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.
Despite the President Dr Mokgweetsi Masisi and his Namibian counterpart, Hage Geingob giving an impression that the borderline security disputes are a thing of the past and that diplomatic ties remain tight, fresh developments from Namibia suggest otherwise, following Geingod’s close confidante’s attack on Botswana and its army.
Giving a Zambezi region state of the affairs last week, a Geingob-appointed governor of Zambezi region, Colonel Lawrence Ampofu, a retired Colonel in the Namibian Defence Force, former plan combatant during the liberation struggle of Namibia, in a written speech, charged at the BDF and condemned their killings of the Namibians as unacceptable.
“The security situation within our borders remains calm. The incidence of the Botswana Defence Force shootings and wanton killings on the Nchindo Brothers on 05 November 2020 and other 37 Namibian lives lost since independence remain a serious challenge with our neighbor, Botswana.
Our residents living along the Chobe, Linyanti and Kwandu rivers are living under constant threats, harassment, fear, intimidation and killings and such activities are condemned and not acceptable,” he said under the safety and security title.
The attack suggests that Namibia has not bought Botswana’s story. Ampofu was part of the entourage that accompanied Geingob to the three Nchindo brothers and their cousin who were gunned down by the BDF, and is reported to be privy to the details of the unpublished Botswana-Namibia joint investigations report about the killings as a governor or political head of the region which has eight electoral constituencies.
The report contains the sensitive details of how the three Namibians referred as poachers by the BDF – and Fisherman by the Namibian government were gunned down on 5 November last year along the Chobe River. They were Tommy (48), Martin (40) and Wamunyima Nchindo (36), and their cousin Sinvula Muyeme (44).
His views are not really in contrast to his President’s views who also described the BDF as trigger happy in a scripted report to his cabinet.
The Zambezi region is located in the extreme north east part of Namibia and covers a total of 14,667.6 square kilometres. “We share borders with Angola, Zambia to the north, Zimbabwe to the east and Botswana to the South,” he said.
Sampofu was first appointed governor of the former Caprive Region in 2010 by the former Namibian president, Hifikepunye Pohamba and was reappointed as Zambezi governor by President Dr.Hage Geingob in 2015, a term running to 2025.
37 Namibia residents killed by Botswana army so far
Sampofu is a man who continues to insist that Botswana has killed 37 residents of his region. A video posted by the Namibian Broadcasting Corporation (NBC) shows him alleging that at least 37 Namibians were killed by the BDF, after he met with the community at Impalila.
“It is true, the BDF started long ago. As we speak 37 lives have been lost here in Impalila along the Chobe river going to Linyanti and Kwado rivers up to Lizauli. All those families lost their loved ones,” Ampofu said in the video posted by NBC.
It is not known how the BDF, which has maintained their position that the Namibians were engaging in illegal activities of poaching, treats the constant attacks by the Namibian authorities, but they have repeatedly vowed to continue protecting the country’s sovereignty and natural resources.
Botswana’s premier brewer and leading distributor of beer, Kgalagadi Breweries Limited (KBL), this month dragged the government of Botswana to court after President Mokgweetsi Masisi imposed an alcohol ban with immediate effect. KBL labelled the decision as unjustifiable, irrational and that it overrides the rights that are enshrined in the constitution.
This week, Masisi through attorneys representing the government disparaged the case in his written affidavit of KBL’s application, referring to it as frivolous and that it ought to be dismissed with costs on a punitive scale.
In his court papers, Masisi reminded KBL that Botswana is a Republic whose laws find validity from the constitution, and in terms of Section 17 of the constitution the President is empowered to declare a State of Emergency and that it is a common cause that Botswana is under such state.
“It is common course that there is in existence emergency powers (Covid-19) Regulations 2020 as amended from time to time which is solely designed to regulate the Covid-19 pandemic,” he said.
Masisi pointed out that he denies that the application before Court is proper such as to challenge the lawfulness and validity of a regulation made and a notice published in the exercise of a legislative function in accordance with the Emergency Powers Act which empowers the President to make regulations as appear to him to be necessary and expedient for securing public safety.
Furthermore, the President revealed that the decision to ban alcohol sales was not arrived at willy-nilly, but rather that there had been careful considerations that the risks posed by Covid-19 had increased and therefore it was expedient and necessary to suspend all liquor licenses.
