The President of the court of appeal, Ian Kirby and the Attorney general on Friday this week refused to be drawn into discussing the President’s prerogative rights in court during a case that involves the President and the Botswana Federation of Public Service Unions (BOFEPUSU).
Kirby has further revealed that the judgement on the matter may be delayed as he could not tell whether it would be ready when other judgments of the January court of appeal session are delivered on February 5th.
Kirby was leading a panel of three judges in a matter in which BOFEPUSU is challenging the High Court order that turned down their urgent application matter regarding President Ian Khama’s decision to announce Public Service salary increment during last year’s salary negotiation process.
BOFEPUSU’s attorney, advocate Alec Freunt of South Africa wanted the court to make a pronouncement on the powers of the President in regards to Public service salary and conditions of service adjustments. Responding to that, Kirby said he would need a panel of five judges to do so as the matter touches on the President’s prerogative powers and the constitution.
Meanwhile the Attorney general, represented by David Moloise refused to go into the merits of the case and argued that, he was only ready to contend against the appeal that was before the court, that is, the urgency matter. However in his filed heads of argument, Moloise suggests that the President had the power to announce the four percent salary increment in March, 2014 during a kgotla meeting because the National Bargaining Council had not yet begun negotiations yet and that the rules governing the negotiations had also not been signed.
At the time of the pronouncement which was effected in April, 2014 there was a dispute over certain procedures and the Bargaining Council had reached a stale mate and called for a few weeks of breathing period.
However according to the State lawyer, the President considered that negotiations could go for a long time or stretch to another year and the civil service were burdened by inflation and could suffer as a result.
Moloise further suggested that the President being the head of state not only had the burden of running the nation but as a matter of “Public Policy”, had to perform a duty to act in the public interest as it was necessary.
But the Union contended that by so doing the President breached the government’s duty of bargaining in good faith and more so that when the pronouncement was made it was made clear that the salary increment would not go beyond the four percent due to budgetary constraints.
Nonetheless, Moloise would contend that there is no actual proof that the statements would have in any way influenced the process as the union had the onus of putting their argument and convincing the bargaining Council that they have a case for the result they seek.
He further mentioned in his filed document that the President is covered by law to act in the manner that he did.
According to Moloise, the council and more particular the Procedures for Meetings and Negotiations are not legally binding on the President especially when read with section 12 of the Public Service Act and therefore Section 12 of the Public Service Act provides that “The exercise of any powers or the performance of any duties under this act shall be subjected to the general discretion of the President as the President may consider necessary.”
In the absence of anything that suggests a deviation from the discretionary power of the said section, the state believes that it should be therefore viewed as un-surped and its discretion superior and unfettered. The Attorney General therefore requested that in interpreting the law, judges must not “usurp Parliamentary legislation functions.”
The constitution divides the state in to three wheels of power, the executive, legislature and the judiciary. The legislature’s main function is to enact laws whist the primary duty of the executive is to take charge of the conduct of the state of affairs and the judiciary adjudicates on disputes that may arise and to have a final word on the interpretation of the law.
Despite being hailed and still regarded as a hero who saved many lives through his decision to crash the BF5 fighter Jet around the national stadium on the eve of the 2018 BDF day, the deceased Pilot, Major Clifford Manyuni’s actions were treated as a letdown within the army, especially by his master-Commander of the Air Arm, Major General Innocent Phatshwane.
Manyuni’s master says he was utterly disappointed with his Pilot’s failure to perform “simple basics.”
Manyuni was regarded as a hero through social media for his ‘colourful exploits’, but Phatshwane who recently retired as the Air Arm Commander, revealed to WeekendPost in an exclusive interview that while he appreciated Batswana’s outpouring of emotions and love towards his departed Pilot, he strongly felt let down by the Pilot “because there was nothing wrong with that Fighter Jet and Manyuni did not report any problem either.”
The deceased Pilot, Manyuni was known within the army to be an upwardly mobile aviator and in particular an air power proponent.
“I was hurt and very disappointed because nobody knows why he decided to crash a well-functioning aircraft,” stated Phatshwane – a veteran pilot with over 40 years of experience under the Air Arm unit.
