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.
Despite the President Dr Mokgweetsi Masisi and his Namibian counterpart, Hage Geingob giving an impression that the borderline security disputes are a thing of the past and that diplomatic ties remain tight, fresh developments from Namibia suggest otherwise, following Geingod’s close confidante’s attack on Botswana and its army.
Giving a Zambezi region state of the affairs last week, a Geingob-appointed governor of Zambezi region, Colonel Lawrence Ampofu, a retired Colonel in the Namibian Defence Force, former plan combatant during the liberation struggle of Namibia, in a written speech, charged at the BDF and condemned their killings of the Namibians as unacceptable.
“The security situation within our borders remains calm. The incidence of the Botswana Defence Force shootings and wanton killings on the Nchindo Brothers on 05 November 2020 and other 37 Namibian lives lost since independence remain a serious challenge with our neighbor, Botswana.
Our residents living along the Chobe, Linyanti and Kwandu rivers are living under constant threats, harassment, fear, intimidation and killings and such activities are condemned and not acceptable,” he said under the safety and security title.
The attack suggests that Namibia has not bought Botswana’s story. Ampofu was part of the entourage that accompanied Geingob to the three Nchindo brothers and their cousin who were gunned down by the BDF, and is reported to be privy to the details of the unpublished Botswana-Namibia joint investigations report about the killings as a governor or political head of the region which has eight electoral constituencies.
The report contains the sensitive details of how the three Namibians referred as poachers by the BDF – and Fisherman by the Namibian government were gunned down on 5 November last year along the Chobe River. They were Tommy (48), Martin (40) and Wamunyima Nchindo (36), and their cousin Sinvula Muyeme (44).
His views are not really in contrast to his President’s views who also described the BDF as trigger happy in a scripted report to his cabinet.
The Zambezi region is located in the extreme north east part of Namibia and covers a total of 14,667.6 square kilometres. “We share borders with Angola, Zambia to the north, Zimbabwe to the east and Botswana to the South,” he said.
Sampofu was first appointed governor of the former Caprive Region in 2010 by the former Namibian president, Hifikepunye Pohamba and was reappointed as Zambezi governor by President Dr.Hage Geingob in 2015, a term running to 2025.
37 Namibia residents killed by Botswana army so far
Sampofu is a man who continues to insist that Botswana has killed 37 residents of his region. A video posted by the Namibian Broadcasting Corporation (NBC) shows him alleging that at least 37 Namibians were killed by the BDF, after he met with the community at Impalila.
“It is true, the BDF started long ago. As we speak 37 lives have been lost here in Impalila along the Chobe river going to Linyanti and Kwado rivers up to Lizauli. All those families lost their loved ones,” Ampofu said in the video posted by NBC.
It is not known how the BDF, which has maintained their position that the Namibians were engaging in illegal activities of poaching, treats the constant attacks by the Namibian authorities, but they have repeatedly vowed to continue protecting the country’s sovereignty and natural resources.
Botswana’s premier brewer and leading distributor of beer, Kgalagadi Breweries Limited (KBL), this month dragged the government of Botswana to court after President Mokgweetsi Masisi imposed an alcohol ban with immediate effect. KBL labelled the decision as unjustifiable, irrational and that it overrides the rights that are enshrined in the constitution.
This week, Masisi through attorneys representing the government disparaged the case in his written affidavit of KBL’s application, referring to it as frivolous and that it ought to be dismissed with costs on a punitive scale.
In his court papers, Masisi reminded KBL that Botswana is a Republic whose laws find validity from the constitution, and in terms of Section 17 of the constitution the President is empowered to declare a State of Emergency and that it is a common cause that Botswana is under such state.
“It is common course that there is in existence emergency powers (Covid-19) Regulations 2020 as amended from time to time which is solely designed to regulate the Covid-19 pandemic,” he said.
Masisi pointed out that he denies that the application before Court is proper such as to challenge the lawfulness and validity of a regulation made and a notice published in the exercise of a legislative function in accordance with the Emergency Powers Act which empowers the President to make regulations as appear to him to be necessary and expedient for securing public safety.
Furthermore, the President revealed that the decision to ban alcohol sales was not arrived at willy-nilly, but rather that there had been careful considerations that the risks posed by Covid-19 had increased and therefore it was expedient and necessary to suspend all liquor licenses.
