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4 Court of Appeal Judges “separately” rule against Khama

Omphemetse Motumise who was the first in list recommended by the Judicial Service Commission (JSC) is awaiting a letter from the JSC or appointing authority inviting him to commence work as High Court Judge in Botswana.


This comes following a matter in which Law Society of Botswana (LSB) was challenging the refusal by President Lt. Gen. Seretse Khama Ian Khama to appoint Motumise as a Judge – as recommended by the empowered JSC. It is understood that during the JSC shortlisted candidates interviewed by the latter, Motumise had the highest score followed by Justice Tapiwa Marumo of the Industrial Court, Sarkodie Mensah who has previously acted as High Court Judge was the third, and the now Acting Judge Justice Zein Kebonang who is a twin brother to one of Khama’s cabinet Ministers Sadique – came last.


However after rejecting Motumise, Khama moved swiftly to appoint Kebonang as Acting High Court Judge – the position he still holds to date. The position fell vacant following the retirement and subsequently departure of Judge David Newman who has since been awarded with the ambassadorial post.


In appointing Motumise, the JSC were said to be acting in terms of section 96.2 of the Botswana constitution which states that “The other Judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.”
The JSC is composed of the Chief Justice Maruping Dibotelo who is also Chairman; the President of the Court of Appeal Justice Ian Stuart Kirby; the Attorney-General Athaliah Molokomme (who has since retired); the Chairman of the Public Service Commission; and a member of the Law Society nominated by the Law Society; as well as a person of integrity and experience not being a legal practitioner appointed by President Khama.


According to the Court of Appeal Judges; Justices Isaac Lesetedi, Monametsi Gaongalelwe, Lord Hamilton, Jacobus Brand, Alistair Abernethy in a judgement read by Lesetedi this week in Gaborone; he said as a conclusion in the main judgement that in the absence of an explanation by the President (in rejecting Motumise) therefore his decision stands to be reviewed and set aside.


“For that reason therefore this ground of appeal is upheld and the President’s refusal to act on the recommendation of the JSC for the appointment of 2nd appellant (Motumise) as a Judge of the High Court is set aside,” all the Judges stated in the conclusion of the final judgement, although they had 4 separate judgement for the first time in the history of Botswana.


While they were all in agreement, Justice Gaongalelwe differed with them only on the proper interpretation of phrase in section 96.2 that “shall be appointed by the President acting in accordance with the advice of the JSC.” He said it depends in the regime of a particular country and the context in light of other provisions of the constitution. “I am in agreement with the conclusion of the court a quo that in this matter the phrase simply means that the president is not to appoint a person who has not been recommended by the JSC,” Gaongalelwe stated.


JSC, Lesetedi contended that for the transparency purposes, it can decide on whether they want to make interviews for candidates vying for High Court Judgeship in the open and that the court has no right in the absence of a law empowering it to do so. He however highlighted that this may continue to be a debate going forward. Meanwhile the appellants having succeeded partially in the reliefs they sought, each party was ordered to bear its own cost in the appeal.


LSB and Motumise were cited as 1st and 2nd appellants in the matter while President Khama, JSC and AG were cited in papers as 1st, 2nd and 3rd respectively. Appellants were represented by Advocate Alec Freund, Advocate Hephzibah Rajah, Osego Garebamono, Tshiamo Rantao and Tefo Gaongalelwe. On the other side respondents were represented by Advocate Anwar Albertus, Advocate Grant Quixley and Yarona Sharp.


On his part, Rantao of Rantao Kewagamang Attorneys’ who was representing LSB and Motumise (appellants) who are triumphant in their main contention, could not hide his excitement outside court shortly after the judgement. He stated with poise that the CoA decision in his view is “a resounding victory – for the rule of law.” “Its resounding victory for us because the CoA on the main issue which we went to court in the first instances all is in our favour particularly on the interpretation of section 96.2 of the Botswana constitution, all but not entirely” he said.


Rantao however cautioned that: but the results are that if the president is concerned about a person who is recommended by the JSC, for example if he is a national security threat, he must raise his concerns with the JSC through the Attorney General (AG). “The AG as you would know, represent the Executive in particular the president in this case and the JSC. So what it means is that the president cannot now, without giving any reason refuse to accept the recommendation of the JSC.”


He added that in the history of the Court of Appeal, which is the highest court in the land; we had 4 judges writing different opinions arising in many respects in the same results. “But, not just agreeing, not just concurring, 5 out of 5, but differing on how to arrive at the judgement that’s very good that’s what we expect from our CoA and I think that, in that regard, they acquitted themselves very well.” According to the attorney, “so, Mr Motumise is now effectively waiting for a letter from the JSC or any other relevant authority advising him when to take a seat as the Judge of the High Court.”

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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
morupisi

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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