Deputy President of Botswana Federation of Public Sector Unions (BOFEPUSU), Obeile Molamu has challenged President Dr Mokgweetsi Masisi to honour his promise to resuscitate the Public Service Bargaining Council (PSBC). When Dr Masisi took over as president he promised to revive the PSBC and even put a timeline to it, that it would be up and running by the end of September 2018.
“Even as we celebrate this day, this promise has not been fulfilled. We hold you against your word your Excellency and demand that the PSBC should be up and running as early as yesterday,” said Molamu during the May Day commemoration. The commemoration, held under the theme Building A Better Botswana: Workers’ Meaningful Participation In Social Justice And Democracy, was seen as historic by some because it was a joint event between Botswana Federation of Trade Unions (BFTU) and its offshoot, BOFEPUSU.
Both unions had never seen eye to eye since the inception of the latter in 2012.
While commending government for a salary adjustment following an agreement of 6 percent and 10 percent for the two financial years 2019/20, 2020/21 respectively, the unionist said, “We however would like to emphasise that there is a dire and urgent need for PSBC as an institution so that such negotiations are held in legally established institutions rather than by temporary and makeshift structures.” Molamu also noted that even though some progress had been made with respect to making amendments to the labour laws with the assistance of experts from the International Labour Organisation (ILO) there was still a lot to be done.
He said that, although meetings have been held and the Acts to be amended agreed upon, “…government’s attitude especially as exhibited by the Directorate of Public Service Management (DPSM) has been quite worrisome. “At some point DPSM held parties at ransom by refusing that the Public Service Act be part of the Acts to be reviewed through this process”. He said Government has also not been forthcoming in aligning the list of essential service to the ILO framework definition of essential service and also in allowing the Prisons Service to unionise.
“Up until today, the government’s position on the two issues is not clear,” he complained. Molamu also called upon government to speedily adopt the Performance Management Delivery Unit made at great financial cost by a Malaysian consultancy (PEMANDU). Among other things, the report recommended an increase of 20 percent for public servants on grade A and B; 10 percent for grade C and D; and 15 percent for grade E and F. The union leader complained that while negotiations on the PEMANDU report were ongoing, government made changes in the pay structure of the armed forces that resulted in the improvement of salaries and structures of the armed forces.
“We are quite alive to the fact that the armed forces are not within the bargaining unit of the trade unions, however, government should be aware of the fact that the courts have held that changing the conditions of service of those outside the bargaining unit while there are ongoing negotiations on similar conditions of work does not only prejudice the negotiation process but also is pre-emptive to the process,” said the union leader. “This is the same conduct for which we have condemned during the Khama administration,” declared Molamu.
He did not even spare politicians whose actions of adjusting their own salaries he finds totally repugnant and unethical. Members of Parliament (MPs), Councillors and Dikgosi recently got a salary adjustment. “There is no doubt that it is unethical as it amounts to a direct conflict of interest. “As BOFEPUSU, we take this very seriously and call for a situation in which an independent body is established to consider the remuneration of the political officers. “We are therefore worried that inspite of the fact that government was reluctant in going beyond the 6 percent and 10 percent increment for the public service under the pretext that any more percentages of increment would balloon the budget deficit beyond the allowed 4 percent deficit of the total GDP, in increasing the salaries of politicians, this principle seems to have been ignored.
“This then puts to question the honesty and sincerity of government during the negotiation process,” he complained. Molamu lamented the absence of organised industrial councils in the private sector. He called upon government to intervene and ensure that different sectors in the private sector have Industrial Councils. “The starting point however is to amend the Trade Dispute Act to ease up the establishment of such. Failure by government will always leave trade unions and employees in the private sector hamstrung and toothless. “This is yet another test that we put before President Masisi if ever he has the welfare of Batswana at heart,” Molamu said.
The BOFEPUSU deputy president, cried out to President Dr Masisi for private sector workers in Chinese restaurants and shops, filling stations, media houses, private security services, other businesses whom he said got slave wages. He called upon government to introduce a minimum wage. “Failure to do so would indicate lack of commitment to protect Batswana from these profit oriented monopolistic capitalists,” he said lamenting that, although labour laws exist to protect the workers, some companies intimidate their workers and prevent them from unionising or joining existing unions due to the absence of labour inspection institutions. He also blamed the existence of weak enforcement of the existing laws as per the requirement of the ILO convention on labour inspections as another reason for the easy intimidation of workers.
