Kamal Jacobs’ chances at winning his case against the legitimacy of President Mokgweetsi Masisi Botswana Democratic Party (BDP) President seem to be waning if remarks by Justice Michael Mothobi are anything to go by.
Jacobs, a BDP member who was vanquished in the last BDP primaries for the Lobatse constituency sought the court’s intervention after the party’s appeals board turned down his application for a re-run.
Although Mothobi is yet to deliver judgment on the matter in which Masisi’s presidential immunity was questioned, he mentioned that, a 2009 Court of Appeal judgment on Gomolemo Motswaledi’s case against the BDP and its then president, Seretse Khama Ian Khama was a “binding precedence.”
In the case, Motswaledi had tried to sue Khama, but lost the case due to the presidential immunity enshrined under Section 41 (1) which states that the country’s sitting president cannot be sued for actions that he or she undertakes on private capacity.
In the current case Jacobs who lost to Dr Thapelo Matsheka in the primary elections, wants the court to declare Masisi an illegitimate president of the BDP and that any decision he took related to the party’s recent primary elections be declared null and void.
Jacobs made the application after his appeal against the results was rejected by the party’s appeal’s board, which he is also suing.
The logical starting point to the matter was therefore the immunity section which had earlier been raised by attorneys of the respondents.
Jacob’s attorney, Kagisano Tamocha, was seemingly at pains trying to argue his case against the said section.
Tamocha told the court that presidential immunity does not apply in the current case as it seeks to deal exclusively with the constitution of the BDP, but Justice Mothobi reminded him that the Court of Appeal has already, “set a precedence, even if we can duck and dive; we are bound by the decision of the appeal’s court,” Mothobi advised Tamocha.
Earlier in the same court, the Attorney General’s Chief State Counsel, Otlaadisa Kwape, advised court that the sitting president can only be sued on a civil matter, when he had acted on official capacity.
“Presidential immunity is given under two circumstances, criminal and civil suit. For criminal proceedings, the president is given immunity in his private and official capacity. In civil matters, immunity is only extended in actions he or she undertook on private capacity,” Kwape explained.