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Political participation spat reaches CoA

Publishing Date : 13 March, 2018


The Court of Appeal (CoA) has reserved a date in which it will announce whether or not Section 37 (c) of the Public Service Act which prohibits industrial class workers from participating in politics is unconstitutional.

Section 37 (c) of the PSA states that, “It is a misconduct for an employee to engage in any activity outside his or her official duties which is likely to involve him or her in political controversy or to lead to his or her taking improper advantage  of his or her position in the public service.” A private attorney, Mboki Chilisa of Mboki Chilisa Attorneys is challenging the constitutionality of the said Act stating that it violates Section 12 (2) (c) of the constitution of Botswana.

Section 12 (2) (c)of the Constitution reads , “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-c)that imposes restrictions upon public officers, employees of local government  bodies, or teachers, and accept so far that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

Chilisa is calling on the Court of Appeal (CoA) to amend the said law which came into effect in 2010. The industrial workers are now bound by the provisions of the PSA and its terms and conditions of the service. The lawyer decries that the said PSA does not even define what a ‘political controversy’ is. “In short, the  constitutional argument is that it is not reasonably justifiable in a democratic society to limit the right to freedom of expression by imposing on public officers a blanket prohibition on the discussion of public affairs, where such may bring about controversy,” argues the lawyer.

He contends there is no reason why Botswana as a signatory to the International Covenant on Civil and Political Rights (ICCPR) and a member of the international community should not apply the Oakes test, which has attained the status of an international human rights norm, in assessing whether a derogation of the right to freedom of expression is reasonably justifiable in a democratic society.

Chilisa told the court that he does not doubt the importance of the said section as it is intended to serve the legitimate purpose of preserving the political neutrality of the public service, in order to prevent it from becoming politicized. And that he readily accepts and concedes that impartiality, neutrality, fairness and integrity are indispensable components of an efficient public service in any democracy.

“What I have a quarrel with are the means sought to achieve the goal of a political neutral, impartial and efficient public service. The means used are overbroad. They are not proportional and impair the right to freedom expression more than is necessary to attain the objective,” argues the lawyer.

He told the court that in the case of industrial workers, it can never be the case that off duty exercise of free speech that does not indicate support or opposition for particular political party, adversely affects the interests of the employer or impairs the ability of the employee to continue serving the government.

He stressed that these employees carry out manual work and are not responsible for formulating government policy or articulating it.  He said for the government to succeed in dismissing an employee, they ought to demonstrate that the said individual engaged in any activity outside his or her official duties which is likely to involve him or her in political controversy or that he engaged in any activity outside his official duties which is likely to lead his taking improper advantage of his position in the public service.

The lawyer was challenging the constitutionality of the said section while dealing with the case of a former public servant one Moagi Kobedi who was dismissed from work after registering to be elected to a political office. Kobedi was working as a night watchman at Sedibelo Community Junior Secondary School in Mochudi, and had registered as a candidate for Boseja North ward. He participated in the 2014 General Elections for a council seat. It was then that he was charged with contravening the provisions of Section 37 (c) of the PSA No. 30 of 2008. And was dismissed following a disciplinary hearing.

Kobedi had later in 2015 instituted an application seeking to be reinstated to his position or alternatively to be paid damages for unlawful dismissal and was granted the verdict in 2016. It was then that the government appealed the judgment. The government through Deputy Attorney Matlhogonolo Phuthego, told the CoA that Section 37 (c) is not unconstitutional. He said the declaration of the said section was for the common good of the whole country.



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