Lamenting widespread corruption and the syphoning of the Pension Fund money, Molamu called upon Dr Masisi to act. He is not happy that workers are not protected when there are retrenchments. “When a company closes on account of non- performance or liquidation, it is not bound by the law to disclose its performance in terms of availing its books of accounts to the employees,” he said adding that there is regrettably no provision for a retrenchment package in the law. In response, President Masisi promised that with regard to the PSBC, he will act as swiftly as possible to ensure that the institution is resuscitated.
Botswana Democratic Party (BDP) Members of Parliament have called for calm and a clean campaign ahead of the party’s Special Congress in Kang next week Friday. The MPs raised the concerns last week during the party’s Parliamentary Caucus meetings.
President Dr. Mokgweetsi Masisi will become the first BDP leader to be challenged for the presidency of the party at this Special Congress.
He will defend his seat against a former member of his cabinet, Dr. Pelonomi Venson-Moitoi. Campaigns for the presidency have been marred by controversy. There have been accusations and counter-accusations of use of underhand tactics to lure voters.
Dr. Masisi’s camp has been accused of using both state and party resources to advance their campaign while Dr. Venson-Moitoi’s team is accused of mudslinging, ignoring party processes and procedures and attacking the president.
Some key members are known to be supporting Dr. Venson-Moitoi among them Central Committee member and MP for Tati East Samson Guma Moyo, who has since fled the country on claims that he is a target of an assassination plot. During the caucus meeting MPs expressed concern over the dirty campaigns that both camps have engaged in. According to sources who attended both last week and this week’s Tuesday meetings, the MPs want a peaceful Kang congress that would also unite the party.
“We want both teams to be humble as they get to the final lap of campaign. Things have not been going well and this has divided us even more. So, we believe we have to air our concerns as MPs because we are the ones more senior when it comes to delegates. We want to come back from Kang a united force,” said one MP.
Another MP stated that “the issue here is not about who is powerful than who, but it is about the democratic dispensation within the party which we have for years preached (that) we stand for. This is the time to lead by example that indeed we are a democratic organisation.”
The MPs pointed out that it is not wrong for Vice President and BDP Chairman Slumber Tsogwane to support Dr. Masisi as it has always been the party tradition that the president and his second in command stick to each other even during central committee elections.
Government Whip (BDP) Liakat Kablay confirmed that the MPs have called for calm as the campaigns get into the last lap before the congress. Kablay said the MPs spoke with one voice as concerned leaders within the party. He stated that they have put to rest the issue of Tsogwane supporting the president as party chairman and former president Dr. Ian Khama supporting Dr. Venson-Moitoi. According to Kablay they have concluded that this is nothing new and should not be used by either camp to attack the other.
“This is why you will hear people saying BDP MPs would resign. I can assure you that no MP would dump the BDP after the Kang congress and we are not going to split. “Of course, we have our differences for now but that is not happening for the first time and BDP is not going for internal elections for the first time.
“We have been on this road before even during our National Congresses where presidents endorsed their deputies there were tensions. Even during the Festus Mogae era and Dr. Khama’s times,” said Kablay adding that they have urged both camps to accept the results and work together towards building a strong BDP ahead of this year’s general elections.
Kablay who is also MP for Letlhakeng-Lephephe rubbished claims that BDP Women’s Wing Chairperson Dorcas Makgato was behind the postponement of the Women’s Wing congress. He revealed that it was the Parliamentary Caucus that pursued her to postpone because of logistical issues such as accommodation.
Members of Parliament across the aisle have expressed concern at the possible bad image that the country could attract due to the strained relationship between President Dr Mokgweetsi Masisi and his predecessor. Since last year Dr. Masisi and former president Dr. Ian Khama have been entangled in a polarised relationship that has divided the ruling Botswana Democratic Party (BDP).
Debating the budget for Ministry of International Affairs and Cooperation this week, MPs expressed concern that the situation has escalated and would possibly affect the country’s image in the international arena. MP for Francistown South Wynter Mmolotsi said while they appreciate that the current president is visiting other countries and participating in international meetings it is worrisome that the relationship between Dr. Masisi and Khama is strained. The legislator stated that Dr. Khama’s failure to attend regional and international forums was negatively affecting the country. He however expressed worry that even though Dr. Masisi is doing a good job sometimes his statements are likely to annoy some countries especially those that Botswana relies on.
“He might be trying to mend relations but some of his public utterances are a cause for concern. The president must be careful what he says and to whom he says it to. “The recent issue about wildlife, I think the president should not have said the words he said. We do not want to find ourselves fighting with other countries especially western countries. “He might have said the words with good intentions but we always have to be careful and choose correct and diplomatic words. The way he approached the issue it is like we do not care as a country,” said Mmolotsi adding that western countries have got nothing to lose but Botswana as a small economy has a lot to lose.
