It has since emerged that a thick dossier, originally stowed away across the Mediterranean in London archives might have strongly shaped views of judges presiding over a case in which the Law Society of Botswana (LSB) and attorney Omphemetse Motumise were suing President Ian Khama over exercising discretion in appointment of judges of the High Court.
The dossier allegedly contains arguments uttered by then Prime Minister Seretse Khama and his deputy; Ketumile Masire in February 1966 over what form the country’s constitutional template was to take. In the molding process of the Republic, Khama and Masire allegedly stated that as heads of the executive they intended to stay out of the realm of appointment of judges and leave that privilege to the Judicial Service Commission.
The Botswana delegation at the constitutional talks at some point included political figures such as Phillip Matante who eventually pulled out. A member of the British Crown’s delegation apparently agreed to Khama and Masire’s words, responding in essence that in that case, the executive can exercise only a formal role of appointment while the JSC can act a more practical role. The JSC was at the time comprised of among others the Attorney General and Chief Justice.
LSB legal minds stated this week that they got wind of the London minutes from a local newspaper article. It was unavailable at the Gaborone National Archives. It was then that they flew to London to retrieve the dossier which helped solidify their case even though it was already late in the proceedings. Tshiamo Rantao of Rantao Kewagamang Attorneys stated that “we looked for them and we couldn’t find them. In 2015 after the filing of the application, we found them in the National Library in London.”
After securing the dossier for the landmark case, they stated that they had to make an application for the newfound evidence to be included. LSB Vice Chairman Onalethata Kambai also stated that it was pure luck for them as lawyers representing the Attorney General chose to not oppose the application even though it was prejudicial to their case. An attorney who was arguing the LSB case before court, Gosego Garebamono noted that the LSB had now been redeemed after it was bashed and trolled following the High Court defeat.
He also noted that the trolling however worked to solidify their resolve and fuel their energies to fight the case further. Moreover, Garebamono stated that their view has always been that Section 96(2) of the constitution does not give the President discretion in appointment of judges describing it as so easy that “even a Form 5 student can discern its meaning.”
Garebamono stated that the ruling is going to be important for Botswana and the region as it has set a notable precedent. He also said that he will not be surprised if a similar case explodes in South Africa due to similarities in the country’s judicial appointments. “It will have and it does have international significance,” he stated. He further noted that the new ruling will be important for the appointments of all judicial officers such as Magistrates, Court of Appeal justices and registrars of courts as the LSB has previously received complaints from them about non-appointments.
He further stated that in all fairness, lawyers representing the AG were not disputing that the president has no discretion to decline appointment asserting that “it meant that Khama could keep rejecting appointments and this allowed him to get though the backdoor what he could not get through the front door which could not have been what the constitutional framers had in mind.” In the judgements Justices Lord Abernarthy and Hamilton determined that President Khama does not have the discretion to refuse appointment, making a finding that he acts only in a formal position only.
Justice Isaac Lesetedi also determined the steps that obtain in the appointment of High Court judges. He stated that that at first, as head of the Judiciary, the Chief Justice determines the judicial needs thereof and then informs the JSC of a vacancy. The JSC will then place an advert for aspirants to apply. They will further consider the applications and hold interviews in camera and lastly the selection of names and handing them to the president.
Lesetedi then stated that the AG, as the official go-between between government and the JSC, allows Khama to raise issues such as those of national concern during the appointment process and not at the end. Lesetedi however stated that Khama may have the right to refuse appointments after the process is completed if he advances reasons. He however stated that the action is liable to be attacked in court or reviewed.
Garebamono further stated that what was curios with the case is that when Khama was given the chance to provide the record of the case, only a one paged letter was provided which only stated that there was no record. He further stated that Khama did not give reasons specific to Motumise for declining his appointment only stating that he considers socio-political and national security issues in appointing. This he said placed all sorts of conjecture on Motumise’s shoulders which he described as “particularly unfair”.
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.”