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Can the President waive his protection from legal proceedings?

Publishing Date : 18 February, 2019

Ndulamo Anthony Morima

Recently, there were reports that His Excellency the President, Dr. Mokgweetsi Keabetswe Eric Masisi, was contemplating waiving his protection from legal proceedings as provided by section 41 of the Constitution of Botswana as regards the National Petroleum Fund (NPF) case.

Following these reports, other reports emerged that H.E Dr. Masisi had, in fact, never contemplated waiving his protection from legal proceedings and would, in fact, not do so. In response to this, some claimed that the reason H.E Dr. Masisi does not want to waive his protection from legal proceedings is that he knows he would be found guilty considering the wrongs he has committed with respect to the NPF saga.

I may have missed it, but one would have expected a press release from the Attorney General clarifying the matter with respect to whether it is even possible for the President to waive his protection from legal proceedings. In this article, we attempt to do so. But before doing so it is apposite that we make an exposition of the law relating to the President’s protection from legal proceedings.

Section 41(1) of the Constitution provides that ‘whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his official capacity or in his private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him in respect of anything done or omitted to be done in his private capacity.’

Section 41(2) of the Constitution provides that ‘where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the term of any person in the office of President shall not be taken into account in calculating any period of time prescribed by that law which determines whether any such proceedings as are mentioned in subsection (1) of this section may be brought against that person.’

In Motswaledi v Botswana Democratic Party and Others 2009 2 BLR 269 HC the High Court held that “… section 41(1) means that the president was granted immunity from criminal prosecution in respect of any acts allegedly done or not done by him or her 'either in his or her official capacity or in his or her private capacity”. According to the judgment, section 41(2) grants the president immunity from civil proceedings 'in his or her private capacity' only.

As is common cause, the High Court decision was confirmed by the highest court in Botswana, the Court of Appeal (CoA), in Motswaledi v. Botswana Democratic Party and Others 2 2009 2 BLR 284 CA. Before I proceed, I need to state that contrary to some belief, the President is not, in his official capacity, protected from civil proceedings. Civil proceedings can, therefore, be commenced against the President in his official capacity as Head of State. The same applies to the State itself.

This much was confirmed by the CoA in the Motswaledi case when it said “…until relatively recently in the history of the Roman Dutch and the English law, the doctrine that 'the King is above the law' was interpreted to mean that no civil action could be instituted against the ruler, and, by extension, against the State…”

The CoA continued to say “…however, in modern times, it has been recognized that this is wrong. Legislation has been passed to provide that the State may be sued and that the President may be sued in his official capacity. See State Proceedings (Civil Actions by or against Government or Public Officers) Act (Cap 10:01)”.  Back to the question ‘can the President waive his protection from legal proceedings’? Once more, I beg your indulgence to digress before attempting to answer the question. It seems, to me, important that we seek to understand the importance of section 41.

The CoA, in the Motswaledi case, quotes Professor Daniel Nsereko, in his book, Constitutional Law in Botswana D (Pula Press Gaborone Botswana 2002), at p 82, where he gives, as the importance of the protection granted by section 41, as 'the need to protect the dignity of the office of the President (and) . . . to ensure that the President has as much freedom as possible in the due execution of the duties of his high and exacting office…”

Professor Nsereko continues to say “… it is assumed that court proceedings are likely to distract and preoccupy his mind: they are likely to embarrass him or hamper him in the due execution of those duties. This is particularly so because executive power is vested in a single individual.”

Of course, there are those opposed to Professor Nsereko’s view, arguing that the protection is undemocratic and unconstitutional and subverts the rule of law. In the Motswaledi case, at the CoA, R T Sutherland SC, argued that section 41(1) was in some way 'unconstitutional' because it was in conflict with the generally democratic nature of the Constitution read as a whole. This argument was not sustained because the CoA held that “…a clause in a constitution cannot by definition be unconstitutional.”

The CoA also rejected Sutherland SC’s argument that section 41 ought to be 'purposively' interpreted so as to align it with the basic democratic spirit of the rest of the Constitution. The CoA held, firstly, that it is trite that one may only apply a purposive construction where there is ambiguity, but no ambiguity arose from section 41. Secondly, it held that it is common cause that many democratic countries throughout the world have similar immunity clauses.

The CoA held that these protection clauses are all justified on the basis that it is in the public interest that the democratic good, i.e. equality before the law as canvassed by Sutherland SC,  should in this instance accommodate another good, namely that the Head of State be not impeded in the execution of his duties in the service of the very democracy that Sutherland SC is talking about.

To buttress its point, the CoA cited the case of S v Zuma and Others 1995 (2) SA 642 (CC) at p 653 para 18 where Kentridge AJ made the point that ' we must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the language of which must be respected…”

Kentridge AJ continued to say “…If the language used by the lawgiver is ignored in favour of a general resort to "values" the result is not interpretation but divination. If I may again quote S v Moagi 1982 (2) B.L.R. 124, CA, I would say that a constitution ‘embodying fundamental rights should as far as its language permits be given a broad construction’.

Having made an exposition of the law relating to the President’s protection from legal proceedings, and having heard arguments both for and against the protection, it now remains for us to finally answer the question ‘can the President waive his protection from legal proceedings’?

Section 41 is couched in mandatory terms in that it uses the word ‘shall’, not ‘may’. It, therefore, ousts anyone’s discretion respecting its application. In my view, not even its supposed beneficiary, the President, can waive the rights flowing therefrom. After all, the President is himself, like all Batswana, subject to the Constitution though he has certain privileges and protections. In fact, the Oath of President a president takes in terms of section 37 of the Constitution enjoins him to not only respect the Constitution, but to also protect it. This includes section 41.

I say supposed beneficiary because, in truth, it is not the President, as a person, who is meant to benefit from it. It is the President’s masters, the people, who are meant to benefit from it through the protection of their servant, the President, so that he may serve them unhindered. Of course, we live in an imperfect world where state functionaries like presidents abuse the rights and privileges granted to them by the people, but that is no reason to derogate from the original will of the people-the Constitution.

Such aberrant presidents are to be left to democracy which, though also imperfect, and was never perfect even during the era of Cleisthenes, the ‘Father of Athenian Democracy’, can punish them by removal from office through motions of no confidence or elections. So, H.E Dr. Masisi cannot, even if he wanted to, waive the protection from legal proceedings granted to him by the Constitution. Even if he were truly innocent respecting the NPF allegations, he cannot waive the protection in order to prove his innocence.



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