Moreover, Masisi denied that the decision to reinstate the ban should be made by the Director of Health Services as indicated by KBL in their nature of the application, “the Director is to cause the notice to be published in the Gazette after consultation with the President.”
Masisi indicated that the role of the Director of Health Services is to publish a regulation made by the President.
He further, reminded KBL that the power to make regulations in a State of Public Emergency in accordance with the EPA lies with the President, “such power includes the amendment of any enactment, suspending the operation of any enactment or modification of an enactment.”
According to Masisi, his decision to ban alcohol sales was based on evidence provided by the Director of Health Services who indicated to him that there was a sudden spike in the transmission of the Covid-19 virus following the reinstatement of liquor licenses.
Another piece of advice tendered by the Director of Health to Masisi was that bars and other liquor outlets were some of the major hotspots in the sense of such being high-risk areas at which the virus spread rapidly.
“Alcohol was one of the major causes of non-compliance with the health protocols that were put in place to control the spread of the Covid-19 virus. Further, there was an indication that more arrests were made on people failing to adhere to Covid-19 protocols more particularly at places where there were gatherings,” he contended.
He pointed out that therefore, it was expedient and or necessary to preserve lives and to reduce the risks of transmissions of the virus to reinstate the suspension of liquor licenses.
Moreover, the President says that it must be noted that he avers that the Director of Health Services is a credible source on matters of public health of which he also accordingly gave due weight to the Director’s advice on deciding to reinstate the ban through the impugned notice.
“I am aware and was always aware at the time of promulgating the regulation complained of that it shall negatively affect some sectors of the economy. However, after due consideration and receipt of advice, I decided to give priority to the safety and health of the nation,” Masisi said.
He presaged KBL that it would not be prudent and in the best interest of the nation to ignore a health emergency such as Covid-19 and gave preference to trading and making of profits by the applicant. “The results would only be catastrophic to the extent that when we emerge from the scourge we would be left with a depleted and ailing nation from Covid-19 and its side effects.”
Furthermore, his written affidavit further pointed out that the decision to reinstate the ban on alcohol was taken notwithstanding understanding and appreciation of the economic hardships that would befall the country.
However, he said he deliberately made the decision based on the evidence provided to him by the Director of Health, whose evidence he believes to be credible to give public/safety and health priority over economic considerations in some sectors.
In making the decision, Masisi states that he was and considered different options including allowing for sale of alcohol consumption off premises, however the evidence he had been provided with suggested that such other alternatives would not achieve the overall objective of securing public safety and health by reducing the risk of the spread of the virus.
“By the time I imposed the ban, alcohol was already being sold for consumption off-premises. This did not work. The information provided to me by the Director and the Presidential Task-Force team demonstrated that consumers purchased alcohol and then loitered and consumed it within the peripheries of bars and other liquor outlets,” he said.
Attached to the affidavit as emphasis, were photographs and videos of Gaborone West, Phase 4 in mid-June 2021, which he explains circulated on social media and was brought to his attention.
“I need not say much about the photos as they depict a crowd exceeding 50 gathered at the parking area of a bar. There is little or no regard to Covid-19 protocols. It was clear to me and my advisors, including the Director of Health Services and members of the Presidential Task-Force team that the total ban of alcohol was necessary to manage the risk of increase in infections, to understand what seems to have led to an increase in the risk of infection when alcohol is present I was advised by the Presidential Task-Force team that scientifically there has been evidence that alcohol narrows physical distance,” he argued.
Masisi says that allegations made by KBL are serious allegations of infringement of fundamental rights yet they fail to state how imposition and reinstatement of the suspension of liquor licenses out of necessity and expediency of the health of the nation infringes on the rights as alleged.
In an embarrassing turn of events that depicts disintegration in government communication on the fight against COVID-19, President Mokgweetsi Masisi and Assistant Minister of Health & Wellness, Sethomo Lelatisitswe gave two conflicting statements on the same matter, same day, just minutes apart.
The Commander-in-Chef told health practitioners and residents in Ramotswa that the COVAX facility has scammed African countries after billions were paid in a crowd funding effort to procure COVID-19 vaccines in bulk.
