- BCP serves Parley Speaker with intention to sue notice
- Masisi is not a substantive holder of the presidency office
- Tsogwane’s Vice-presidency also challenged
The Botswana Congress Party (BCP) has petitioned the speaker of parliament, Gladys Kokorwe over the legitimacy of the presidency of Mokgweetsi Masisi, saying as per the constitution, Masisi is not the substantive president of Botswana.
Masisi assumed the presidency in terms of Section 35 (1) of the constitution following vacancy in office on 1st April 2018 when Ian Khama vacated the office following the expiration of his term.
The BCP however argues that only presidents who hold office in terms of Section 32 and Section 35 (4) are substantive holders of office with the power to make appointments, revoke the appointment of vice president or dissolve parliament.
“His Excellency President Mokgweetsi E.K Masisi is neither a Section 32 nor Section 35 (2) president. Further, he did not ascend to the office of president following an election by parliament. And to this extent, does not qualify as one (President) under Section 35 (4) as read with Section 35 (5) of the Constitution,” reads the BCP petition presented by attorney Martin Dingake.
The opposition party says President Masisi therefore remains and has always been a Section 35 (1) President and must be treated as such. The constitution, in terms of Section 35 (3) provides that a Section 35 (1) president “shall not exercise the powers of the president to revoke the appointment of vice president or dissolve parliament”.
“By making provision for the election of the president under Section 35 (4) as read with Section 35 (5) of the constitution following vacancy in the office of president and limiting the powers of the Section 35 (1) and Section 35 (2) presidents, it is clear that the drafters of the constitution in their infinite wisdom thought it wise to sanitize or transform the powers of these types of presidents by subjecting them to an electoral process in the National Assembly by secret ballot, and to enable them to exercise such powers as maybe conferred on them by law without any limitation,” argues BCP.
Until such a president is sanitized or transformed as the case maybe, their powers are limited to the extent provided by Section 35 (3) of the constitution, argues the BCP further.
On 4th April 2018, the National Assembly was convened for the purposes of endorsing and swearing the vice president.
The endorsement of the vice president was done by the National Assembly following his appointment by a Section 35 (1) president. The BCP says the appointment and subsequent endorsement was a revocation of the appointment of the vice president, a power which a Section 35 (1) president shall not exercise and does not have under Section 35 (3) of the constitution.
“The sanitization of a Section 35 (1) president shall take place on the “seventh (7) day after the office of president becomes vacant, or on such earlier day as may be appointed by the speaker,” as provided for under Section 35 (4) of the constitution,” protests the BCP which further argues that a reading of Section 127 (5) of the constitution reinforces the limitations of the powers of Sections 35 (1) and 35 (2) presidents.
“To the extent that you have not convened the National Assembly on such earlier date for election of the president, our clients demand that you give an undertaking to us in writing, not later than the 7th April 2018 at 12hrs 00min that you will convene the National Assembly for purposes of election of the president under Section 35 (4),” the party says in the letter.
The BCP further informs the speaker that they intend to go to court if they are ignored. “We hold instructions to approach court on an urgent basis if no undertaking is given and within the requested period of time for an appropriate injunction. We have copied this letter for the attention of the attention the Attorney General as the principal legal advisor to the President and for the interest he has or may have on the matter, and whom we shall cite as a party in the contemplated proceedings should they come to fruition,” reads the letter.
The party rubbished the view that some concerns must be taken to the Chief Justice saying “as regards the view that questions arising from Section 38 (2) (a) and (b) of the constitution must be referred to and determined by the returning officer (“the Chief Justice”), our clients submit that the returning officer cannot properly exercise a constitutional power conferred on him in respect of which he is or appears to be conflicted.”
They continued: “Further and or alternatively, the Chief Justice as an appointee of the president, a returning officer and as a person who administers oath or has administered oath is too involved as to exercise appropriate judgment on matters in which he previously has participated in without being accused of bias.”
“It is doubtful and highly arguable that a Section 35 (1) president, subject to a sanitization process has a prescribed oath of office or must take oath of office when an earlier election maybe held before or within seven (7) days without the risking of preempting or being accused of preempting the envisaged election of the President under Section 35 (4) as read with Section 35 (5) of the Constitution,” concluded the BCP.
Kokorwe said she was aware of the issue but referred this publication to the Attorney General who she said had already publicly expressed his views on the matter.