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President’s word is not law – Kirby

Court of Appeal President, Ian Kirby

Presidential Directives are not law and can be overruled, the Judiciary has expressed. When setting aside the government decision to deny foreign prisoners Anti Retroviral Drugs (ARS) early this week, the court of Appeal President, Ian Kirby stated that the directives are only binding to public officers but do not amount to law.


“The exercise of executive power is subject to the Constitution and subject to the laws of the land. That is the essence of the rule of law to which Botswana is a proud adherent. The discrimination practiced here, as from being authorised by any law, flies in the face of the Prison’s act and the regulations made under it,” Kirby stated.


Despite the common belief that the President’s word is law and has to be implemented without being questioned, Kirby said Presidential Directives convey government decisions, taken by the President acting on the advice of Cabinet but the Judiciary has the power to set aside the decision.


“It follows that in terms of the wide powers granted to the Courts by section 18(2) and 95(1) of the Constitution an executive decision conveyed through a Presidential Directive will be reviewable if it is shown to be ultra vires either a law passed by Parliament or the constitution,” Kirby further pointed out.


Kirby was responding to the Attorney General’s earlier contention that the Presidential Directive constitutes a prerogative power and not subject to review.


However Kirby says the Directive may stand in matters of high policy such as the declaration of war or of a state of emergency or making of appointments to Cabinet or to other high offices but not in situations where the President decides who gets health care and who does not.


“It is certainly not so here where an administrative decision not to provide free ARV medicine to foreign prisoners was conveyed by the Permanent Secretary. Section 47(1) of the constitution which confers executive power on the President states expressly that this power is to be exercised “subject to the provisions of this constitution.”Further it is upon Parliament and not upon the President that the power to make laws is conferred by section 86 of the constitution. So in my judgment, executive power is by extension, to be exercised subject to the laws made by Parliament as well,” Kirby further stated.


The decision to deny foreign prisoners free access to ARVs was conveyed in March 2004 by the Permanent Secretary in the Ministry of Health and “no doubt in terms with the Presidential Directive it implemented.” The Permanent Secretary who is a public officer performing his functions as such directed that foreign prisoners shall be treated in a discriminatory manner by the refusal of free enrolment on ARVs and as such Kirby says, Subsection (2) was thus engaged and contravened. This he says meant prison officers or doctors who implemented that directive contravened the said legislation.


He therefore ruled that the decision to withhold free medical treatment from non-citizen prisoners was unlawful and set it aside.


Kirby further ordered the government to comply with the Prison’s Act and Regulations by providing HIV positive foreign prisoners with free testing, assessment and treatment with ARVs or Highly Active Anti Retroviral Treatment (HAART) on the same basis as citizen prisoners.


The complaint in the application which formed the subject of the appeal is that the decision of the authorities to withhold free HAART from foreign prisoners while according it to citizen prisoners was unlawful and a violation to the Prisons Act and the common law rights of the prisoners.


Kirby conceded that in terms of common law, the state has the duty to keep in good health the prisoners in its custody because having forfeited their freedom, they are unable to properly fend for themselves. This duty he said is reflected both in the legislation and in the legal precedents of most countries.


“In Botswana, notwithstanding that there is no constitutional right to health care, as there is in South Africa and some other countries, the Prisons Act and its Regulations provide the statutory embodiment of those common law principles. These include the right to equal treatment of all prisoners as well,” Kirby further stated.

Affordability

ARVs are known to be very expensive and costing in the range of P3 500 each month for one patient and the government had argued that it would be costly if it extends the free supply to non-citizen prisoners. The evidence on the issue of affordability however was not placed before court and Kirby maintained that it is actually the responsibility of government to budget for the fulfilment of its legal obligations.


“If the law requires a service to be provided, then funds must be found to provide that service, or Parliament must be engaged to amend the law. Lack of funds will not in the normal course justify disobedience of the law,” Kirby suggested.


