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BOPEU wins stay of execution appeal case

Botswana Public Employees Union (BOPEU) has won an appeal case at the superior court in which they wanted the Court of Appeal to suspend the implementation of the judgement of High Court by Justice Tshepo Motswagole.

Motswagole had basically ruled that the Public Service Bargaining Council (PSBC) has the sole powers to negotiate and effects salary increments on behalf of all public servants as opposed to government’s unilateralism on the matter. This was after government increased salaries of public servants unilaterally on 30 March 2016 by 3% as well as on April 2017 by 4% outside the auspices of the Bargaining Council.  

When making judgement, this week the Judge presiding ‘alone’ on the CoA bench Justice Monametsi Gaongalelwe ordered that the application for staying the order granted by the High Court on 4th April 2017 “succeeds.” “The operation of the said order hereby stayed pending appeal,” Monametsi added.

According to the CoA Judge when justifying his conclusion he pointed out that “in the circumstances of this case it is my considered view that the prejudice to be suffered by the respondents (BOFEPUSU) if stay is granted is far outweighed by the prejudice and inconvenience to be suffered by applicants (BOPEU and government) if execution of the order of 4th April 2017 is carried out pending appeal.”

He further ruled that the Rule Nisi granted on 6th April 2017 falls away on the basis that the principal order being stayed there would be nothing to operate immediately. In addition, the Judge ordered that in regard to the Rule 11 application the Registrar is hereby directed to list the appeal for hearing during the October 2017 session.

Above all, he later ordered BOFEPUSU to pay the costs. “The first, second, third, fourth and fifth (BOFEPUSU) shall bear the costs of the application jointly and severally one paying the others to be absolved. Such costs to include costs of Counsel.” In justifying the ruling, Monametsi said Dutch Leburu who stood in for BOPEU, has submitted that the matter concerns about 29 000 employees of BOPEU who have enjoyed the increment for about 12 months which is now suddenly cut off.

“Applicants contend that they have been receiving the 3% salary increment since 2016. They assert that they have enjoyed the benefit for a period of about 12 months or so. Their assertion is that on that basis they have made some financial commitments on account of the increment,” the Judge highlighted. As a result of this, he pointed out in the judgement that they say some of them have obtained loans based on the increased salaries and that with the deduction they will not manage to service such loans.

He continued: “it is further contended that some employees qualified for medical aid schemes because of the increase and will find it hard to cope. They have generally been accustomed to living with enhanced salaries and are saying the sudden decrease will cause irreparable hardships.” BOPEU and government assert further that, Monametsi said that, if the stay of execution is ordered BOFEPUSU would not suffer any prejudice at all as they would go on with their regular salaries.  

In fact he said, BOFEPUSU’s Counsel has quite frankly conceded that if stay was to be ordered the union Federation would suffer no prejudice. He however, he added, that they would suffer prejudice in the sense that they are law abiding employees and cannot manage to live with a blatant violation of the constitution of the Bargaining Council. Why Gaongalelwe didn’t recuse himself in the case

In the same judgement, Justice Monametsi explained why he could not recuse himself in the first instance as requested by Advocate Duma Boko who was arguing on behalf of BOFEPUSU. Boko said Justice Gaongalelwe was likely to be biased as he too was directly affected by High Court Judge Justice Abednigo Tafa who ruled that the appointment of Justices cited as respondents in the case was unconstitutional.

“The factors canvassed constitute reasons for the dismissal of the recusal application. The bottom line is that the grounds advanced for the complaint were all flimsy and unfounded,” Gaongalelwe said when he also dismissed the recusal application by Boko.   
Another Appeal on the scope of Bargaining Council in October

In light of the appeal in principle of Motswagole judgement, Gaongalelwe said the Registraar is directed to list the appeal for hearing during the October 2017 session. Additionally, in his stay of execution judgement, the CoA Judge stated that in terms of prospects of success on appeal, the standards is not to be put higher than showing that in the circumstances of a particular case there would be a reasonably arguable appeal. “Applicants (BOPEU and government) have in their papers made reference to a number of pieces of legislation which would have to be interpreted and unravelled at the appeal stage.”

At this stage, he pointed out that is sufficient for the purpose of demonstrating that the appeal would be a reasonably arguable one. He added: “my view is that for the purposes of a proper determination at this stage the court does not have to delve any further into the issue since such will be the task of the court that will hear the appeal.” The triumph by BOPEU and government on the stay of execution case by Justice Gaongalelwe may be viewed by certain interested parties as an endorsement of the unilateral salary increment by government.

This means that following Motswagole judgement, 3% and 4% shall remain credited unlawfully to a section of the public service including non BOFEPUSU and non-unionised members. However the case appealing Motswagole judgement in terms of “scope of Bargaining Council” will be heared by a full bench of the CoA bench later in October as BOPEU has also appealed the matter. Meanwhile In the matter the appellants of stay of execution; government was represented by Advocate Timothy Bruiners and Joseph Balosang Akoonyatse while Dutch Leburu and Martin Dingake represented BOPEU. Advocated Duma Boko and Mpho Garebatho stood in defense of BOFEPUSU.

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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

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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