Moreover, Masisi denied that the decision to reinstate the ban should be made by the Director of Health Services as indicated by KBL in their nature of the application, “the Director is to cause the notice to be published in the Gazette after consultation with the President.”
Masisi indicated that the role of the Director of Health Services is to publish a regulation made by the President.
He further, reminded KBL that the power to make regulations in a State of Public Emergency in accordance with the EPA lies with the President, “such power includes the amendment of any enactment, suspending the operation of any enactment or modification of an enactment.”
According to Masisi, his decision to ban alcohol sales was based on evidence provided by the Director of Health Services who indicated to him that there was a sudden spike in the transmission of the Covid-19 virus following the reinstatement of liquor licenses.
Another piece of advice tendered by the Director of Health to Masisi was that bars and other liquor outlets were some of the major hotspots in the sense of such being high-risk areas at which the virus spread rapidly.
“Alcohol was one of the major causes of non-compliance with the health protocols that were put in place to control the spread of the Covid-19 virus. Further, there was an indication that more arrests were made on people failing to adhere to Covid-19 protocols more particularly at places where there were gatherings,” he contended.
He pointed out that therefore, it was expedient and or necessary to preserve lives and to reduce the risks of transmissions of the virus to reinstate the suspension of liquor licenses.
Moreover, the President says that it must be noted that he avers that the Director of Health Services is a credible source on matters of public health of which he also accordingly gave due weight to the Director’s advice on deciding to reinstate the ban through the impugned notice.
“I am aware and was always aware at the time of promulgating the regulation complained of that it shall negatively affect some sectors of the economy. However, after due consideration and receipt of advice, I decided to give priority to the safety and health of the nation,” Masisi said.
He presaged KBL that it would not be prudent and in the best interest of the nation to ignore a health emergency such as Covid-19 and gave preference to trading and making of profits by the applicant. “The results would only be catastrophic to the extent that when we emerge from the scourge we would be left with a depleted and ailing nation from Covid-19 and its side effects.”
Furthermore, his written affidavit further pointed out that the decision to reinstate the ban on alcohol was taken notwithstanding understanding and appreciation of the economic hardships that would befall the country.
However, he said he deliberately made the decision based on the evidence provided to him by the Director of Health, whose evidence he believes to be credible to give public/safety and health priority over economic considerations in some sectors.
In making the decision, Masisi states that he was and considered different options including allowing for sale of alcohol consumption off premises, however the evidence he had been provided with suggested that such other alternatives would not achieve the overall objective of securing public safety and health by reducing the risk of the spread of the virus.
“By the time I imposed the ban, alcohol was already being sold for consumption off-premises. This did not work. The information provided to me by the Director and the Presidential Task-Force team demonstrated that consumers purchased alcohol and then loitered and consumed it within the peripheries of bars and other liquor outlets,” he said.
Attached to the affidavit as emphasis, were photographs and videos of Gaborone West, Phase 4 in mid-June 2021, which he explains circulated on social media and was brought to his attention.
“I need not say much about the photos as they depict a crowd exceeding 50 gathered at the parking area of a bar. There is little or no regard to Covid-19 protocols. It was clear to me and my advisors, including the Director of Health Services and members of the Presidential Task-Force team that the total ban of alcohol was necessary to manage the risk of increase in infections, to understand what seems to have led to an increase in the risk of infection when alcohol is present I was advised by the Presidential Task-Force team that scientifically there has been evidence that alcohol narrows physical distance,” he argued.
Masisi says that allegations made by KBL are serious allegations of infringement of fundamental rights yet they fail to state how imposition and reinstatement of the suspension of liquor licenses out of necessity and expediency of the health of the nation infringes on the rights as alleged.
In an embarrassing turn of events that depicts disintegration in government communication on the fight against COVID-19, President Mokgweetsi Masisi and Assistant Minister of Health & Wellness, Sethomo Lelatisitswe gave two conflicting statements on the same matter, same day, just minutes apart.
The Commander-in-Chef told health practitioners and residents in Ramotswa that the COVAX facility has scammed African countries after billions were paid in a crowd funding effort to procure COVID-19 vaccines in bulk.