He however added that it is generally accepted, particularly in developing countries that the courts have no role to play in dictating to the Executive or to the Legislature on issues of policy or on budgetary matters involving the use or distribution of public funds. These are matters properly within the province of the Government, with all the expertise and resources available to it, according to Kirby. He added that this is particularly so in a Constitution such as that of Botswana which does not provide for judicially enforceable socio-economic rights, such as the right to health, the right to education and the right to housing.


“It is the responsibility of the government to budget for the fulfilment of its legal obligations. Those legal obligations too must be carefully construed because they do not extend for example to the implementation of government policies even when approved by Parliament such as the HIV/AIDS policy,” he stated before adding that, “laws are passed by Parliament in the manner provided in the constitution. Policies on the other hand provide the compass by which the government and its organs are guided. They normally express ideal and intended eventual outcomes but make reservations on availability of human and financial resources. They are guidelines to be followed to all extent possible. They are not laws.”


The Botswana Network on Law and AIDS (BONELA) who was a supporting applicant in the matter alongside the three Zimbabweans had contended that the HIV/AIDS policy provides for mandatory provision of ARVs to all people in Botswana whose CD4 count has dropped to the specified number in the treatment guidelines. However Kirby had noted that the truth of the matter is that the Policy does not require the universal enrolment but rather expresses that as an ideal and that the realisation of that ideal will be subject to financial constraints.


The HIV/AIDS Policy provides for preferential treatment to be given to Botswana citizens notwithstanding its overall objective of providing ARV treatment to all where resources allow. Kirby said when this decision was taken it could have been a genuine concern by government that where treatment was not available in their countries of origin for HIV and AIDS, foreigners and in some cases illegal immigrants, might commit crimes in Botswana to gain entry to prison and get the free ARV treatment available therein. Those fears, according to Kirby might render the decision to withhold ARV treatment from foreign prisoners rational, but it would not cure the unlawfulness of the decision in the light of the provisions of the Prison Act.


“The refusal of free enrolment on HAART to non-citizen prisoners when this is afforded to citizen prisoners clearly discriminates against the non citizens on account of their place of origin and that is prohibited by subsection 3,” the court further ruled.


Meanwhile Kirby recognised the shared responsibility of the three arms of government, the Judiciary, Legislature and Executive as the very foundation of democracy in Botswana, a partnership principle which has been promoted by successive administrations since Independence Day and by the Judges of the courts.


“It is only in recent years that some tensions between the executive and legislative branches relating to the roles of each and of the Judiciary have been suggested by some litigants.  But the constructive partnership between the three branches of government to promote adherence to the rule of law remains firm and unshaken,” he asserted.

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People with Disabilities Face Barriers to Political Participation in Botswana

23rd February 2024

Individuals challenged by disabilities encounter formidable obstacles when endeavoring to partake in political processes within the context of Botswana. Political involvement, a cornerstone of democratic governance, empowers citizens to shape the legislative landscape that impacts their daily existence. Despite Botswana’s reputation for upholding democratic ideals, recent insights unveil a troubling reality – those with disabilities find themselves marginalized in the realm of politics, contending with substantial barriers obstructing the exercise of their democratic liberties.

A recent inquiry in Botswana unveiled a panorama where individuals with disabilities confront hurdles in navigating the political arena, their involvement often restricted to the basic act of voting. Voices emerged from the study, underscoring the critical necessity of fostering environments that are accessible and welcoming, affording individuals with disabilities the active engagement they rightfully deserve in political processes. Noteworthy was the account of a participant grappling with physical impairments, shedding light on the glaring absence of ramps at polling stations and the urgent call for enhanced support mechanisms to ensure an equitable electoral participation.

The echoes reverberating from these narratives serve as poignant reminders of the entrenched obstacles impeding the full integration of individuals with disabilities into the democratic tapestry. The inaccessibility of polling stations and the glaring absence of provisions tailored to the needs of persons with disabilities loom large as formidable barricades to their political engagement. Particularly pronounced is the plight of those grappling with severe impairments and intellectual challenges, who face even steeper hurdles in seizing political participation opportunities, often grappling with feelings of isolation and exclusion from the political discourse.

