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.
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.