr Gomolemo Motswaledi.

Mr Motswaledi went to court after he was suspended by President Khama who recalled him as the BDP parliamentary candidate for Gaborone Central in general elections to be held next month. He cited President Khama, the BDP and the Gaborone Central BDP branch as respondents in his bid to have his suspension reversed and to be re-instated as a parliamentary candidate.

After a historic hearing last week by a three-man bench of Chief Justice Julian Nganunu, Isaac Lesetedi and Ian Kirby, Botswana is preparing itself for the crucial ruling on Friday (11-9-2009) that will have far-reaching effects on presidential immunity in the country and beyond.

The case has the potential of unravelling the myth of presidential immunity used by leaders in Africa and elsewhere to ride roughshod over institutions of governance and to flout the law.

The Botswana High Court must decide whether Section 41 of the country's Constitution grants President Khama blanket immunity from court proceedings. President Khama is not using the Attorney-General in the proceedings and the two sides have assembled a legal armada of top Botswana and South African lawyers to fight the historic case.

Last week, the three-man bench heard novel arguments from Mr Motswaledi's lawyers led by South African senior counsel Mr Roland Sutherland that as much as a Botswana president enjoys constitutionally guaranteed immunity from court action, this is not absolute.

Section 41 subsection (1) of the Botswana constitution says that: "Whilst any person holds or performs the functions of the office of president, no criminal proceedings shall be instituted 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 in his or her private capacity".

Mr Sutherland asserted that if Section 41 of the Botswana Constitution is to be taken to mean what the defence says (absolute immunity), the president of the BDP would not be accountable at all.

"The wicked irony would be that the party that put him in office would have no way of seeking recourse if he did not deliver," Sutherland stated. "We say if he takes office in a voluntary organisation, he must be accountable in the practice of his office in that organisation," he stated.

Mr Sutherland submitted that the BDP is a members' organisation like a tennis a club, hence in running its affairs, President Khama is liable to litigation. He said that a president suing or being sued by an organisation that he is a member of does not harm the state.

He argued that the powers of the BDP president must be exercised in the context of adherence to the spirit of democratic ethos and must not be unilaterally exploited. "All decisions of the party must be taken democratically," he submitted.

He accused President Khama of suspending Motswaledi not to enforce party unity but to stem criticism against him.

Sutherland said before the suspension, Khama should have instituted a preliminary inquiry on the accusations against Mr Motswaledi but this never happened.

He challenged the mandate of the lawyers representing Khama and the BDP saying they are not properly before court.

"The powers to decide whether or not to oppose these proceedings lie with the (BDP) central committee," he stated. He asserted there were no special circumstances to warrant the suspension of Mr Motswaledi as per Section 34 of the BDP constitution.

President Khama's legal team spearheaded by South African lawyer Mr Edward Fagan countered that there is no room in the Botswana Constitution for 'tennis club' situations.

Mr Fagan argued that Khama's immunity is absolute. "The constitution is clear. What is the language of the section? The drafters of the constitution wanted to protect the highest office in the country from time-consuming litigation. There is no middle ground between private and official," he asserted.

He said it would be extremely risky to waive the immunity because this will open the doors for anyone to sue a sitting president. He said if the president does not enjoy immunity, it would interfere with state functions as he will have to depose affidavits from time to time.

He argued that the president should not waste time dealing with matters of litigation. Mr Fagan told the court that it should not buy the idea that the president could easily abuse constitutional provisions.

The court burst into laughter whenever Mr Fagan fumbled in answering questions fired by the judges. The lawyer groped in the dark when asked by Justice Kirby what was so politically serious to justify the suspension of Mr Motswaledi.

"It seems to me the nature of the complaint is justified" was the reply Mr Fagan gave when Justice Lesetedi asked him whether given his powers, President Khama acts at face value or institutes preliminary investigations after receiving complaints.

The court audience burst into laughter again when Mr Fagan failed to answer Justice Lesetedi who asked: "If Motswaledi was to wait and sue after the respondent's (Khama) term. What would be his remedy?"

The court case is another phase of the factional war pitting President Khama and his allies in the A-Team or Nkate-Merafhe faction against the Kedikilwe-Kwelagobe faction better known as the Barataphathi (those who love the party).

To the utter chagrin of Khama, the Kedikilwe-Kwelagobe faction made a clean sweep of all party positions during elections held in July.

Since then, Khama has been trying to regain the initiative by using the BDP constitution and make decisions to by-pass the party central committee. The war resulted in a head-on clash between Khama and Mr Motswaledi who was backed by a majority of members of the party central committee.

When Mr Khama instructed party lawyers to publicly exonerate him from accusations of running the BDP unilaterally, Mr Motswaledi wated no time in hitting back. He told-off the lawyers with a hard-hitting letter and followed it up with another tough missive to President Khama who reacted by suspending him.

President Khama said he suspended Mr Motswaledi because he was undermining his authority, dragging the name of the BDP in the mud and perpetuating factionalism. Attempts by BDP elders led by Botswana's former presidents, Sir Ketumile Masire and Mr Festus Mogae to strike a deal between Mr Motswaledi and President Khama failed after several meetings.

Whichever way the three-man bench rules on Friday, there is agreement that President Ian Khama will be the loser in the case after he became the first sitting head of state in Botswana to be a direct subject of court proceedings.