Phatshwane went on to express shock at Manyuni’s flagrant disregard for the rules of the game, “they were in a formation if you recall well and the guiding principle in that set-up is that if you have any problem, you immediately report to the formation team leader and signal a break-away from the formation.
Manyuni disregarded all these basic rules, not even to report to anybody-team members or even the barracks,” revealed Phatshwane when engaged on the much-publicised 2018 incident that took the life of a Rakops-born Pilot of BDF Class 27 of 2003/2004.
Phatshwane quickly dismisses the suggestion that perhaps the Fighter Jet could have been faulty, “the reasons why I am saying I was disappointed is that the aircraft was also in good condition and well-functioning. It was in our best interest to know what could have caused the accident and we launched a wholesale post-accident investigation which revealed that everything in the structure was working perfectly well,” he stated.
Phatshwane continued: “we thoroughly assessed the condition of the engine of the aircraft as well as the safety measures-especially the ejection seat which is the Pilot’s best safety companion under any life-threatening situation. All were perfectly functional.”
In aircrafts, an ejection seat or ejector seat is a system designed to rescue the pilot or other crew of an aircraft in an emergency. The seat is propelled out of the aircraft by an explosive charge or rocket motor, carrying the pilot with it.”
Manyuni knew about all these safety measures and had checked their functionality prior to using the Aircraft as is routine practice, according to Phatshwane. Could Manyuni have been going through emotional distress of some sort? Phatshwane says while he may never really know about that, what he can say is that there are laid out procedures in aviation guiding instances of emotional instability which Manyuni also knew about.
“We don’t allow or condone emotionally or physically unfit Pilots to take charge of an aircraft. If a Pilot feels unfit, he reports and requests to be excused. We will subsequently shift the task to another Pilot. We do this because we know the risks of leaving an unfit pilot to fly an aircraft,” says Phatshwane.
Despite having happened a day before the BDF day, Phatshwane says the BDF day mishap did not really affect the BDF day preparations, although it emotionally distracted Manyuni’s flying formation squad a bit, having seen him break away from the formation to the stone-hearted ground. The team soldiered on and immediately reported back to base for advice and way forward, according to Phatshwane.
Sharing the details of the ordeal and his Pilots’ experiences, Phatshwane said: “they (pilots) were in distress, who wouldn’t? They were especially hurt by the deceased‘s lack of communication. I immediately called a chaplain to attend to their emotional needs.
He came and offered them counselling. But soldiers don’t cry, they immediately accepted that a warrior has been called, wiped off their tears and instantly reported back for duty. I am sure you saw them performing miracles the following day at the BDF day as arranged.”
Despite the matter having attracted wide publicity, the BDF kept the crash details a distance away from the public, a move that Phatshwane felt was not in the best interest of the army and public.
“The incident attracted overwhelming public attention. Not only that, there were some misconceptions attached to the incident and I thought it was upon the BDF to come out and address those for the benefit of the public and army’s reputation,” he said.
One disturbing narrative linked to the incident was that Manyuni heroically wrestled the ‘faulty’ aircraft away from the endangered public to die alone, a narrative which Phatshwane disputes as just people’s imaginations. “Like I said the Aircraft was functioning perfectly,” he responded.
A close family member has hinted that the traumatised Manyuni family, at the time of their son’s tragedy, strongly accused the BDF ‘of killing their son’. Phatshwane admits to this development, emphasising that “Manyuni’s mother was visibly and understandably in inconsolable pain when she uttered those words”.
Phatshwane was the one who had to travel to Rakops through the Directorate of Intelligence Services (DIS) aircraft to deliver the sad news to the family but says he found the family already in the know, through social media. At the time of his death, Manyuni was survived by both parents, two brothers, a sister, fiancée and one child. He was buried in Rakops in an emotionally-charged burial. Like his remains, the BDF fighter jets have been permanently rested.
A matter in which former President Lt Gen Ian Khama had brought before Broadhurst Police Station in Gaborone, requesting the State to charge Directorate on Corruption and Economic Crime (DCEC) lead investigator, Jako Hubona and others with perjury has been committed to Headquarters because it involves “elders.”
Broadhurst Police Station Commander, Obusitswe Lokae, told this publication this week that the case in its nature is high profile so the matter has been allocated to his Officer Commanding No.3 District who then reported to the Divisional Commander who then sort to commit it to Police Headquarters.