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.
Stanbic Bank Botswana Quarterly Economic Review indicates that Botswana will fail to meet some of its Vision 2036 targets, particularly unemployment reduction and reaching high-income status.
The report says this is mainly due to the slow economic growth that the country is currently experiencing. This Quarterly Economic Review focuses on the 2020 Budget Speech.
The first paper reviews the entire budget with its key observations being that this budget is prepared as prescribed by the Public Finance Management Act; the priorities it seeks to address are drawn from Vision 2036 and the eleventh
The 2020 budget Speech, which was the maiden speech by the Minister of Finance and Economic Development, Dr. Thapelo Matsheka, and the first after the 2019 general elections, was delivered to Parliament on the 4th of February 2020.
It has been well received by the labour unions, business community, and the public at large as well as international organisations such as the International Monetary Fund (IMF).
It mainly derived its support from key facets including, emphasis on changing the business-as-usual approach to development; outlining the transformation agenda; fiscal reform that minimizes the negative impact on economic development and human welfare, competiveness and the decision to implement the 2019 negotiated and agreed public sector.
The budget’s progress review shows that economic growth was consistent with the NDP 11 projections, with growth of around 4 percent. At this growth rate, the country would neither ascend to a high-income status nor reduce unemployment towards the Vision 2036 target of a single digit.
Simple calculations of this review confirm that the economy will need to grow the Vision 2036’s target of 6 percent over the next 16 years for per capita income to increase from around USD 8,000.00 to above USD 12,000.00 in current prices.
Further, the population is anticipated to grow by only 2 percent per annum.
For this reason, the focal areas for the forthcoming FY’s budget include measures to increase economic growth towards an average of 6 percent per annum.
Economic diversification is reportedly progressing fairly well. The report says, the share of the non-mining private sector in value added has risen to 66 percent in 2018 from to 63 percent in 2015.
The sectoral pattern of growth showed that the performance of services sector (particularly transport & communications, trade, hotels & restaurants, and finance & business services) has been the silver lining and that of mining sector was subdued whilst the utility sector disappointed.
The drive towards the service sector of the economy, especially to low-productivity activities (tourism, public administration, wholesaling and retailing) does not bode well for the country’s development aspirations.
In the previous versions of this Quarterly Review, it was noted that there is need for the rethinking of economic diversification. Since the country’s domestic market is small, it is inevitable that economic diversification not only focus on broadening the product mix, but also the composition of exports and markets.
This understanding of economic diversification has not been embraced by this year’s budget. Consequently, Botswana’s exports are still overwhelmingly diamonds, which means that the rest of economic sectors are still highly dependent on foreign-exchange earnings from diamonds. Thus, “the transformation programme requires a review of the country’s entire ecosystem”.
The budget review of the economic context also depicts that an economy with positive medium-term prospects, with growth expected to recover to 4.4 percent in 2020 from the expected growth of 36 percent in 2019 largely due to faster growth of services sectors and, thereafter, to slow-down to 4 percent in 2021.
These projected growth rates are comparable to those of the IMF staff’s baseline scenario of 4.2 percent in 2020 and 4 percent in 2021. Thus, the business-as-usual scenario produces growth rates that are still too low to achieve Botswana’s development objectives and create enough jobs to absorb the new entrants into the labour market.
Trade tensions between the two major markets for diamond exports, viz., the United States of America and China, is one of the factors that are cited as contributing to, indeed, undermining not only the domestic growth, but also the fiscal position.
Another notable downside risk to both global and domestic growth is outbreak of the coronavirus in China around January 2020. This has been declared as a global health emergency. In an attempt to contain the spread of the novel coronavirus pneumonia, the Chinese authorities have ordered city lockdowns and extended holidays, of course, at the expense of near- term economic growth, according to the new Stanbic Bank Botswana report.
According to Nomura Holdings Inc., fewer migrant workers returned for work than in previous years and business activities have been slow to pick up. The havoc wreaked by the virus on the world’s second largest economy is likely to spill over to the global economy. In fact, it has resulted in a glut in crude oil and, thereby placed oil markets into a contango, i.e., a market structure where near-term prices trade at a discount to future contracts.
It also presents significant risks one of Botswana’s main drivers of economic growth, diversification and foreign exchange earnings. According to the Financial Times (February 13, 2020), Chinese tourists spent $130 billion overseas in 2018. Regardless of whether the growth materializes, the projected domestic growth rate would not transform the economy to a high-income one.
Progress towards reduction of unemployment, to a target of single digit, and poverty and achieving inclusive growth has also been relatively slow, the Stanbic Bank Botswana Review says.
Ministry of Presidential Affairs, Governance and Public Administration (MOPAGPA) has through the Office of the President (OP) proposed to avail Orapa House for use by private training institutions as well as research institutions involved in the area of technology development.
For a very long time the monumental building located in the heart of the city has been a white elephant, despite government purchasing it for nearly P80 million from De Beers in 2012.
However, government has now identified a productive use for the iconic building. “The overall vision is for the building to be transformed into a hub for digital technology research and development to be carried-out by institutions, such as; Limkokwing University, BIUST, BITRI and other relevant stakeholders.”
The decision was taken as government traverse a new path of transforming the economy from a mineral led economy to a knowledge based economy through the promotion of research and innovation. However, the facility will need major maintenance to be carried-out in order to meet the requirements of the proposed change in use.
“The work will include provision of laboratories, work stations, production areas and seminar rooms; audio visual centre, high speed internet connectivity, exhibition areas and offices,” reads the proposal note for the development.
These developments will be done through the refurbishment and maintenance of the main building, workshop, and ablution block, gate house, parking area, grounds, and access control and security service.
