Opposition Botswana Congress Party (BCP) has filed a notice calling for the court to suspend the current “unlawful” parliament on urgency basis.
The party through its dual legislators; Selibe Phikwe West law maker Dithapelo Keorapetse as well as Ramotswa Member of Parliament Samuel Rantuana says the parliament is unconstitutional and therefore, in particular, the current President Mokgweetsi Masisi is not a substantive president.
Through its esteemed attorney Martin Dingake of Dingake Law Partners, they state that the Speaker of the National Assembly Gladys Kokorwe has therefore, against the constitution, failed to convene parliament for the election of the president seven (7) days after Lt. Gen. Dr. Seretse Khama Ian Khama resigned. Upon Khama’s resignation in March 31, Masisi then as per automatic succession, assumed the presidency of the country on April 1, 2018.
“The National Assembly, as represented by Kokorwe, has declined, failed and refused to exercise its singular powers (for parliament to dully elect the president) under the relevant provisions of the constitution,” Dingake on behalf of the duo, and the party, stated in the filing notice before High Court, a copy of which has been passed to Weekend Post.
The BCP says “the Speaker of Parliament and Attorney General have failed, neglected and/or refused to meet within the set (seven) 7 days and to respond to the correspondence (from the party).” The party contend that the application before court therefore is to address the alleged constitutional violation by the Speaker of Parliament and seek the Court’s intervention in; directing that the ordinary rules relating to form, time and service be dispensed with and that this matter be heard as urgent.
They also want court to direct that “pending the final determination of the relief sought in: Parliament be suspended.” Dingake said in the filing notice that the court should declare that following the assumption of Office of President by Masisi under Section 35 (1) of the Constitution the Speaker of the National Assembly is constitutionally required to convene the National Assembly for purposes of Sections 35 (4) and (5) of the Constitution of Botswana.
“The court should also declare that the National Assembly is constitutionally prohibited from sitting and or conducting business for any purposes other than that of Sections 35 (4) and (5) of the Constitution of Botswana,” he stated. On April 1st, 2018, Dingake on behalf of BCP once again by operation of Section 35 (1) of the Constitution, said Masisi assumed Office of President of the Republic of Botswana but he did not assume the functions and duties of that office.
“I reiterate that since the day of the inauguration of Masisi, the National Assembly has convened on every working day since April 4th, 2018. On the April 4th, 2018, the National Assembly convened to endorse and swear in a Vice President Slumber Tsogwane that was nominated by Masisi. It is clear that the National Assembly is not prorogued or dissolved at this stage and should adhere to the Constitution obligation to convene for purposes to elect a President.”
According to the party, currently in terms of the law, there is no president in Botswana. The BCP Secretary General Akanyang Magama stated in the party filing affidavit before the court that: “I am advised by my attorneys of record which advice I verily believe to be true and correct that the office of the President is currently vacant due to the failure to implement the constitutional requirements of Section 35 of the constitution.”
According to the BCP as represented by law expert Dingake; in its passive non-compliance with the provisions of Section 35 of the constitution, as read in its entirety, the Speaker of Parliament undermines the foundational value of supremacy of the constitution and the rule of law.
“In as far as the Speaker Kokorwe has not complied with the mandatory provisions of Section 35 (4) of the Constitution; the continued exercise of presidential functions and duties by President Masisi is not sanctioned by a valid parliamentary process, and is ultra vires the constitution,” the party emphasised through their highly valued attorney.
The attorney points out in the court papers that: “it is important to note that per Section 57 of the Constitution, “parliament” comprises of the National Assembly and the President. For there to be a lawful parliament, the two (National Assembly and the President) need to be enjoined by the endorsement process, in this instance, as prescribed under section 35 of the constitution.”
They continued: the failure by Kokorwe to conduct an election of the President (dully) in terms of Section 35 (4) of the Constitution renders parliament, as currently is construed as it is unlawful. According to Magama, the BCP Secretary General, by way of a letter, dated April 10th, 2018; he instructed his attorneys to remind the Speaker of the National Assembly’s constitutional obligation and called upon her to convene the National Assembly to elect a person to the office of President, the warning which Kokorwe failed to take heed of.
In the letter the BCP warned Kokorwe that “our clients opine that there are four (4) types of Presidents envisaged under the Constitution, and these are; a Section 32 President; a Section 35 (1) President; a Section 35 (2) President; and a Section 35 (4) President. As provided for by the Constitution, Dingake observes that only Section 32 and Section 35 (4) Presidents are substantive holders of office with the power to make appointments (revoke the appointment of Vice-President) or dissolve Parliament.
“His Excellency President Mokgweetsi EK Masisi is neither a Section 32 nor Section 35 (2) President. Further, he did not ascend to the office of President following an election by Parliament. And to this extent, does not qualify as one (President) under Section 35 (4) as read with Section 35 (5) of the Constitution,” the lawyer stressed in the warning letter to Kokorwe.
The revered attorney added that President Masisi therefore is remains and has always been a Section 35 (1) President; and must be treated as such. The Constitution, he said, in terms of Section 35 (3) provides that a Section 35 (1) President “shall not exercise the powers of the President to revoke the appointment of Vice-President or dissolve Parliament.”
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.”