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Dick Bayford’s warning in UDC, BMD case

A well-established private attorney who is also a senior partner at Bayford and Associates, Dick Bayford has sent a chilling alert to the High Court of Botswana cautioning them against making a judgement that may have the hallmarks of causing chaos in the impending 2019 General Elections.  

Bayford said this when making presentations on the capacity as and from attorney perspective in a case in which they are representing the main opposition party in parliament – at court – Umbrella for Democratic Change (UDC). In the case the Botswana Movement for Democracy (BMD) are challenging their expulsion from the umbrella party which is now left with Botswana National Front (BNF), Botswana Peoples Party (BPP) and Botswana Congress Party (BCP) in their endeavour to unseat the ruling Botswana Democratic party (BDP).

Bayford set the context by stating that as a matter of fact currently the UDC remains the leading opposition party in the country as it comprises various political formations. “So, if by some stroke of luck, the BMD is able to go to court and later get an interdict that says UDC must not contest elections; effectively the courts would be saying that the ruling BDP must be retained to power unopposed,” the well regarded attorney told a pack of journalists in a press briefing this week in Gaborone.

He said the court must then consider this very closely if it will augur well with the constitutional democracy that reigns in this country. The courts, he added must think hard whether it is desirable effectively to have one party running and contesting elections. “Whether it will be healthy for a democracy, whether it will conduce to peace and tranquillity in the country. Those are the considerations that any court, properly advised, would have to deal with,” Bayford said.

He further pointed out that it is very easy for the court to say that they are going to stop the UDC from contesting an election but then if people were to reflect carefully and to look at whether in fact it is practically to do that I would say it is not. In his view, “that would plunge this country into a very chaotic situation.” I don’t know, he continued, if the BMD is committed to democracy in this country that would be reminded about this cost.

The law guru emphasised that what the BMD is asking for in court has nothing to do with the coming elections. “They have been saying that the UDC is not going to be permitted to campaign or run these coming elections on as UDC. I think that is totally false.” According to Bayford, they are only saying the court must nullify the suspension of the BMD from the UDC, which is basically academic because that suspension was also followed by expulsion and so it’s a non-issue.

He said the second issue that they are raising is that, as a relief, they say that the court must state that their expulsion from the UDC is null and void. “So as regards to processes in relation to elections and preparation they mention nothing. It is only now that they are bringing the argument hiding behind self-created urgency that UDC is not allowed to contest. It is an empty statement,” the UDC lawyer brushed the issue aside.

He continued to stress therefore that “there is no case before court intending to bar the UDC from contesting the election in its own right.” The anti-establishment attorney further took a chilling attack to the BMD leadership by stating that “I must say with due respect to the leadership at the BMD that there is a total figmentation of their minds.” 

Is UDC dragging its feet in the matter to reach impending elections?

So this case, Bayford narrated that the UDC first became aware of the case on the 14th December 2018 while the decision to expel the BMD having been taken way back on the 25th October 2018. UDC was only permitted to respond to the complaint at the beginning of the legal year commencing 1st February.

“Once the decision to expel the BMD, the party was fully informed of its right to lodge an appeal to the supreme decision body of the UDC which is congress. But rather the BMD decided not to utilise the option that is to exhaust the domestic revenue before they took the decision to rush to court,” he explained.

As you know recently, Bayford reminisced: I was involved in a case brought by Pelonomi Venson Moitoi and some of the authorities that were cited by the High Court in the judgement was that matters relating to political parties are best left to the political parties to determine.
“Now we expect that if the High Court is going to be consistent in its findings it should in all likelihood assume in its position that it’s important that members of a political party feeling aggrieved by an decision taken by their party should embark on the internal processes of their party before they opt for court,” he argued.

“When we were in court a statement was made by the BMD to the effect that UDC is delaying the case. We take issue with that statement because it is totally deficient of any truth. BMD decided to sit on their laurels from the 25th October to the 14 December and effectively to the 1st February 2019.”

Bayford also observed that when the BMD went to court they did not ask the court to determine on their case on grounds of urgency. “I keep referring to the Venson-Moitoi case; people keep saying that the case was ran through the day and decision taken at night. This was because of the manner in which Venson Motoi lodged the case as it was on urgency basis,” he justified.

The legal nature of the BMD/UDC court case

According to Bayford, the case takes the form of a review application which means it differs from the appeal in that when someone goes to court to seek a review of a decision it must be shown that the matter falls within the arena of public and not private law. He added “secondly a review will concern itself with legality either in substance or procedural and it does not deal with the rational or facts of the case. In an appeal when someone appeals because is aggrieved, they would be allowed to carry out a narration of the facts and ask court to make a determination or findings that were made by the lower court.”

