The National Amalgamated Local Central Government and Parastatal Workers Union (NALCGPWU) otherwise known as Manual Workers Union has again triumphed over President Lt Gen Dr Ian Khama.
Khama and a coterie of other applicants in the matter including Gladys Kokorwe, Athalia Molokomme, Justices of Appeal Elijah Legwaila, Isaac Lesetedi, Stephen Gaongalelwe, John Foxcroft, John Cameron, Arthur Hamilton and Craig Howie had sought a stay of execution relating to the operation of a court order which declared unconstitutional, the appointment of CoA Justices to multiple three year contract extensions.
Justice Abednigo Tafa last week Friday handed down a judgement which struck down as unconstitutional, section 4 of the CoA act which allowed the president to determine the number of Justices of Appeal. It further stated that the appointment of Justices of Appeal on more than a three year contract as has been practice for many years, is unconstitutional. He further struck down the appointment of Justices of Appeal other than the Judge President as unconstitutional. Khama and company had sought a stay of execution as a matter of urgency which Tafa dismissed this Thursday.
In “general observations” he made before issuing his ruling, Tafa stated that the original case whose success resulted in the current incapacitation of the CoA, contrary to media portrayal, it was not a contest between Johnson Motshwarakgole and President Khama. Instead, he said that in his understanding, the original case was between a collective known as the National Amalgamated Local Central Government and Parastatal Workers Union represented by Motshwarakgole acting as its organising secretary and also its applicant and the Office of the President of Botswana and other defendants including the National Assembly and the Attorney General.
Tafa continued to state that the section of the CoA act that his court struck down as unconstitutional was “enacted way back in the year 1980.It was repealing an earlier provision that had been enacted in 1972.” He said. He also noted: “it does not require knowledge of rocket science to understand that the act was more than twenty years before President Khama became the president of this republic.”
He further stated that he can say without fear of being contradicted that the piece of legislation was enacted long before Motshwarakgole was appointed to his position and before Manual Workers Union was reconstituted in its present form. Khama had wanted the order of the High Court halted so that “the CoA could continue in the public interest pending the intended appeal.”
He had also argued that there are currently two constitutional matters that were argued before the full CoA in January whose judgements are reserved. He also said that if the orders are not stayed, the Justices who presided over those cases will not be able to sign and deliver their judgements, to the prejudice of the litigants and the public at large. To convince Tafa, Khama further noted that “already the application session of the CoA which was to begin on the 17th of Friday 2017 has had to be postponed.”
He further argued that relying solely on High Court judges for the appeals of CoA who are ex-officio judges will be extremely disruptive of the normal work of the High Court and will be prejudicial to litigants. Khama noted: “the granting of a stay will ensure the continued smooth operation of the Administration of Justice, which is a national imperative and will cause no prejudice to Manual Workers Union.”
Motshwarakgole however countered that, given the findings made by the court, it would be unlawful, inappropriate and improper for Justices Lesetedi, Gongalelwe, Foxcroft, Cameron and Howie to sit in any future appeals unless and until the judgement has been set aside.
Motshwarakgole also said that Khama and company had exaggerated the prejudice they stood to suffer if a stay was not granted choosing to ignore the prejudice which will result if the justices of the CoA were to continue to act if the court’s judgement had not been delivered. The union boss also described their prospects of success on appeal as so poor that the application for stay should be dismissed.
Motshwarakgole further responded that the incapacitation of several judicial officers at the same time is not new in Botswana referring to an example of suspended four High Court Judges, Mercy Garekwe, Modiri Letsididi, Ranier Busang and Key Dingake. He said that the quartet was at the time of their suspension dealing with over 400 cases each and had part-heard trials as well as having several outstanding judgements. He argued that, this did not stop the wheels of justice from grinding on.
Tafa also noted that according to Manual Workers Union, there is accordingly no reason why the disqualification of a few justices of Appeal, most of which sit only twice a year, should bring the wheels of justice to a screeching halt. He further states: “this is particularly so when one has to regard the fact that all judges of the High Court are also ex-officio judges of the Court of Appeal.”
He further stated that in his judgement the prejudice to be suffered by the litigants in the two cases where judgement is pending before the CoA, is far outweighed by prejudice to be suffered by Manual Workers Union and many more litigants, should the court grant a stay only for the applicants to lose their appeal after more cases have been presided over by the concerned justices of appeal.