He told Parliament that the fighting within the BDP is not good for the country. The former president would say something and then Dr. Masisi would say another, pointed out Mmolotsi. He called on the International Affairs and Cooperation Minister Dr. Unity Dow to engage the duo to safeguard the country’s image. MP for Gaborone Central Dr. Phenyo Butale said the disagreement between the former and current presidents should not be allowed to harm the country. He stated that the interest of the country has to be protected.
He challenged the consistency of the country’s foreign policy. He said the government used to “say something about the Dalai Lama but today we are saying a different story. “There is need for us to be consistent. We cannot have a situation where two leaders are competing and saying bad things in the public space which have the potential of denting our image.” According to Dr. Butale the country has always been cautious of what it says or does because of the delicacy of its economy. “We do not want our country to be taken to the dogs by our two leaders because we do not know what exactly happened between them,” said Dr. Butale.
The MP said while Dr. Masisi is representing the country well at international level, it is important to apply a robust approach about multilateral relations. He said there is need for an aggressive approach in pursuing the interests of the country. MP for Francistown East Honest Buti Billy said it is costing the country to see the situation between Dr. Masisi and his predecessor. “As an individual, one might think the matter does not concern them but it does. “People out there see it differently. We are known to be a peace-loving nation but what is currently happening is telling a different story and the world is watching,” Billy told Parliament.
He said the duo has to be serious and sort out their differences. He wondered what people will tell their grandchildren about the current situation if it is not attended to. “I know people do not want us to talk about this issue, but we have to talk about it because we cannot ignore it anymore,” he said.
Minister Dr. Dow said at ministry level regarding the relationship between the two leaders is to ask the question ‘what you do is it for the country or is personal?’ She told Parliament that as the ministry they will only celebrate and appreciate those who do good for the country and not for personal gain. She said they however do not control what people speak at their individual level.
President Dr. Mokgweetsi Masisi has promised that the time to tell the nation the whole truth pertaining to the standoff between his government and his predecessor Lt. Gen. Dr. Ian Khama will come and “is not too far”.
Masisi was responding to a question on Tuesday evening during a press conference he addressed at the airport on his return from the African Union general assembly that was held in Addis Ababa, Ethiopia. Masisi was asked whether it was by design or a coincidence that Carter Morupisi, the permanent secretary to the president engages in a heated exchage of words with Khama every time Masisi is out of the country. To this, Masisi said he has just arrived and has not heard of anything during his absence about Morupisi and Khama exchanging heated words.
But then he added: “But you know to address the issue more broadly, time will come, and it is not too far where we need to settle all this. “Settling it is just telling the whole truth and nothing else but the truth and sharing with you the public of Botswana the whole truth so that we can decide on who is and what you know”. Among some of the biggest challenges he said is the interpretation of the law of the benefits given to retired presidents. For example, what the Act means when it says that a former president is entitled to use air transportation on a case by case basis as approved by the president.
“We need help with that. I will tell you what I interpret that to mean as president and others can interpret it in other ways and everything else will follow. “Le gone ga go tsewa ga di maids can be fully explained in a non-emotional manner so that we can finish with all those things and get on the business of finding jobs for you and other citizens. That should be what we are concerned about”.
African Peer Review Mechanism
As to what informed Botswana’s accession to the African Peer Review Mechanism (APRM) which former President Festus Mogae had been against - Masisi said he could not answer for Mogae because at that time he was not even in government.
However, he said his government was motivated by the fact that Botswana’s record as demonstrated by the indicators and public pledges of commitment to good governance “had no parallel in Africa”. He emphasised that Botswana is a member of the African Union and that the African Peer Review Mechanism offers members an opportunity to share their developmental challenges and opportunities and to be reviewed by peers.
“I do not see why if we are a responsible government and member of the AU, we cannot offer that of ourselves. It should be mutually beneficial of-course there maybe teething problems, but you do not let the problems of the strategy deny you the opportunity of exploring that opportunity”. He said by so doing Botswana is also helping to develop Africa just as Africa is helping to develop us. “There are some extremely good people in countries that we may assume to be far less privileged than our own, extremely smart people. So Botswana must be open to become part of the continent,” Dr. Masisi said.
