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.
While there is no hard-and-fast rule in politics, former Molepolole North Member of Parliament, Mohamed Khan says populism acts in the body politic have forced him to quit active partisan politics. He brands this ancient ascription of politics as fake and says it lowers the moral compass of the society.
Khan who finally tasted political victory in the 2014 elections after numerous failed attempts, has decided to leave the ‘dirty game’, and on his way out he characteristically lashed at the current political leaders; including his own party president, Advocate Duma Boko. “I arrived at this decision because I have noticed that there are no genuine politics and politicians. The current leaders, Boko and President Dr Mokgweetsi Masisi are fake politicians who are just practicing populist politics to feed their egos,” he said.
Former Botswana Democratic Party (BDP) parliamentary hopeful, Lawrence Ookeditse has rejected the idea of taking up a crucial role in the Botswana Patriotic Front (BPF) Central Committee following his arrival in the party this week. According to sources close to development, BPF power brokers are coaxing Ookeditse to take up the secretary general position, left vacant by death of Roseline Panzirah-Matshome in November 2020.
Ookeditse’s arrival at BPF is projected to cause conflicts, as some believe they are being overlooked, in favour of a new arrival. The former ruling party strategist has however ruled out the possibility of serving in the party central committee as secretary general, and committed that he will turn down the overture if availed to him by party leadership.
Ookeditse, nevertheless, has indicated that if offered another opportunity to serve in a different capacity, he will gladly accept. “I still need to learn the party, how it functions and all its structures; I must be guided, but given any responsibility I will serve the party as long as it is not the SG position.”
“I joined the BPF with a clear conscious, to further advance my voice and the interests of the constituents of Nata/Gweta which I believe the BDP is no longer capable to execute.” Ookeditse speaks of abject poverty in his constituency and prevalent unemployment among the youth, issues he hopes his new home will prioritise.
He dismissed further allegations that he resigned from the BDP because he was not rewarded for his efforts towards the 2019 general elections. After losing in the BDP primaries in 2018, Ookeditse said, he was offered a job in government but declined to take the post due to his political ambitions. Ookeditse stated that he rejected the offer because, working for government clashed with his political journey.
He insists there are many activists who are more deserving than him; he could have chosen to take up the opportunity that was before him but his conscious for the entire populace’s wellbeing held him back. Ookeditse said there many people in the party who also contributed towards party success, asserting that he only left the BDP because he was concerned about the greater good of the majority not individualism purposes.
According to observers, Ookeditse has been enticed by the prospects of contesting Nata/Gweta constituency in the 2024 general election, following the party’s impressive performance in the last general elections. Nata/Gweta which is a traditional BDP stronghold saw its numbers shrinking to a margin of 1568. BDP represented by Polson Majaga garnered 4754, while BPF which had fielded Joe Linga received 3186 with UDC coming a distant with 1442 votes.
There are reports that Linga will pave way for Ookeditse to contest the constituency in 2024 and the latter is upbeat about the prospects of being elected to parliament. Despite Ookeditse dismissing reports that he is eying the secretary general position, insiders argue that the position will be availed to him nevertheless.
Alternative favourite for the position is Vuyo Notha who is the party Deputy Secretary General. Notha has since assumed duties of the secretariat office on the interim basis. BPF politburo is expected to meet on 25th of January 2020, where the vacancy will be filled.
Botswana Democratic Party (BDP) big wigs have decided to cancel a retreat with the party legislators this weekend owing to increasing numbers of Covid-19 cases. The meeting was billed for this weekend at a place that was to be confirmed, however a communique from the party this past Tuesday reversed the highly anticipated meeting.
“We received a communication this week that the meeting will not go as planned because of rapid spread of Covid-19,” one member of the party Central Committee confirmed to this publication. The gathering was to follow the first of its kind held late last year at party Treasurer Satar Dada’s place.