“We have pumped money as developing countries of the African continent into the COVAX Facility but the returns were not satisfactory, they cheated us,” the President said in Ramotswa.
According to President Masisi, the COVAX facility Vaccine only came in bits and pieces, frustrating the continent ‘s head immunity targets amid rapidly spreading Delta Variant which is currently reversing all progress made by Africa in containing the contagious virus.
“What we are getting is very small portions of the vaccine, they keep telling us that there is shortage of supply, this is not fair, but we have paid in advance, however what can we do, we have no choice but to spend more money and look for other avenues of securing other available vaccines,” he said.
Meanwhile in Gaborone, Assistant Minister of Health and Wellness told Parliament that vaccine from COVAX facility is anchoring Botswana’s vaccination program.
“I am not aware of such information that COVAX facility is not delivering as expected, we are actually bolstered by COVAX facility in this country,” he said responding to a question from Mahalapye West Member of Parliament David Tshere who is also Chairman of Parliament Committee On Health and HIV/AIDS.
“We have received doses as ordered from the COVAX facility, and we are still receiving more, I have not seen that information which is purported to have been revealed by the President, unless its new information, we as the Ministry we are not aware of any frustrations by the COVAX facility,” he said.
COVAX is co-led by the Coalition for Epidemic Preparedness Innovations (CEPI), Gavi and the World Health Organization (WHO), alongside key delivery partner UNICEF.
Its aim is to accelerate the development and manufacture of COVID-19 vaccines, and to guarantee fair and equitable access for every country in the world.
The facility is a global coalition that works to ensure fair and equitable access of COVID-19 vaccines around the world. So far, 190 countries have joined the COVAX initiative, including all 22 countries in the Eastern Mediterranean Region.
The COVAX Facility aims to have 2 billion doses of COVID-19 vaccines available for distribution across the globe by the end of 2021, targeting those most at risk (e.g. frontline health workers) and most vulnerable severe diseases and death (e.g. elderly and people with co-morbidities).
On other vaccination issues President Masisi revealed, still in Greater Gaborone vaccination centre visits, that Botswana has placed orders with Pfizer, a United States vaccine producer noting that they have promised to deliver next year.
Meanwhile, government kick-started phase two of the Covid-19 vaccination program this week, opening up for ages between 30 and 54.
President Masisi revealed that this was done because some elderly were reluctant to be inculcated.
“We can’t take forever trying to convince people to take vaccine, we moved to the next age segments because we cannot afford to have vaccines-which are already in shortage supply to just lie there,” he said.
On Friday, Ministry of Health revealed that it was receiving large numbers of people below the age of 55 lining up to be vaccinated.
In a statement the Ministry of Health said it, “acknowledges the huge turnout that marked the commencement of the Phase two COVID-19 vaccination program”.
Given this high turnout, especially in the Greater Gaborone region, the ministry announced an extension of operation hours in order to serve the huge crowds that had come for vaccination.
Of the nearly 85 000 doses that were being doled across the country as first doses, the majority of the Greater Gaborone vaccination sites were already getting depleted by 1800hrs on 22 July 2021.
As a result of this development, the ministry took a decision to discontinue the extended hours of operation announced yesterday for vaccination sites in Gaborone.
This means that vaccination sites in Gaborone and elsewhere in the country which still have some vaccines, will offer them in the normal working hours and days of the week.
The Ministry says it appreciates the great desire to be vaccinated shown by thousands of citizens and residents of this country and wishes to assure them that it will continue to expedite their vaccination every time vaccines become available. As has been communicated in various fora, more vaccines are expected in August 2021.
As at July 2021, Botswana has so far received 62, 400 doses of AstraZeneca/COVISHIELD bought through the Covax facility, 30,000 doses of AstraZeneca vaccine donated by the Republic of India, 19, 890 doses of the Pfizer vaccine bought through the COVAX facility, 200, 000 doses of the Sinovac vaccine, donated by the Peoples Republic of China and another 200, 000 doses of the Sinovac vaccine bought through bilateral negotiations with Sinovac company in China.
“We encourage Batswana to remain hopeful that although it’s taking longer than anticipated, enough COVID-19 vaccines will eventually arrive in our country. We urge them to always strictly abide by all COVID-19 protocols so that they protect themselves and others from this deadly virus,” the ministry said.