“We have pumped money as developing countries of the African continent into the COVAX Facility but the returns were not satisfactory, they cheated us,” the President said in Ramotswa.
According to President Masisi, the COVAX facility Vaccine only came in bits and pieces, frustrating the continent ‘s head immunity targets amid rapidly spreading Delta Variant which is currently reversing all progress made by Africa in containing the contagious virus.
“What we are getting is very small portions of the vaccine, they keep telling us that there is shortage of supply, this is not fair, but we have paid in advance, however what can we do, we have no choice but to spend more money and look for other avenues of securing other available vaccines,” he said.
Meanwhile in Gaborone, Assistant Minister of Health and Wellness told Parliament that vaccine from COVAX facility is anchoring Botswana’s vaccination program.
“I am not aware of such information that COVAX facility is not delivering as expected, we are actually bolstered by COVAX facility in this country,” he said responding to a question from Mahalapye West Member of Parliament David Tshere who is also Chairman of Parliament Committee On Health and HIV/AIDS.
“We have received doses as ordered from the COVAX facility, and we are still receiving more, I have not seen that information which is purported to have been revealed by the President, unless its new information, we as the Ministry we are not aware of any frustrations by the COVAX facility,” he said.
COVAX is co-led by the Coalition for Epidemic Preparedness Innovations (CEPI), Gavi and the World Health Organization (WHO), alongside key delivery partner UNICEF.
Its aim is to accelerate the development and manufacture of COVID-19 vaccines, and to guarantee fair and equitable access for every country in the world.
The facility is a global coalition that works to ensure fair and equitable access of COVID-19 vaccines around the world. So far, 190 countries have joined the COVAX initiative, including all 22 countries in the Eastern Mediterranean Region.
The COVAX Facility aims to have 2 billion doses of COVID-19 vaccines available for distribution across the globe by the end of 2021, targeting those most at risk (e.g. frontline health workers) and most vulnerable severe diseases and death (e.g. elderly and people with co-morbidities).
On other vaccination issues President Masisi revealed, still in Greater Gaborone vaccination centre visits, that Botswana has placed orders with Pfizer, a United States vaccine producer noting that they have promised to deliver next year.
Meanwhile, government kick-started phase two of the Covid-19 vaccination program this week, opening up for ages between 30 and 54.
President Masisi revealed that this was done because some elderly were reluctant to be inculcated.
“We can’t take forever trying to convince people to take vaccine, we moved to the next age segments because we cannot afford to have vaccines-which are already in shortage supply to just lie there,” he said.
On Friday, Ministry of Health revealed that it was receiving large numbers of people below the age of 55 lining up to be vaccinated.
In a statement the Ministry of Health said it, “acknowledges the huge turnout that marked the commencement of the Phase two COVID-19 vaccination program”.
Given this high turnout, especially in the Greater Gaborone region, the ministry announced an extension of operation hours in order to serve the huge crowds that had come for vaccination.
Of the nearly 85 000 doses that were being doled across the country as first doses, the majority of the Greater Gaborone vaccination sites were already getting depleted by 1800hrs on 22 July 2021.
As a result of this development, the ministry took a decision to discontinue the extended hours of operation announced yesterday for vaccination sites in Gaborone.
This means that vaccination sites in Gaborone and elsewhere in the country which still have some vaccines, will offer them in the normal working hours and days of the week.
The Ministry says it appreciates the great desire to be vaccinated shown by thousands of citizens and residents of this country and wishes to assure them that it will continue to expedite their vaccination every time vaccines become available. As has been communicated in various fora, more vaccines are expected in August 2021.
As at July 2021, Botswana has so far received 62, 400 doses of AstraZeneca/COVISHIELD bought through the Covax facility, 30,000 doses of AstraZeneca vaccine donated by the Republic of India, 19, 890 doses of the Pfizer vaccine bought through the COVAX facility, 200, 000 doses of the Sinovac vaccine, donated by the Peoples Republic of China and another 200, 000 doses of the Sinovac vaccine bought through bilateral negotiations with Sinovac company in China.
“We encourage Batswana to remain hopeful that although it’s taking longer than anticipated, enough COVID-19 vaccines will eventually arrive in our country. We urge them to always strictly abide by all COVID-19 protocols so that they protect themselves and others from this deadly virus,” the ministry said.