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.
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.
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.”