The Gaborone High Court, this week heard the much awaited case in which one Letsweletse Motshidiemang is challenging the courts to decriminalize same-sex relations between two consenting adults and imposes a maximum sentence not exceeding seven years imprisonment.
LEGABIBO has been admitted as friend of the court in the matter. The case is challenging the constitutionality of sections 164 and 167 of the Botswana Penal code and its social impact on the LGBT community and how it increases their chances of discrimination and how it Lekgowe, representing the applicant argued that the matter they brought before the court was a matter of national interest and cannot be postponed because it has been going on for too long. This came about, when the Prosecutor, Advocate Sidney Pilane was nowhere to be found as he had attended another court case. The defendants could not take this and the panel of three judges were in agreement.
“Senior Counsel Pilane knew about this case, he should have organised his diary. We all have diaries here, we will not allow for this matter to be postponed. It has been before the courts since November. It will go on whether Senior is here or not,” Judge Tafa said. In the heads of arguments, Lekgowe argued that it is time same sex relations are decriminalized. “Homosexuality must be accepted, when the laws on same sex where drafted the society was not yet ready to accept same sex relations.
That is no longer the case, the society has softened up. We even have a song by Sereetsi and Natives and we dance to it and this is proof that society is now tolerant. We ask that the laws be changed as society has changed,” argued Lekgowe. Lekgowe contended that discrimination and assaults on the LGBT community exists because the law itself discriminates them by criminalizing same-sex relations. “How can Batswana be tolerant if the law itself is not tolerant?
It is degrading for parliament and government to criminalize this. We are not looking for the public to like homosexuals, we want them to tolerate it, and tolerance means you can disagree. That is even on one of our pillars in 2036, a compassionate and caring and tolerant nation,’’ he said. “Court of Appeal doesn’t dwell on interpreting the constitution all it does is pose the public perception that is not how you interpret the constitution. The public should not decide what section 164 and 167 means.”
Admitted as friends of the court LEGABIBO, represented by Tshiamo Rantao disputed that they have submitted enough evidence before court on the practical effect and social impact that sections 164 and 167 of the Botswana Penal code have on daily lives and experiences of the LGBT persons particularly. The submissions illustrated how criminalization of same sex sexual conduct limits LGBT person’s ability to access basic social services, increases their chances to discrimination, and infringes on their basic human dignity.
“The question is not what two consenting men were doing in their bedroom, what was the law doing in their bedroom? LGBT experience stigma and discrimination in their daily lives. Are sections 164 and 167 consistent to the constitution? No, they are not because they attract to both heterosexuals and homosexuals. Evidence we placed is very clear, it is not in dispute that the applicant is a gay man. Should he then go to jail for his feelings? Why two homosexuals can’t be allowed to express themselves. How are they violating anyone’s rights?” submitted Rantao.
Arriving four hour late into the proceedings, Advocate Sidney Pilane argued that the case set before High Court was not about homosexuals, stating that it is also not about the penal code but about morals. Attendants in the court case could not help but murmur to this statement in disapproval causing the judge to call the court to order.
“This case is about us as a society and what values we hold, the LGBT have rights the same way we do. That is why some of them are here and not in prison, they grew up with yes as brothers and sisters. We just have to stick with our values and morals,” Advocate Pilane. Advocate Pilane further argued in his debate that: “We have to endure discomfort as persons, I have people who have my head drawn in a P10 note. Is the law going to protect everybody? How far are we willing to go at protecting everybody, who do we not protect and why do we not? We are just looking to blame the law.”
Pilane gave an example of prisoners, “People in prison are not entitled to have sex, should they complain? Should a person who is not allowed to have sex in public, in prison and in boarding schools complain? The prisoners are not having sex in jail, are we saying they should complain too? Does that subject them to human degrading?”
“LEGABIBO should not burden the court but lobby parliament to change the law,” Pilane. “But do you accept that they have the right to approach the court?” asked Judge Tafa. “ Mr Pilane we are talking about human beings, our sons and daughters, fathers and mothers, are you saying they shouldn’t have sex?” another question posed by Judge Dube. ‘Heterosexuals are spoilt for choice, homosexuals don’t have a choice, and the Attorney General has told us, what other choices do they have?” Judge Tafa to Pilane.
Facebook was set ablaze by the case, newsfeed thronged with comments and posts. One of the comments by human rights activists lawyer Uyapo Ndadi read. “The argument by the Botswana Government on homosexuality are embarrassing. I am afraid that the world may think that indeed we are regressing on our democracy and human rights standing.”
Another post read, “To some, it is okay to speak for women’s rights when you are not, for children’s rights when you are not, for HIV infected person’s rights when you are not, for survivors of domestic violence when you are not abused, but if you speak LGBT rights when you are not, it becomes questionable.” The judgement on the case will be delivered on the 11th June 2019.
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.
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.
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.”