Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPPPUSU) has repudiated the Judge President of the Court of Appeal (CoA), Justice Ian Kirby for “provocative” remarks he uttered during the opening of the Court of Appeal session, beginning of the year.
Kirby had in his statement castigated unions and opposition parties against attacking him for cases that they have lost against the government and labelled the judges presiding over those matters and those who made the judgements as “executive minded”. In a long strong worded response to Justice Kirby, BOFEPPPUSU cautioned that if Judges (like Kirby) are caught expressing their personal opinions in Court, they will subsequently be criticized and ostracized. However, the union federation pointed out that if they remain silent, then they will survive the wrath.
BOFEPPPUSU Deputy Secretary General, Ketlhalefile Motshegwa, said “in his vitriolic attack on the unions and opposition parties (because it is nigh impossible to attack the ruling Botswana Democratic Party (BDP), Justice Kirby did not only attack unions and opposition parties, but his young colleagues in the lower Courts, presumably, the High Court.”
Kirby, when marking the opening of the Court of Appeal session this month uttered that, “the term, Executive–minded” is often used by parties, Unions or interest groups who have been unsuccessful in litigating a case against government, to describe the Judge who wrote their judgment.”
Kirby also blatantly stated that in Botswana there is no real separation of power between the Executive and the legislature while adding that the public service is led by the President and his Cabinet Ministers, who are all also full members of Parliament.
The Judge President also pointed out that “it is perhaps because of this need for stability and certainty that usually older and more seasoned individuals are appointed to the Court of Appeal bench. We have all been young and progressive Judges once, eager to leave our mark in the law reports with innovative and ground-breaking judgments, and to be remembered in a sense, for having in one way or another made or changed some aspect of the law.”
However, Motshegwa is alarmed by Kirby’s utterances. He in fact expressed that BOFEPPPUSU resolved not to let Kirby’s unprovoked vitriolic attack on the unions go unchallenged. He said they have also observed time without number that Justice Kirby is fond of either attacking unions and other interest groups in our society or making orbiter decisions on matters that he knows he will not be able to sit on or are still pending at the High Court; or when a statutory notice is issued against Attorney General as in the case of President Khama versus Omphemetse Motumise and Law Society of Botswana matter.
Motshegwa raised concern that Kirby’s remarks may affect the outcome of some cases, “we know that currently there are cases still to be heard by the Court of Appeal, which cases hinge on judicial independence and separation of power doctrines. Such cases include the Law Society (on behalf of Motumise) versus President Khama, four suspended Judges versus Khama, Outsa Mokone versus State and Manual Workers Union versus Khama.”
He added that it is therefore in light of the above cases, save for Mokone case, that Justice Kirby will not sit to propagate the executive viewpoint. The union leader highlighted that it has become habitual that the remaining Justices of Appeal either concur with Kirby’s decisions or will make decisions on the basis of the commands contained in Kirby’s speeches or Kirby’s orbiter dicta statements.
On separation of powers Motshegwa asserted that in future, owing to his public opinion, they want Judge President Kirby not to preside over their cases which deal with separation of powers, judicial independence and other public interest matters because “he already has an opinion and we hope his opinion was not also a directive to other Court of Appeal Judges to follow suit”.
He added that, “We are witnessing a situation where our Court of Appeal Judges always concur with Judge President in public interest matters. This is an indication that our Court of Appeal practices excessive judiciary timidity.” “Justice Kirby is wrong to say in Botswana there is no separation of power,” the union leader further said.
He explained that in Botswana like in America or South Africa, there is the Judiciary, Legislature and Executive and that in South Africa and Botswana, unlike in America, Ministers are members of the National Assembly. “They (Ministers) are appointed amongst the elected 400 members of the South African Legislature by the President. In South Africa like in Botswana the President and Minister of Public Enterprises are the head of Public Service,” Motshegwa contended against Kirby’s statement. “Our Court of Appeal seems to have regressed since it was localized because the citizen Judges seem to be all conservative and pro-Establishment,” he further quipped.
In Botswana, the BOFEPPPUSU DSG said, since the ascendancy of Khama to the Presidency of the Republic, the Court of Appeal is practicing excessive judicial timidity and its executive-mindedness is worsening by the day. He highlighted the fact that the Judicial Service Commission is made up of; the Chief Justice, Justice Maruping Dibotelo, President of the Court of Appeal, Justice Kirby, the Attorney General, Dr Athaliah Molokomme, the Chairman of Public Service Commission, a member of the Law Society nominated by the Law Society and a person who is not a lawyer, and all are appointed by the President except the Law Society of Botswana representative.
The BOFEPUSU DSG said in terms of Section 5(1), 96(1), 100(1) and 109(1) of the Constitution of Botswana, the President appoints his political gate keepers to the positions of Attorney General, Chief Justice, The President of Court of Appeal (the highest court), and the Chairman of Public Service Commission to the JSC to protect his interests and those of the Executive.
He added that “the Chief Justice empanels Judges who hear or sit in matters that involve the President. The President of Court of Appeal decides who hears matters of public interests which involve the President. The current President of Court of Appeal has a long history of association with the Khama family. He also presides over matters that are brought against President Khama.”
According to Motshegwa, tendencies of empanelling the bench with the usual Judges whose decisions are predictable whilst sidelining others speaks volumes of the rot in the Judiciary of Botswana. Motshegwa further emphasized that the struggle to fight for the welfare of workers in Botswana will not be deterred by excessive judicial timorous officers.
He continued: “we will die in the trenches fighting for the rights of workers and for generations yet unborn. Everything has its own timeline. A time will come when we will call audit of judicial competence to deal with judicial packing by Khama.” Meanwhile on his part Law Society of Botswana (LSB) Chairperson, Kgalalelo Monthe told this publication separately that the Society was “uncomfortable” with Kirby’s statement during the opening of the Court of Appeal session.
“You know he even spoke about this while some matters are still to be presided over by the Court of Appeal itself,” Monthe complained. According to Monthe, some of the matters to be decided by the Court of Appeal include the one involving the separation of power, which Kirby has already touched on.
“The separation of power matter is still before the courts and one cannot dwell into the details of it like the Judge President did in his statement.” Monthe further noted that, “You see, the duty of the Judge is to interpret the law. They state what the law says. And as to consequences, it is for other arms of government to see what to do.” He said Kirby was also sounding prescriptive to other Judges when he stated “his opinion” and said he hopes “other Judges agree” with him.
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.”