If this case was to succeed, the renowned attorney said the court is not going to say that the facts were wrong but that the decision that was made by the UDC was wrong. What the court might say, he continued, is that the procedure that was adopted by the UDC in arriving at that decision was wrong, and that is the distinction.

“No way that the High Court is going to subpoena the powers of UDC it being a voluntary organisation governed by its rules and regulations to take a decision,” he concluded. Bayford sat with other UDC lawyers while making the presentations in the matter being Boingotlo Toteng, a senior Partner at Toteng attorneys and Dutch Leburu who is a partner at Monthe Marumo attorneys.

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Civil Service volatility: Democracy vs Bureaucracy

19th April 2021
President Masisi

Here is how one Permanent Secretary encapsulates the clear tension between democracy and bureaucracy in Botswana: “President Mokgweetsi Masisi’s Government is behaving like a state surrounded with armed forces in order to capture it or force its surrender. The situation has turned so volatile, for tomorrow is not guaranteed for us top civil servants.

These are the painful results of a personalized civil service in our view as permanent secretaries”. Although his deduction of the situation may be summed as sour grapes because he is one of the ‘victims’ of the reshuffle, he is convinced this is a perfect description of the rationale behind frequent changes and transfers characterising the current civil service.

The result of it all, he said, is that “there is too much instability at managerial and strategic levels of the civil service leading to a noticeable directionless civil service.” He continued: “Changes and transfers are inevitable in the civil service, but to a permissible scale and frequency. Think of soccer team coach who changes and transfers his entire squad every month; you know the consequences?”

The Tsunami has hit hard at critical departments and Ministries leaving a strong wave of uncertainty, many demoralised and some jobless. In traditional approaches to public administration, democracy gives the goals; and bureaucracy delivers the technical efficiency required for implementation. But the recent moves in the civil service are indicative of conflicting imperatives – the notion of separation between politicians and administrators is becoming blurred by the day.

“Look at what happened to Prisons and BDF where second in command were overlooked for outsiders, and these are the people who had sacrificially served for donkey’s years hoping for a seat at the ladder’s end. The frequency of the changes, at times affecting the same Ministry or individual also demonstrates some level of ineptitude, clumsiness and lack of foresight from those in charge,” remarked the PS who added that their view is that the transfers are not related to anything but “settling scores, creating corruption opportunities and pushing out perceived dissident and former president, Ian Khama’s alleged loyalists and most of these transfers are said to be products of intelligence detection.”

Partly blaming Khama for the mess and his unwillingness to let go, the PS dismissed Masisi for falling to the trap and failing to outgrow the destructive tiff. “Khama is here to stay and the sooner Masisi comes to terms with the fact that he (Masisi) is the state President, the better. For a President to still be making these changes and transfers signals signs of a confused man who has not yet started rolling his roadmap, if at all it was ever there. I am saying this because any roadmap comes with key players and policies,” he concluded.

The Ministry of Health and Wellness seems to be the most hard-hit by the transfers, having experienced three Permanent Secretaries changes within a year and a half. Insiders say the changes have everything to do with the Ministry being the centre of COVID-19 tenders and economic opportunities. “The buck stops with the PS and no right-thinking PS can just allow glaring corruption under his watch as an accounting officer. Technocrats are generally law abiding, the pressure comes with politically appointed leaders racing against political terms to loot,” revealed a director in the Ministry preferring anonymity.

The latest transfer of Kabelo Ebineng she says was also motivated by his firm attitude against the President’s blue-eyed Task Team boys. “The Task Team wants to own the COVID-19 pandemic and government interventions and always cry foul when the Ministry reasserts itself as mandated by law,” said the director who added that Masisi who was always caught between the crossfire decided on sacrificing Ebineng to the joy of his team as they (Task Team) were in the habit of threatening to resign citing Ebineng as the problem.

Ebineng joins the Office of the President as a deputy Coordinator (government implementation and coordination office).The incoming PS is the soft-spoken Grace Muzila, known and described by her close associates as a conformist albeit knowledgeable.

One of the losers in the grand scheme is Thato Raphaka who many had seen as the next PSP because of his experience and calm demeanour following a declaration of interest in the Southern African Development Community (SADC) Secretary post by the current PSP, Elias Magosi.

But hardly ten months into his post, Raphaka has been transferred out to the National Strategy Office in what many see as a demotion of some sort. Other notable changes coming into OP are Pearl Ramokoka formerly with the Employment, Labour and Productivity Ministry coming in as a Permanent Secretary and Kgomotso Abi as director of Public Service Reforms.

One of the ousted senior officers in the Office of the President warned that there are no signs that the changes and transfers will stop anytime soon: “If you are observant you would have long noticed that the changes don’t only affect senior officers but government decisions as well. A decision is made today and the government backtracks on it within a week. Not only that, the President says this today, and his deputy denies it the following day in Parliament,” he warned.

