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BCP withdraws Masisi constitutional case

Publishing Date : 30 April, 2018


Opposition Botswana Congress Party (BCP) has dropped a case in which they were challenging the ascendance of Mokgweetsi Masisi to the presidency.

Basically the party was citing that Masisi is not the substantive president as he was not duly elected to become president by parliament. BCP Spokesperson Dithapelo Keorapetse told WeekendPost on Thursday that they have lost confidence in the judiciary owing to handpicking of preferred judges for high magnitude cases by Chief Justice (CJ) Maruping Dibotelo. The case affects the constitution of the country.

CJ has removed Justice Michael Mothobi, who was initially allocated the case, and empanelled the bench by Justice Tebogo Tau, Justice Barnabas Nyamadzabo and Justice Tshepo Motswagole. “We have no confidence in the process of hand picking judges by the Chief Justice instead of allowing the system to do so,” Keorapetse explained to this publication on Thursday following withdrawal of the case.  

In the court papers, precisely the party’s withdrawal affidavit passed to this publication, BCP Secretary General Akanyang Magana, through official party attorney Martin Dingake of Dingake Law Partners, said they withdrew because the manner in which the Administration of justice has dealt with the case is inconsistent with the minimum standards of judicial decency.

“We have  resolved  to  withdraw the  case  as we do  not believe that we will get  justice from the  process  as structured  by the Administration of Justice,” the party stated in the affidavit of withdrawal before the courts. The party explained that one of the empowered Judges have tendered an apology to the Chief Justice Dibotelo for a Petition which he signed with other judges in which he ‘apologised’ and expressed himself as having been influenced by ‘mob psychology’ in signing the apology.

“It is clear that the said Justice is prone to peer-pressure if he were to preside over a case in which he sits with other two (2) Justices,” the BCP stated. The party continued: “it is our respective view that this is a classic case of  misuse of the  law to suppress our  rights and  interest to due  process. We were not told of the criterion that was used to impanel the judges. The Administration of Justice did not have the decency even to notify us of its decision to impanel three judges. The system of selection of the impaneled judges remains classified information, this cannot be justice.”   

The party also highlights that the clandestine manner in which Justice Michael Mothobi (who initially was to preside over the case) was removed from the case and the lack of transparency in the empanelment of the judges has left the party with no doubt that there was an ulterior motive in the process of empanelment and that it was done to achieve a declared objective.  

“We do not know who would have endorsed Justices Tau and Nyamadzabo, if such     cover had been prepared and endorsed. We write to express our deep concern with this, and find the composition illegal and not sanctioned by law.”
According to the BCP, a panel may hear and dispose of the case if the Chief Justice has determined the need to do so and that (Section 6 of the Act), the Chief Justice must record such a decision and provide a basis for it and communicate it to the parties (which did not happen).

Dingake has in his filing notice faulted the Speaker of the National Assembly Gladys Kokorwe for failing to convene parliament for the election of the president seven (7) days after Lt. Gen. Dr. Seretse Khama Ian Khama resigned. This came after Khama resigned in March 31, and Masisi then as per automatic succession, assumed the presidency of the country on April 1, 2018.  

According to the party, currently in terms of the law, there is no president in Botswana. “I am advised by my attorneys of record which advice I verily believe to be true and correct that the office of the President is currently vacant due to the failure to implement the constitutional requirements of Section 35 of the constitution,” The BCP Secretary General Magama stated then in the party filing affidavit.



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