The Law Society of Botswana (LSB) has made it clear that it was not bluffing when it expressed its intention to challenge the appointment of Justice Brand to the court of Appeal bench along with any “secretive” appointments to the High court and court of Appeal benches. In a perhaps cleverly orchestrated and swift move, the Society served the Attorney General and the Judicial Service Commission with a statutory notice of the lawsuit, a day after LSB chairperson Lawrence Lecha made mention of the intention to challenge Brand’s appointment.
Lecha first spoke about the intention to challenge Brand’s appointment during the opening of this year’s legal year at the Gaborone High court on Tuesday this week. The following day the Society served the Attorney General and the Judicial Service Commission with the statutory notice detailing the intention of the lawsuit. The State President, Lieutenant General Seretse Khama Ian Khama, the Judicial Service Commission (JSC) and the Attorney General will be sued at the expiry of the thirty day statutory notice. “Please take notice that the above named claimant intends, at the expiry of the thirty days, to launch court proceedings against the President of the Republic of Botswana Lieutenant General Seretse Khama Ian Khama (the “President” and/ or the Judicial Service Commission (“JSC) and /or the Government of the Republic of Botswana for an order in the following terms, an order reviewing and /or setting aside and declaring as unlawful, null and void the appointment of Mr Justice Frederik Daniel Jacobus (Fritz) Brand as the Judge of the court of Appeal,” the notice reads it part.
The LSB would further ask the court to make an order directing and ordering the JSC to provide and or disclose the process followed in identifying and placing before the JSC for appointment the 66 year old Brand.
Alternatively they would ask for an order reviewing and setting aside the decision of the JSC to recommend him for appointment.
Around October last year, 2015, President Khama appointed Brand as the Judge of the court of Appeal. The appointment accordingly followed the recommendation by the JSC and Judge President of the Court of Appeal, Ian Kirby says Brand did not apply for the job, but was rather “invited.”
The main objection however is that Brand’s appointment was clouded by secrecy which is common in the appointment of Judges in the country.
“In making the recommendation, the JSC never placed an advert in the Botswana government Gazette and in fact did not place any notice at all requesting for interested persons to fill the vacant position aforesaid,” LSB stated.
It further stated that, although Brand had started his job, to date, it is unknown as to who exactly negotiated and approached him for appointment.
“The LSB therefore contend that the manner of appointment to such a high Judicial office in a highly secretive and clandestine manner is unlawful and goes against all known rules of transparency in a democratic dispensation and is contrary to law,” it further contended.
The LSB also intends to ask the court to declare that the current system of recommendation for appointment as carried out by the JSC lacks transparency, openness and is irregular and contrary to law and good governance.
They would therefore ask the court to direct the JSC to advertise all or any vacant positions in the court of Appeal and the High court and to conduct interviews in respect thereof before making a recommendation for any appointment of a Judge.
According to LSB Executive Secretary, Tebogo Moipolai, the decision to challenge Brand’s appointment was first made in November, 2015, but due to some tactical legal issues that required to be resolved was revisited in December and again the resolution was confirmed.
“The reasons for the challenge relate to the process of appointment. As with others at the CoA (Court of Appeal) it lacks transparency since there was no advertisement or interview. It is not known to LSB even with a member in the JSC, where and how he was approached and by who,” Moipolai explained.
The other reason for the challenge, Moipolai says, is as stated by the LSB Chairperson, Lecha in his speech, on Tuesday this week before President Khama, Attorney General and the JSC when the High court legal year of 2016 was officially opened at the Gaborone High court.
Lecha had mentioned that, over the years, since as far back as 2006, or earlier, the LSB has advocated for a change in approach to the process of appointment of Judges with very limited success.”
He said although the interpretation of the Constitution was before the court in as far as the appointment of Judges was concerned, he was disappointed that, “whilst this litigation is ongoing, the Judicial Service Commission moves on with the same process that is being challenged. We would have thought that it would be prudent to allow the courts to pronounce on the proper process to follow first, or at best on the side of caution and accept the interpretation suggested by the Society in the interim.”
At the time Lecha was speaking, a Judgment in which the society was challenging the refusal to appoint a local Attorney, Omphemetse Motumise by President Khama was yet to be issued. Khama refused to make the appointment even though Motumise was recommended by the JSC as required by law.
Lecha further added that, “an accepted principle in the dispensation of justice is that the Presiding Officers of courts must reflect the demographics of the society that those courts serve. The Society however notes that this is not the case in the High Court and especially the Court of Appeal where gender, race and age are disproportionate to the demographic position of the country.”
Gov’t reacts to Lecha’s remarks
Lecha’s remarks seemingly rubbed government officials the wrong way and the Ministry of Defence, Justice and Security in particular demanded an apology. The Ministry lamented that the speech contained racist, xenophobic and discriminatory undertones. Even the Judge President of the court of Appeal, Justice Ian Kirby was not amused and expressed the same view as the Ministry. He labelled Lecha’s remarks as “rude”.
Nonetheless the LSB has maintained that it stands by the speech and that it would not apologise.
“It needs to be stated that being a multiracial, multicultural and tolerant nation does not mean as a society we should shy away from publicly dealing with issues simply because they deal with race,” LSB retorted in a press statement that followed.
It further added that, “Any suggestion that it (speech) has racial, xenophobic and discriminatory undertones is either indicative of a serious dearth of knowledge of social sciences or simply mischievous. As said in the speech, in South Africa, the often talked about transformation of the Judiciary which is being championed by the country’s Chief Justice is based on this very same principle and the country has made great strides in that regard whilst Botswana, a much older democracy lags behind.”
Meanwhile Botswana’s Chief Justice, Maruping Dibotelo says his ideal Judiciary has to be well resourced and independent.
“I have committed what remains of my tenure as Chief Justice to ensuring that the Judiciary is properly resourced to enable it to discharge its constitutional mandate,” he stated and added that while he agrees that key Stakeholders in the Justice system must in general work together towards delivery of quality justice, “it should not be interpreted as equating the Judiciary which is an arm of the State, to Departments or Institutions that fall under the Ministry of Defence, Justice and Security because to do so could undermine and cloud the independence of the Judiciary which we continue to guard jealously at all times”.
“The Judiciary is required and must be a strong, impartial, independent and accountable Institution. Independence of the Judiciary is neither an esoteric pronouncement nor a privilege for the conform of Judicial Officers but a right and a practical measure for the benefit of Citizens, in a democratic state such as ours, to ensure that courts are true and genuine arbiters of cases brought before them. Whatever a litigant is standing or position in society we are all deemed equal before the law,” Dibotelo pointed out.
Dibotelo further expressed concern at the growing number of lawsuits against the State President.
“2015 was a turbulent year for the judiciary, a year marked by a litany of litigation against His Excellency the President, The Judicial Service Commission, The Attorney General etc. The litigation not only tested the integrity, strength of our Judiciary, and our commitment to adherence to the Rule of law but on hindsight equally demonstrated public confidence on the judiciary to promptly and adequately address issues brought before it,” he stated.
However the LSB suggests that the Chief Justice “is all talk but no action” because, “there has in the last few years been an unmistakable impression that cases of national importance or significance to Government always find themselves before the same Judges or panel of Judges, be it at the court of Appeal or the High court.”
The Society stressed that the society needs to be placed on record that Forum Shopping is as deplorable as the Chief Justice said in 2014, “Any partial allocation of cases further destroys the credibility of our judiciary.”
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.”