Kagisano Tamaocha, a lawyer representing Kamal Jacobs of Lobatse constituency in a case which he is challenging legitimacy of President Mokweetsi Masisi as the Botswana Democratic Party (BDP), turned the court into a circus during festive season, earning the wrath of Judge Michael Mothobi in the process.
The matter came before Justice Mothobi during the festive season as an urgent application and was heard on the 27th and 28th of December 2018. The matter was supposed to be argued on four points: admission of Attorney General as a friend of the court; urgency; legal immunity and misjoinder. The court started with arguments on admission of AG of which AG was granted application to be cited as a friend of the court. After that, it was the urgency argument, of which the ruling will be delivered next week Monday.
Should the court rule that the matter is urgent, the parties will then proceed to argue on the immunity leg followed by misjoinder, and if not, the case will have to follow the normal route and wait for the date in which the court will decide to allocate a date. Below is the interchange between lawyers of the three parties and the judge as they had heated arguments.
Kagisano Tamocha: This matter is urgent my Lord. The degree of urgency varies from case to case. By virtue of Masisi not being president of the BDP, he had no powers to appoint Appeals Board Committee which later on dismissed my client’s application to have a re-run in Lobatse. The board which dismissed my client was unconstitutional because Masisi is not the legitimate President of the BDP.
We are saying this because even before my client consulted me, there was an article in Mmegi newspaper where the former President Ian Khama claimed he is still the president of the BDP Judge: How do you want me to treat that information when it was written by a third party? Did you even have Khama endorsing an affidavit confirming the said article?
Tamocha: No, we did not serve him. Judge: So what do you want the court to do with this piece of information? If you did not serve Khama and you do not have his affidavit claiming the said position, do not mention anything to me about him. He has never sworn to an affidavit on the said allegation. Tamocha: I find myself in a frying pan. Judge: When did your client first become aware there was some kind of alleged controversy regarding the leadership of BDP? Tamocha: On October 26th. Judge: Will it be wrong for me to assume he got to know after his application to have a re-run was rejected? Tamocha: It was during the consultation when I told him about the article. Judge: Are you appearing as a lawyer or a witness? Tamocha: Both Judge: I have never seen that! A lawyer! And you are even talking about an article by a third party! Tamocha: I have deposed an affidavit that I told my client about the said article. Judge: Do you know that I can have the Law Society investigating you for doing that? How can a lawyer do that? Tamocha: I did not know that it was wrong to do that. I will scrap off the affidavit. Judge: It is impermissible…And if we accept this evidence, it means this whole application was triggered by an article…And tell me what was your client doing from October 26? Tamocha: There are events that transpired from October 26. My client was not happy and he appealed and on November 26, he became aware of his disapproval. So, I want the court to give him benefit of the doubt that despite that information being in the public domain, he might not have seen it. Judge: Okay…except that on the 23, like you said, you disclosed it to him. You must know how to keep confidential information as a lawyer. Tamocha: He got knowledge that his appeal didn’t succeed on October 26, and he launched this application on December 17. And his main prayer is to have a re-run in Lobatse. If the matter is not heard on urgency, the general elections might come before he is heard. Judge: How is a re-run possible when you haven asked me for a review? This argument is misleading and misplaced. It does not understand the power of this court. This is the case which requires case management procedures. There are so many different views of facts here….You see, there is not even an affidavit from anybody that, ‘I am the true leader of BDP,’ or that, ‘I have been appointed by the true leader to be a leader, and not Masisi.’ Tamocha: You are putting me in a frying pan. And I’m trying to run away from that. Judge: (smilling) But I am not chasing after you…I am right here…Should I really continue to go on with this matter? Maybe take a moment with your client. Tamocha: He is not here. Judge: But you have his phone.
Court adjourns for 15 minutes.
Tamocha: I was not able to get hold of him. I will stick with the arguments I have already placed before court…..
Meanwhile, BDP lawyer Busang Manewe implored the court not to treat the matter as urgent, saying Kamal has not behaved like a candidate of urgency. Manewe: If the applicant does not swiftly and immediately approaches the court, they have waved their urgency. This Kamal joined the BDP on November 9, 2016. President Masisi was sworn as President on April 1, 2018, and he simultaneously became president of the BDP. For almost two years, Kamal has been a member of the BDP, and when Masisi was sworn as president, he was still a member.
