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BONELA cautions on Executive Powers

The court of Appeal in Gaborone is expected to pronounce whether the country’s President has the power to dictate the kind of health care and medication to be given to foreign prisoners or not.


In a case in which the government was appealing a recent ruling by the High court which was forcing it to give HIV positive prisoners High Active Anti Retroviral Treatment (HAART), the defendant requested the court to uphold that the President’s directive was invalid.


President Khama had previously issued a directive in which he suggested that foreign prisoners have to be given health care treatment for “ailments other than AIDS.” The Directive was used by the Ministry of Health to deny foreign prisoners HAART and the Botswana Network on Law and AIDS, BONELA and some Zimbabwean men are of the view that such a decision was unlawful and detrimental to basic human rights of the prisoners.


In the High court the state contended that the refusal to grant the foreign prisoners treatment was lawful because it was authorised by the terms of a Presidential Directive. However BONELA argued that the Directive was never produced before court.


“The High court correctly recorded that the Directive itself had not been placed before the court. It was only presented with a savingram that purports to record the terms of the proposed Directive.” BONELA had noted and suggested that the  starting point is thus to determine the source of the President’s purported powers to prescribe what medical services the government will provide and to whom.


In fact the non-governmental organisation submitted before court that there is no empowering provision that underpins the President’s decision to issue the directive.


“Nowhere does the Prison Act, the Old Public Health Act or the 2013 Public Health Act Authorise the President to issue directives concerning medical treatment or the denial of it. The Appellants have further offered no evidence or no delegation to this effect. To the contrary the Prison’s Act requires all prisoners to be provided with adequate healthcare services and permits no discrimination on the basis of citizenship,” BONELA further presented their arguments in court.


The Botswana Prison’s Act requires all prisoners to be provided with adequate health services. It admits of no discrimination among them. But Section 47(1) of the constitution according to BONELA, vests executive power in the President and authorises him to exercise those powers subject to the provisions of the constitution.

But executive powers do not include a unilateral power to supplement or amend the provisions of validly enacted legislation as this would fundamentally undermine the constitutionally ordained separation of powers and the legislative powers conferred on Parliament section 86 of the constitution.


The government attorneys had argued that the President directive was motivated by the National Policy and National Interest. However BONELA insisted that the government could not explain where the President derived his powers because he does not in law, posses such powers.


“Even assuming that the President had power to issue the Directive, we submit that he could not issue it in the face of and contrary to legislation expressly providing for all prisoners to be provided with adequate health care, including HIV positive foreign prisoners. That is because his executive powers do not permit him to contravene or circumvent, by fiat, legislation provision imposed by Parliament.”


BONELA therefore requested that the Directive be declared invalid and set aside as the high court had done when it judged the matter in favour of the prisoners a few months back. The High Court declared that the refusal to enrol HIV positive foreign prisoners who meet the treatment criteria on HAART was a breach of the duty owed to them by government, to be provided with basic health care services.


The contention was that the decision to refuse to enrol HIV positive prisoners on HAART and the policy underlying that refusal are in breach of the state’s duty under both the common law and Prison’s Act to provide adequate healthcare to prisoners without discrimination.


“We submit that the High Court’s order in this regard was plainly correct. At both common law and in terms of Prison’s Act, the state has a duty to provide adequate medical treatment to all prisoners without discrimination.

There is by contrast no legal provision that permits withholding treatment to foreign prisoners,” BONELA further contended.

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Khan: Boko, Masisi are fake politicians

18th January 2021
Masisi & Boko

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.

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Ookeditse rejects lobby for BPF top post

18th January 2021
LAWRENCE-OOKEDITSE

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.

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BDP cancels MPs retreat

18th January 2021
President Masisi

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.

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