The Botswana Congress Party has commenced legal proceedings against the Ombudsman Augustine Makgonatsotlhe over his findings in the Mosu Report.
Through a 30-day Statutory Notice, the BCP has advised the Ombudsman of their intention to have the High Court review and set aside his findings on President Khama’s use of State resources at Mosu as well as to set aside his findings that the BCP was abusing the Ombudsman process claiming that his findings were wrong in law and so irrational and arbitrarily unreasonable.
On January 29, 2018 the Ombudsman issued his long-awaited report following an investigation into the alleged use of State resources to develop the Presidents private residence. The investigations were commenced in 2014 following a complaint filed with the Office of the Ombudsman by the Botswana Congress Party.
The BCP complaint among various other issues, raised concerns that the President was using his official capacity to develop for his private benefit his plot at Mosu, and that as a result he and his office were guilty of maladministration.
The Ombudsman found that the President could not be subjected to an investigation or a probe into his conduct either in his personal capacity or his official capacity. Based on this finding the Ombudsman did not investigate Khama’s conduct but opted to investigate selected departments. The Ombudsman report into the Mosu allegations did not seek to reconcile previous inconsistent explanations given in Parliament by Vice President Mokgweetsi Masisi and those by the former head of the Botswana Defence Force Galebotswe Gaolathe.
According to the Statutory Notice, the procedure adopted by the Ombudsman was wrong and fell outside of his statutory powers. In addition, the Notice states that the Ombudsman wrongly interpreted the law by finding that Khama enjoys absolute immunity from any investigation or probe. In his report the Ombudsman indicated that the legal basis for the total immunity of the president could be found in the interpretation of Section 41 of the Constitution and relied on the Court of appeal judgement in the Motswaledi case. The BCP argue that the Motswaledi case never granted immunity to the president for acts done in his official capacity but rather those done in his private capacity. As a result of the misinterpretation of the law, so the BCP argues, the entire investigation into Khama’s abuse of office was compromised.
Importantly the Notice indicates that the Ombudsman accepted the explanation that the Botswana Defence Force was mandated to provide security to the president and that the developments of the airstrip in Mosu would fall under their control. However, by law, the security of the president is not vested in the BDF but in the Directorate on Intelligence and Security (DIS). No attempt was made by the Ombudsman during his investigations to reconcile the legal basis for the BDF’s intervention in building the airstrip.
The Ombudsman found that the BDF built the airstrip using its own resources. In September 2013answering questions in Parliament the then Minister of Presidential Affairs and Public Administration MokgweetsiMasisistated that the cost of the airstrip formed part of the budget for presidential entitlements and came out of that budgetary vote. The BCP challenges the lack of an enquiry by the Ombudsman and his failure to ascertain from which budgetary vote the developments on Mosu were paid for, and, whether the allocation of funds from either or both the BDF or the presidential entitlement vote amounted to maladministration. The Ombudsman found that the Green Book which provides for entitlements does not specifically provide for the benefits Khama has enjoyed in Mosu.
The Notice by the BCP argues that the Ombudsman in fulfilling his statutory obligations acted so “irrationally and capriciously” that it amounted to acting outside the legal parameters of his powers. The BCP advises that it will seek an Order from the High Court not only to set aside the findings but to substitute the determination as they would not be afforded a fair investigation into their complaint in the event it was sent back.
Khama vacates the Office of the President at the end of March and will as a result lose any immunity from prosecution even for acts done during his tenure as state President.