Calls for decisive action cascade forth, urging the establishment of more inclusive and accessible political ecosystems that embrace individuals with disabilities in Botswana. Government bodies and concerned stakeholders are urged to prioritize the enactment of laws and policies designed to safeguard the political rights of individuals with disabilities. Furthermore, initiatives geared towards enhancing awareness and education on political processes and rights for this segment of society must be spearheaded, alongside the adoption of inclusive measures within political institutions and party structures.

By dismantling these barriers and nurturing a political landscape that is truly inclusive, Botswana can earnestly uphold its democratic ethos and afford every citizen, including those with disabilities, a substantive opportunity to partake in the political fabric of the nation.

 

 

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Neo Kirchway- Defying the odds

23rd February 2024

In the heartwarming tale of Neo Kirchway, a beacon of inspiration emerges, shining brightly amid life’s adversities.

Defying the constraints of destiny, Neo Kirchway, a resilient Motswana soul now thriving in the United States, stands tall despite the absence of her lower limbs. With unwavering determination, she tends to her cherished family – a loving husband and four children – engaging in the daily symphony of household tasks with remarkable grace.

Neo’s indomitable spirit traces back to the fateful year of 1994, a time when medical intervention called for the amputation of her curled legs. Embracing this pivotal juncture with unwavering courage and the blessing of her mother, she ventured forth into a world adorned with prosthetic legs, eager to script a tale of triumph.

Venturing beyond borders, Neo’s journey led her to the embrace of the United States, where serendipity intertwined her fate with that of her soulmate, Garrett Kirchway. Together, this harmonious duo navigates the ebbs and flows of life, their bond fortified by unwavering love and unyielding support.

In a bid to illuminate paths and embolden hearts, Neo leverages the digital realm, crafting a sanctuary of empowerment on her YouTube channel. Brimming with authenticity and raw emotion, her videos chronicle the tapestry of her daily life, serving as a testament to resilience and the unwavering human spirit.

Amidst the digital cosmos, Neo, affectionately known as “KirchBaby,” reigns supreme, a luminary in the hearts of 658,000 enraptured subscribers. Through her captivating content, she not only navigates the mundane tasks of cooking, cleaning, and childcare but also dances with celestial grace, a testament to her boundless spirit and unyielding zest for life.

In the cathedral of Neo Kirchway’s narrative, resilience reigns supreme, echoing a universal truth – that amidst life’s gales, the human spirit, when kindled by hope and fortitude, emerges as a beacon of light, illuminating even the darkest of paths.

 

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Inequalities Faced by Individuals with Disabilities

22nd February 2024

The government’s efforts to integrate individuals with disabilities in Botswana society are being hampered by budgetary constraints. Those with disabilities face inequalities in budgetary allocations in the health and education sectors. For instance, it is reported that the government allocates higher budgetary funds to the general health sector, while marginal allocations are proposed for the development and implementation of the National Primary Health Care guidelines and Standards for those with Disabilities. This shows that in terms of budgetary solutions, the government’s proposed initiatives in improving the health and well-being of those with disabilities remain futile as there is not enough money going towards disability-specific health programs. On the other hand, limited budgetary allocations to the Special Education Unit also are a primary contributor to the inequalities faced by children with disabilities. The government only provides for the employment of 15 teachers with qualifications in special education despite the large numbers of children with intellectual disabilities that are in need of special education throughout Botswana. Such disproportional allocation of resources inhibits the capacity to provide affordable and accessible assisted technology and residential support services for those with disabilities. Given the fact that a different amount of resources have been availed to the education and health sectors, the general understanding is that the government is not doing enough to ensure that adequate resources are distributed to disability-specific programs and facilities such as barrier-free environments, residential homes, and special education schools for children with disabilities.

 

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