Tafa also stated that: “At any rate, one should ask oneself what would happen if one or two justices of the Court of Appeal were to pass on before they delivered judgement. This would certainly cause prejudice to the parties but it would not mean that they would be left without a remedy. A differently constituted court would not find it difficult to hear the cases de-novo (afresh).” He then noted that there is no reason why the CoA cannot enlist the services of some judges of the High Court to assist in carrying out the functions of the court who are ex-officio CoA judges.
In a classic and shocking case of disgrace and dishonour to this country, the law enforcement agencies are currently struggling to cover up a damaging and humiliating scandal of having conspired to forge the signature of a Palapye Chief Magistrate, Rebecca Motsamai in an unlawful acquisition of the much-publicised 2019 warrant of arrest against Isaac Kgosi, the former director of the Directorate of Intelligence Services (DIS).
The cloak-and-dagger arrest was led by the DIS director, Brigadier Peter Magosi supported by the Botswana Police, Botswana Defence Force (BDF), with the Botswana Unified Revenue Services (BURS) which accused Kgosi of tax evasion, in the backseat.
Umbrella for Democratic Change (UDC) constituent members are struggling to reach an agreement over the allocation of wards for the imminent ward by-elections across the country.
Despite a Memorandum of Understanding (MoU) between Umbrella for Democratic Change (UDC), Botswana Patriotic Front (BPF) and Alliance for Progressives (AP) are said to be active, but the nitty-gritties are far from being settled.
The eight bye-elections will be a precursor of a somewhat delayed finalisation of the brittle MoU. The three parties want to draw a plan on how and who will contest in each of the available wards.
This publication has gathered that the negotiations will not be a run off the mill because there is already an impasse between the Botswana Congress Party (BCP) which is a UDC constituent and AP (currently negotiating to join umbrella).
The by-elections joint committee met last week at Cresta President Hotel in a bid to finalise allocation but nothing tangible came out of the gathering, sources say.
The cause of the stalemate according to those close to events, is the Metsimotlhabe Ward which the two parties have set their eyes on.
In 2019, he ward was won by Botswana Democratic Party’s (BDP) Andrew Sebobi who unfortunately died in a tragic accident in February last year.
Sebobi had convincingly won by 1 109 votes in the last elections; and was trailed by Sephuthi Thelo of the UDC trailed him with 631 votes; while Alliance for Progressives’ Innocent Moamogwe got 371 votes.
Thelo is a BCP candidate and as per UDC norm, incumbency prevails meaning that the BCP will contest since they were runners up. On the other hand, AP has also raised its hand for the same.
“AP asked for it on the basis that they have a good candidate but BCP did not agree to that request also arguing they have a better contestant,” one UDC member confided to this publication.
Notwithstanding Metsimotlhabe Ward squabble, it is said the by-election talks are almost a done deal, with Botswana National Front (BNF) tipped to take Boseja South ward in Mochudi East constituency. Botswana Patriotic Front (BPF) will be awarded Tamasane Ward in Lerala/Maunatlala constituency, sources say.
“But the agreement has to be closed by National Executive Committee (NEC),” emphasized the informant.
The NEC is said to have been cautioned not to back the wrong horse but rather rate with reason and facts.
UDC President, Duma Boko has told this publication that, “allocation is complete with two wards already awarded but with only one yet to be finalized,” he could not dwell into much details as to which party got what and the reasons for the delay in finalisation.
Chairperson of the by-elections committee, Dr. Phenyo Butale responded to this publication regarding the matter: “As AP we contested and as you may be aware we signed the MoU with UDC and BPF to collaborate on bye-elections. The opposition candidate for all bye-elections will be agreed by these parties and that process is still ongoing,” he said when asked if AP is interested on the ward and how far with the talks on bye-elections.
Butale, a former Gaborone Central Member of Parliament, who is also AP Secretary General continued to say, “As the chairperson of the bye-elections committee we are still seized with that matter. We should also do some consultations with the local structures. Once the process is complete we will issue a notice for now we cannot talk about the other two while the other is still pending the other one”.
Butale further clarified: “There is no such thing as AP and BCP not in agreement. It is an issue of signatories discussing and determining the opposition candidates across the three wards.”
Apart from the three wards, there are five more council wards that UDC is yet to allocate to cooperating partners.
