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AG’s failure to subpoena Khama leads to 1.7 million win for Chimbombi

Former President Lt. Gen Ian Khama’s absence in court to corroborate evidence brought by Attorney General Abram Keetshabe and Permanent Secretary to the President (PSP) Carter Morupisi, has led to a decision by the High Court to order for a payment of P1.7 million to the expelled former Permanent Secretary Dr. Micus Chimbombi.

Chimbombi’s contract as PS in the Ministry of Agriculture and Food Security was terminated in 2015, under dubious circumstances by both Keetshabe and Morupisi who were alleging to be acting on behalf of the government and employer at the time; Khama. Incidentally, Khama endorsed Chimbombi for the candidacy of Kgalagadi South under the Umbrella for Democratic Change (UDC) party ticket in the run up to the just ended 2019 General Elections.  

Interestingly, when delivering judgment this week, Justice Busang said “the Attorney General chose not to subpoena Khama [the then President] to attend court and give evidence,” while adding that then “it follows therefore that consequence of such decision shall have a bearing on whether their evidence without Khama’s corroboration or confirmation is to be believed.”  The Judge pointed out that it became apparent during Morupisi’s evidence that certain explanations could, only be provided by Khama (himself).

Therefore, Busang stressed that he “cannot be faulted for believing that Morupisi and Keetshabe knew more than what he knew would be detrimental to his interests if he did not do as asked.” As a result he ruled that the termination of Chimbombi’s contract of employment by the Defendants (Khama, Keetshabe and Morupisi) “was procured through undue influence and was consequently unlawful.”

He further ordered the “Defendants (government) to pay Chimbombi the total sum of P1 710 090.20, representing all the remuneration and other financial benefits which would have been due to him for the balance of his fixed term contract of employment.” The claimed sum of P1 710 090.20, he explained, is arrived at by adding the monthly salary of P55 164.20, made of P39 403.00 plus 40% scarce skills allowance. The total earnings for 28 months would have totaled P1 544 597.60; 65 days for leave days P165 492.61, the Judge highlighted.

According to the High Court Judge, Morupisi and Keetshabe took advantage and abused their positions, access and proximity to power to eject Chimbombi from the civil service. “I find that there was a mutual agreement for the termination of Chimbombi’s contract of employment, which was procured through undue influence. One of its terms was that Chimbombi would be paid the balance of his contract of employment or some reasonable amount, a term which the Defendants breached,” the Judge highlighted.

Chimbombi, he added, had no reason to disbelieve what Morupisi told him was the employer’s position in relation to his contract of employment. “Given the speed at which Keetshabe gratuitously moved and his general conduct on the 5th October, I have no doubt in concluding that the urgency with which Chimbombi was required to submit the (resignation) letter greatly influenced him,” Busang further pointed out.  

The influence, he said was obtained at his expense as he was under so much pressure that he was incapable of exercising his mind to form an independent and objective opinion, and had no option but to succumb. He further observed that on the basis of the Defendant’s own contradictory pleadings with respect to the legal basis for Chimbombi’s exit; the inadequate evidence- the evidence contradicting itself and the pleadings- had no basis in law and fact for Chimbombi’s contract to be terminated.

“The discussion to mutually separate, initiated by Morupisi never touched on Chimbombi’s failure to perform. He was never told that separation is based on projects or their failure. On the basis of the Court of Appeal’s decision in Phuthego and others v Barclays Bank of Botswana Ltd, I do not see any reason why Chimbombi cannot be paid the balance of his contract and all the related contractual benefits,” Busang maintained.

His contract of employment, it is understood, provided for termination but it could be terminated if he was found guilty of misconduct; has failed by reason of infirmity of mind or body to carry out the functions of his office satisfactorily or the performance standard set under the contract relating to his appointment; if he failed to carry out the functions of his office satisfactorily, and had without the consent of the appointing authority engaged in other remunerative employment, occupation or business. However, court heard that Ministry of Agriculture got position one (1) in the reviews just before Chimbombi was asked to exit the Public Service by mutual separation.

Court also questions AG Keetshabe’s religious beliefs

The Judge pointed out that in his view Keetshabe’s conduct on the matter was unbefitting of both a Christian and a lawyer. “Christians are known to have a sense of empathy and compassion; I do not see that in the way Keetshabe approached the matter. He was in my view not motivated by any altruistic considerations; on the contrary he was serving other interests that are best known to himself,” he asserted.  

He also observed that Lawyers are generally expected to conduct themselves in a manner which is professional; ethical; independent and beyond reproach at all times especially when dealing with matters that may affect other people’s legal rights, regardless of whatever hurt they shall be putting on. Lawyers are not expected when discharging their professional mandate to do anybody’s bidding. They, he added, should be courageous enough to tell their client what the law provides, and not what the clients want to hear.

“What Keetshabe did in this case was tantamount to a doctor prescribing medicine to a patient without diagnosis or ascertaining if the patient had any allergies,” Justice Busang stated. During working hours civil servants are expected to discharge their mandate in terms of their contracts of employment, Justice Busang stated while adding that, religious beliefs are private matters which should not affect public servants professional responsibilities and cloud how they discharge their professional mandate.

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Ministers key to Masisi presidency revealed

7th December 2021
President Dr Mokgweetsi Masisi

President Dr Mokgweetsi Masisi has identified at least 12 cabinet ministers who form part of his long-term plans owing to their loyalty and tenacity in delivering his vision. Masisi, who will see-off his term in 2028 — provided he wins re-election in 2024 — already knows key people who will help him govern until the end of his term, WeekendPost has learnt.

Despite negative criticism towards ministers from some quarters over a number of decisions and their somewhat cold deliberations and failure to articulate government programs, Masisi is said to be a number one cheer leader of his cabinet. He is said to have more confidence in his cabinet and believes going forward they will reach the aspired levels and silence the critics.

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Free at last: Ian Kirby Speaks Out

6th December 2021
Justice Ian Kirby

The outgoing President of the Court of Appeal, Justice Ian Kirby, shares his thoughts with us as he leaves the Bench at the end of this year.

WeekendPost: Why did you move between the Attorney General and the Bench?

Ian Kirby: I was a member of the Attorney General’s Chambers three times- first in 1969 as Assistant State Counsel, then in 1990 as Deputy Attorney General (Civil), and finally in 2004 as Attorney General. I was invited in 2000 by the late Chief Justice Julian Nganunu to join the Bench. I was persuaded by former President Festus Mogae to be his Attorney General in 2004 as, he said, it was my duty to do so to serve the nation. I returned to the Judiciary as soon as I could – in May 2006, when there was a vacancy on the High Court Bench.

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Civil society could rescue Botswana’s flawed democracy’ 

6th December 2021
Parliament

Botswana’s civil society is one of the non-state actors that could save the country’s democracy from sliding into regression, a Germany based think tank has revealed.  This is according to a discussion paper by researchers at the German Development Institute who analysed the effects of e-government usage on political attitudes In Botswana.

In the paper titled “E-government and democracy in Botswana: Observational and experimental evidence on the effects of e-government usage on political attitudes,” the researchers offer a strongly worded commentary on Botswana’s ‘flawed democracy.’  The authors noted that with Botswana’s Parliament structurally – and in practice – feeble, the potential for checks and balances on executive power rests with the judiciary.

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