Masisi continued to carry duties as the BDP president and nobody challenged him; he addressed Central Committee of the BDP, and nobody challenged him. On August 11, 2018, he addressed a meeting of all 38 held constituencies at Palapye, and Kamal was in attendance. The key issue at the meeting was primary elections. Kamal never asked Masisi who he was, and he goes on to take part in primary elections.
Judge: What if he was waiting for the right time? Manewe: Out of disgruntlement of losing primary elections, he appealed, and on November 14 he was advised that his appeal was not successful. And he does nothing, five days later, he sent his lawyer to come collect his letter. This shows there is absolutely no urgency about it.
What was he doing all these six days after his appeal was dismissed? Judge: What if he was still consulting? Manewe: As an applicant he ought to have followed up his lawyer if he knew his matter was an urgent. Judge: How can an applicant bother a lawyer when a lawyer understands cases better? Manewe: He ought to have known that when you approach the court on urgency, you disrupt the internal business of the court. Judge: That is not true. I was no interrupted. I am sitting here as a vacation judge. The court plans for such matters. Manewe: I submit that this applicant does not meet the threshold of urgency set by the courts. His application should be dismissed with costs.
HOW AG WAS ADMITTED AS A FRIEND OF THE COURT
Chief State Counsel Otlaadisa Kwape: I have just received an answering affidavit from the applicant this morning in court and I have sent it to AG (Abraham Keetshabe) to respond since he is the one who deposed the founding affidavit. He has showed interest to respond on two points. Judge: If he is really interested in this case, he ought to be here with us. Kwape: We can adjourn for two hours. Judge: So, AG is in the office and wants us to adjourn? Can’t he send someone or talk to you through technology? We have postponed this matter for so long, it will be prejudicial! When you want to come in as a friend of the court you are now in an area called ‘discretion’ of the judge. And you tell me AG is sitting in the office and wants us to wait, it does not please me at all… He should himself be here next to you bagging you with your coat. I know these things. I have represented AG before. But because you want to do this to help me deal with this matter, I will wait. I am sorry this case is going this way, but it is an important case, and enough information will help me as a judge so that I do not make mistakes. Remember I’m just alone in this case though cases of this nature would attract at least five judges. Go and convey my sentiments to your principal and tell him not to forget he is coming to me as a friend of the court.
Court adjourns Court resumes
Kwape: We just filed a replying affidavit for an application to be granted leave as a friend of court or as a co-respondent in the proceedings. In our arguments we are citing the case of Professor Kenneth Good. Judge: Don’t come to me and cite rules of the Court of Appeal (CoA) unless the case was to decide on a High Court decision. Kwape: it was to decide a decision of the CoA. But, as the highest court, its decision binds any other court. Judge: It is not true. Not everything is binding. Here in the High Court we do not follow decisions of the CoA blindly. It is not just a general blanket statement. That is what we teach first year students wrongly! …It is going to be a long day for you, I see… Kwape: Indeed my Lord…According to Section 52 of the Constitution of Botswana, AG is the Principal advisor to the government. AG has an interest in interpretation of certain provisions of Botswana constitution, which seeks to protect the president of legal proceedings in his private capacity. According to Section 51 Rule 41 (II) anything that HE may do, he cannot be sued for any act that is done privately, but anything done officially he can be sued. And here we cite the Motswaledi case…May his soul rest in peace Judge: This is not a church or something, just go straight to your point. Tell me how that case is relevant. Kwape: The then President, Khama, was spared from being sued for things he has done privately. Judge: But how do you fit in here as AG. Have I said I need a friend to assist? Kwape: The second respondent in this matter is President Masisi, and Rule 41 is entitled to protect the incumbent president from being sued, in particular things he did in his private capacity. Tamocha’s turn to argue Tamocha: AG should not be accepted as a friend of the court in the case. The same case AG cited of Good, the role of a friend of court is to draw the attention of the court to relevant matters of law to which attention would not otherwise be drawn. AG has stated that their interest is in interpretation of the law, and this has already been raised by the first respondent, the BDP. Judge: Isn’t it a different approach? Here they say automatically they are joined. They are now telling the duties of AG to the president, and this is a different thing from what the BDP is arguing. They are here saying they are obliged by legislation and it has not been raised by other respondents. Tamocha: They are not bringing anything new. It depends on the matter Judge: Exactly their point… Tamocha: We submit that their application is improper
At the end, the judge granted AG application to be cited as friend of the court, and the court is yet to give reasons on its decision.
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.”