FROM PALAPYE MEET: BPP CAUTION NEC MEMBERS
With the UDC cheerful from last weekend’s meeting in Palapye, the meeting however was very tense on the side of both BCP and BNF, with only BPP flexing its muscle and even lashing out.
BCP going into the meeting, had promised to ask difficult questions to the UDC NEC.
BCP VP and also acting Secretary General, Dr. Kesitegile Gobotswang, presented their qualms which were addressed by UDC Chairperson Motlatsi Molapisi, informants say.
It is said Molapisi is fed up and concerned by some UDC members especially those in the NEC who ‘wash party’s dirty linen in public’.
Insiders say the veteran politician cautioned the NEC members that they “will not expel any party but individuals who tarnish the image of the UDC.”
It is not the first time BPP play a paternalistic role as it once expressed its discontent with BCP in 2020, saying it should never wash UDC linen in public.
At first it is said, BPP, the oldest political formation in Botswana, claims disappointment on BCP stance that UDC should be democratised especially by sharing their stand with the media. Again, BPP was not happy with BCP leader Dumelang Saleshando’s decision to air his personal views on social media regarding the merger of UDC party.
Botswana Police Service (BPS) Commissioner, Keabetswe Makgophe, has of late been dousing raging fires from various quarters of society following the infiltration of the police fingerprint system by the Directorate on Intelligence and Security (DIS), WeekendPost has learnt.
Fresh information gleaned from a number of impeccable sources, points to a pitiable working relationship between the two state organs. Cause of concern is the DIS continuous big brother role to an extent that it is now interfering with other institutions’ established mandates.
BPS which works closely with the DIS has been left exasperated by the works of the institution formed in 2008. It is said, the DIS through its Information Technology (IT) experts in collusion with some at BPS forensics department managed to infiltrate the Fingerprint system.
The infiltration, according to those in the know, was for the DIS to “teach a lesson” to some who are on their radar. It is said the DIS is playing and fighting dirty to win the fights they have lost before.
By managing to hack the police finger print system, a number of renowned businessmen and other politically exposed persons found their fingers in the system. What surprised the victims is the fact that they have never been charged of any wrongdoing by the police and they were left reeling in shock to learn that their fingers are on the data-base of criminals.
In fact, some of those who their fingerprints were falsely included in the records of those on the wrong side of law learnt later when other errands demanded their fingerprints.
“We learnt later when we had to submit and buy some documents and we were very shocked,” one politician who is also a businessman confided to this publication this week.
“We then learn that there are some fabricated criminality recorded for us, as to when did we commit those remained secret to the police, but then we had to engage our lawyers on the matter and that is when we were cleared,” said the politician-cum- tenderpreneur.
The lawyers have confirmed engaging the police and that the matters were settled in a gentlemen’s agreement and concluded.
All these happened behind the scenes with the police top brass oblivious only to be confronted by the irked lot, police sources also add. The victimized group who most of them have been fighting lengthy battles with the DIS read malice and did not blink when it was revealed that these were done by the DIS.
“And it was clear that they (DIS) are the ones in this dirty war which we don’t understand. Remember when we sue, it will be the Police at the courts not the DIS and that is why we agreed to a ceasefire more so they also requested that be kept under carpet,” said the victim.
Nonetheless, the Police through its spokesperson Assistant Commissioner, Dipheko Motube, briefly said: “we do not have any system that has been hacked.” On the other hand DIS mouthpiece Edward Robert was not in office this week to comment on the matter.
Reports however say DIS boss, Peter Magosi, who most of the victims accuse of the job, is said to have met his police counterpart Makgophe to put the matter to bed.
COVID-19 RAVAGES POLICE
As frontline workers, Police have not escaped the wrath of Covid-19. Already the numbers of those infected has reached the highest of high and they suggest that they be priorities on vaccine rollout.
“Our job is complicated, firstly we arrest including those who are non-compliant to Covid protocols and we go to accidents and many more. These put us at risk and it seems our superiors are not bothered,” said one police officer this week.
The cops further complain about that working spaces are small, as such expose them to contact the virus.
“Some tests positive and go for quarantine while the rest of the unit will be left without even test carried out. If at all the bosses are serious all the police officers should every now and then be subjected to testing or else we will be no more because of the virus,” added another officer based in Gaborone.
The government has since placed teachers on the priority list for the vaccines, it remains to be seen whether the police, who also man road blocks, will be considered.
“But our bosses should convince the country leadership about this, if not then we are doomed,” concluded a more senior officer.