The constitution of Botswana allows everyone to freely express themselves in criticising President Ian Khama and his administration, Advocate Sidney Pilane has said.
Advocate Pilane says a teacher who was sacked from his employment for criticising President Khama’s administration had done nothing wrong. Goitsemodimo Dintwe a former teacher at Radisele Junior Secondary School was fired in 2011. His dismissal, which he is challenging before the courts followed the publication of his opinion piece by a local newspaper on Khama’s administration in May 2011.
The opinion was published in 2011 following the historic public sector strike. Dintwe was summoned for a disciplinary hearing in November and was later that year fired from his employment. Advocate Pilane told a panel of five Court of Appeal Judges that the article titled ‘Khama’s administration style is questionable’ cannot be equated to a political statement as the employer has implied.
The published opinion piece read in part, “At party level after Kanye congress, BDP members went in numbers to vote for people whom they trusted to run the party. At that time the party was rigged by internal fighting and to that effect there were two warring factions (Barata-Phathi led by Daniel Kwelagobe and the A-Team led by Mompati Merafhe).
The democrats gave people of their choice the mandate to run the organisation. Contrary to the will of the people Khama fingerpicked a pack of his cronies to sit in the BDP central committee to run the affairs of the party. Motswaledi the then democratically elected Secretary General for BDP Central Committee sought clarity on how things were done by the leader of his organisation, but things turned nasty for him and he was expelled from the party.”
Pilane argued that there is no how the author of the article could be said to have been in contradiction of Section 34 (a) of Public Service Act. He said President Ian Khama was being criticised as the central face of government and there is nothing that is contradicting the PSA. “There is nothing wrong with the article because we are a democratic country.
This is our government and our president and we are entitled to criticise government of the day. It is wrong to suggest that what my client stated in the article is in contradiction with Section 34 (a) of the Public Service Act just because the article in part mentions Botswana Democratic Party (BDP). My client was commenting on a matter of general interest,” he stated.
Section 34 (a) of PSA states that a public servant “shall not, without the express written permission the Permanent Secretary to the President, act as the editor of a newspaper (not being a publication of Government), nor take part directly or indirectly in the management thereof, nor publish in any manner anything which may be reasonably regarded as advocating for or against any political party or candidate but he or she may publish in his or her own name other matter relating to subjects of general interest”.
Pilane argued that the client wherever he speaks about the BDP is not in favour of the BDP or against the party.
He said as Batswana “we can debate politics without advocating for or against a political party or a candidate. The article should not be read in part but in totality. If he criticises the President, he is not criticising the BDP. This is not the BDP government- it is my government,” said Advocate Pilane.
Counsel Matlhogonolo Phuthego from the Directorate of Public Prosecution said the article was advocating for BDP against Khama. “A reasonable person reading the article would come to the conclusion that the person was advocating for BDP. His fall was for advocating for BDP and saying Khama is destroying the party,” said Phuthego.
Advocate Pilane asked the court to determine whether a public servant can make a political statement criticising the employer. He said even if Freedom of Expression is not absolute Section 34 (a) of the PSA should be deemed unconstitutional as it contradicts the Constitution of the country.