Some observers have blamed the turmoil in the civil service partly to lack of accountable presidential advisers or kitchen cabinet properly schooled on matters of statecraft. They point out that politicians or those peripheral to them should refrain from hampering the technical and organizational activities of public managers – or else the party (reshuffling) won’t stop.

In the view expressed by some Permanent Secretaries, Elias Magosi, has not really been himself since joining the civil service; and has cut a picture of indifference in most critical engagements; the most notable been a permanent secretaries platform which he chairs. As things stand there is need to reconcile the imperatives of democracy and democracy in Botswana. Peace will rein only when public value should stand astride the fault that runs between politicians and public managers.

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Morupisi fights for freedom in court

19th April 2021
morupisi

Former Permanent Secretary to the President, Carter Morupisi, is fighting for survival in a matter in which the State has charged him and his wife, Pinnie Morupisi, with corruption and money laundering.

Morupisi has joined a list of prominent figures that served in the previous administration and who have been accused of corruption during their tenure in office. While others have been emerging victorious, Morupisi is yet to find that luck. The High Court recently dismissed his no case to answer application.

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Pressure mounts on Biden to suspend Covid-19 vaccine patents

19th April 2021
Joe Biden

United States President, Joe Biden, is faced with a decision to make relating to the Covid-19 vaccine intellectual property after 175 former world leaders and Nobel laurates joined the campaign urging the US to take “urgent action” to suspend intellectual property rights for Covid-19 vaccines to help boost global inoculation rates.

According to the world leaders, doing so would allow developing countries to make their own copies of the vaccines that have been developed by pharmaceutical companies without fear of being sued for intellectual property infringements.

“A WTO waiver is a vital and necessary step to bringing an end to this pandemic. It must be combined with ensuring vaccine know-how and technology is shared openly,” the signatories, comprising more than 100 Nobel prize-winners and over 70 former world leaders, wrote in a letter to US President Joe Biden, according to Financial Times.

A measure to allow countries to temporarily override patent rights for Covid related medical products was proposed at the World Trade Organization by India and South Africa in October, and has since been backed by nearly 60 countries.

Former leaders who signed the letter included Gordon Brown, former UK Prime Minister; François Hollande, former French President; Mikhail Gorbachev, former President of the USSR; and Yves Leterme, former Belgian Prime Minister.

In their official communication, South Africa and India said: “As new diagnostics, therapeutics and vaccines for Covid-19 are developed, there are significant concerns [about] how these will be made available promptly, in sufficient quantities and at affordable prices to meet global demand.”

While developed countries have been able to secure enough vaccine to inoculate their citizens, developing countries such as Botswana are struggling to source enough to swiftly vaccine their citizens, something which world leaders believe it would work against global recovery therefore proving counter-productive.

Since the availability of vaccines, Botswana has been able to secure only 60 000 doses of vaccines, 30 000 as donation as from the Indian government, while the other 30 000 was sourced through COVAX facility.  Canada, has pre-ordered vaccines in surplus and it will be able to vaccinate each of its citizens six times over. In the UK and US, it is four vaccines per person; and two each in the EU and Australia.

For vaccines produced in Europe, developing countries are forced to pay double what European countries are paying, making it more expensive for already financially struggling economies.  European countries however justify the price of vaccines and that they deserve to buy them cheap since they contributed in their development.

It is evident that vaccines cannot be made available immediately to all countries worldwide with wealthy economies being the only success story in that regard, something that has been referred to as a “catastrophic moral failure”, head of the World Health Organisation (WHO), Tedros Adhanom Ghebreyesus.

The challenge facing developing countries is not only the price, but also the capacity of vaccine manufactures to be able to do so to meet global demand within a short time. The proposal for a patent waiver by India and South Africa has been rejected by developed countries, known for hosting the world leading pharmaceutical companies such US, European Union, the United Kingdom, and Switzerland.

According to the Financial Times, US business groups including pharmaceutical industry representatives, have urged Biden to resist supporting a waiver to IP rules at the WTO, arguing that the proposal led by India and South Africa was too “vague” and “broad”.

The individuals who signed the letter, including Nobel laureates in economics as well as from across the arts and sciences, warned that inequitable vaccine access would impact the global economy and prevent it from recovering.

“The world saw unprecedented development of safe and effective vaccines, in major part thanks to US public investment,” the group wrote. “We all welcome that vaccination rollout in the US and many wealthier countries is bringing hope to their citizens.”

“Yet for the majority of the world that same hope is yet to be seen. New waves of suffering are now rising across the globe. Our global economy cannot rebuild if it remains vulnerable to this virus.”
The group warned that fully enforcing IP was “self-defeating for the US” as it hindered global vaccination efforts. “Given artificial global supply shortages, the US economy already risks losing $1.3tn in gross domestic product this year.”

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