“There will be minimal modifications to the structure as it stands. The project is estimated to cost approximately P50, 000, 000,” says the report. In this regard, it is said, the initial scope of the OP facility will be modified to accommodate the envisaged digital technology research and development hub.
With funds needed to improve the building, OP has requested that; “the 2020/21 annual budget provision for Orapa House will need to be increased by P37,500,000 from P2,500,000 to P40,000,000 to kick start the maintenance works.” Funds will be sourced from the projects that have been delayed due to Covid-19 protocols during the 2020/21 financial year.
The building has been a thorny issue for government for years. Initially, OP was expected to move there but the move never materialised. At one point it was a question of whether the Office of the President and the Ministry of Finance and Economic Development were planning to override a decision by Parliament which rejected the proposal to buy Orapa House under the belief that government may be buying its own property. The building was to be bought at a negotiated cost of P79 million.
Again in 2012, Government had wanted to buy Orapa House for a negotiated P79m but the Finance and Estimates Committee of Parliament had rejected the request because of the inconsistencies realised in the supporting documents of the proposed procurement. The valuation of the building was put at P74 million.
The Ministry of Lands and Housing had initially offered De Beers P73, 000,000 as the purchase price. However, De Beers countered with P85, 000,000. On negotiation and converging of the minds, the selling price was finally agreed at P79, 000,000.
Auditor General, Pulane Letebele, has expressed discontentment at the worrying and deteriorating state of brigades in the country.
In an audit inspection which was carried out at Tshwaragano Brigade in Gabane, a number of observations showed weaknesses and shortcomings in the conduct of the financial affairs of the institution.
According to Letebele’s report, former students of the brigade had been engaged to carry out maintenance works on the school premises, comprising of painting, tiling, plumbing and electrical works, which covered the period from July 2017 to June 2018.
Although the agreed maintenance period had elapsed, the works had not been completed because of unavailability of funds and this situation had persisted up till the time of inspection in November 2019.
Auditor General says arrangements should have been made in time for funds to be available to complete these relatively minor works even before the works commenced.
Various contractors had been engaged for clearing the bush and for the supply of concrete stones, pit and river sand and hiring equipment for digging the trench towards the construction of an auto mechanics workshop, the report said.
It stated that the cost of services and supplies provided totalled P117 949.80. However, despite the services and the supplies having been paid for, the construction works had not commenced for a long period afterwards, resulting in the trench filling back in.
The audit inquiries had not elicited satisfactory responses as both the institution and the Ministry had not accepted the responsibility for the project, although orders for the provision for the supplies had been made. For their part, the Ministry had stated that they had sub warranted funds for the purchase of porta cabins.
Letebele indicated that it is therefore confusing that a project which is critical to the functioning of an institution such as this one would commence without a well-defined plan.
Furthermore, the accounting and maintenance of records for the supplies items were not of the standard prescribed by the Supplies Regulations and Procedures in that the supplies ledger cards, the main accounting records for Government assets, were not properly maintained for the recording of receipts and issues.
This had resulted in significant discrepancies between physical and ledger balances, while in other instances the supplies items had not been recorded at all.
The report says 24 of the 91 new computers found in the computer laboratory at Kumakwane ABC campus were not recorded anywhere, as were the other computers in the storeroom which could not be counted due to the disorderly storage conditions.
The institution had entered into a contract agreement with a security company for the provision of security services at Tshwaragano Brigade, ABC and Horticulture campuses at Kumakwane for a 2-year period which ended in June 2018, WeekendPost learnt.
After the contract expired in June 2018, an extension was granted till the 30th September 2018. Since then, there has been no security service coverage for the institution to-date. According to Auditor General, in the face of prevailing crimes, it is of paramount importance that government properties be protected by provision of security services at all times.
At Tlokweng Brigade, it was noted that the kitchen staff were working under difficult conditions as the kitchen facilities and equipment, such as the cold room, tilting pot, food warmers and solar power for hot water were dysfunctional. The kitchen roof was leaking and men’s restrooms was not working. All these need to be brought to a reasonable and functional state of repair.
The kitchen staff should use a purpose-designed Rations Ledger for the recording of receipts and issues of foodstuffs to reflect the usage of those items. As far back as 2014 the Department of Buildings and Engineering Services had found that the house occupied by the bursar was uninhabitable on account of structural defects, the report said.
A site visit during the audit had established that the house was indeed unfit for occupation as there were cracks on the walls, power switches were not working and the roof was leaking. On a sadder note, there were a number of finished items of clothing, such as dresses, shirts, and jackets from students’ practical exercises from the Fashion Design Textiles Workshop.
Auditor General shared her take on this, saying: “I have not been able to ascertain the policy on the disposal of products from these practicals. A trace of 103 green acid-proof overalls which had been purchased in August 2018 had indicated that there was no record of these items having been recorded or issued, nor were they available in stock. I was not able to obtain any explanation for this situation.”
Kgatleng brigade was also audited and inspected by Auditor General who observed that the brigade has 26 institutional houses at Bokaa, both old campus and new campus. Some of these houses are very old and dilapidated, with two declared uninhabitable. The condition of the houses is a clear indication of lack of care and maintenance of these properties.
At the time of the audit, there was no contractor engaged for the provision of security guard services at the new campus, after expiry of the previous one in July 2019. It is hoped that steps would be taken to safeguard the security of the premises and government properties against any acts of hooliganism.
In August 2019, there was a break-in at the electrical and at the plumbing maintenance workshops and a number of high value items, such as drilling machines, bolt cutters, spanners and cables, were stolen. The break-in and theft were reported to the police.
“However, at the time of writing this report I was not aware of the outcome of the police investigation, nor of any loss report submitted in terms of the Supplies Regulations and Procedures,” Letebele said.