AU and SADC
On Zimbabwe Dr. Masisi said the AU and SADC are not trying to interfere in Zimbabwe but are trying to give support to the country to be orderly and peaceful. But in order to do so, he said one needs to fully appreciate the historical dynamics of Zimbabwe. “It is a very complex situation in Zimbabwe, it is not easy and the call that we made which is the view of Botswana as, difficult as it might be, is that there must be a full respect for the rule of law, there must be a commitment to peace, commitment to protecting the rights (of citizens) as enshrined in Zimbabwe constitution”.
He said they engaged President Emerson Mnangagwa in Addis Ababa and that he gave them a progress report of the loss of lives; destruction of property; rape; beatings and shootings that happened during the protests in Zimbabwe.
He said they took comfort in Mnangagwa’s assurance that his government had enlisted faith-based organisations to receive reports of rape, beating and shooting allegedly committed by police and monitor them.
Lift sanctions on Zimbabwe
Masisi said that SADC was preparing a communiqué, which Botswana fully ascribes to, urging the rest of the world to lift sanctions on Zimbabwe. “If you are denied access to credit, participation in the finance system of the world, it is extremely difficult to operate a model economy.
“You cannot pay for your imports. You would not have ability to trade with others in a manner that brings confidence to them. You will not be able to pay, to buy machinery, technology and then hold them to account as all of us are responsible for our behaviours. “It is only fair for Zimbabwe that sanctions get lifted and I support that entirely because a prosperous and stable Zimbabwe is good for Botswana, because we too get affected”.
Dr. Masisi recalled that in the past Botswana citizens sent their children to study in Zimbabwean schools at very affordable prices. “We got extremely good education that is good for us, that is trading education, but you know because of the hardships, those are limited, you cannot do it as easily as before,” he said.
Umbrella for Democratic Change President, Duma Boko has sent a chilling warning to Botrswana Democratic Party, that they know who the purveyors of corruption are and that their “time to eat is up”. Addressing the media on Monday in Gaborone Boko said that the corruption and abuse seen across all sectors of government was and is still a function of institutions deliberately designed to preclude any robust oversight and probing accountability.
Accountability, he said, is about a detailed account of the real costs and benefits of any trip or outing by the President and organs of the state to give the nation an “accurate visual and aural understanding of what actual value the nation derives from all these adventures”. He dismissed all the existing institutions as either, weak and tepid in the execution of their mandates or destitute of any ounce of credibility.
Turning to the National Petroleum Fund saga, Boko said these problems and challenges cannot be addressed by way of changing the faces of Presidents while retaining the same system and organisation that brought these problems to the nation. “We know who they are and we will smoke them out. Their time to eat is up,” he warned. He said the ascendance of Dr. Mokgweetsi Masisi of the Botswana Democratic Party to the high office of President of Botswana is but a “frail and fitful palliative” that can only “mollify but not uproot” the causes of all these maladies.
The UDC leader said this was so because all the leaders of BDP, past and present, are complicit in the mess “we have and are culpable without exception”. Boko pointed out that the current problems in the country require systemic solutions with a comprehensive forensic audit of all government institutions to determine what happened and how the controls and processes failed.
However he said the challenges that face the country have been troubling the nation for decades since independence. The country still groans under high rate of unemployment and lack of opportunities for its people. “The health care system is most appalling and deplorable; marked and defined by a demoralised workforce, acute shortages of essential and basic medication as well as chronic inefficiency and wastage.
“Our education system continues to deteriorate at an alarming pace, spelling doom and disaster for many young people and their families, and wreaking havoc on the whole nation. Corruption and wanton abuse of office have run amok in our country”. Boko said that the UDC is ready and up to the task of liberating this country from the stranglehold of predatory and collusive dealings between the political elites and their handlers in the business community.
He explained that UDC is currently in the process of dealing with all lingering internal matters especially ward allocations and the few constituencies affected by the BMD matter. “All these will be resolved by the end of February. We demand a review of our constitution to correct the aberrations that have resulted in the current mess the country is in”. Boko said they promise to create 100 000 decent jobs in their first 12 months in office.
Botswana is likely to sign the African Continental Free Trade Agreement (AcFTA) at the next African Union Assembly of Heads of State and Government scheduled for 11th to 13th February 2019 in Addis Ababa, Ethiopia.
However, whether we are likely to sign will depend on what Cabinet will advise President Dr. Mokgweetsi Masisi. This is according to Director, Department of International Trade in the Ministry of Investment, Trade and Industry, Gideon Mmolawa.He told Botswana Guardian that, “as officials” and having resolved issues of concern, “we have recommended that Botswana sign”. Botswana could have signed the Agreement during the December 2018 meeting of African Ministers of Trade but was held back by some outstanding issues.
Asked what these outstanding issues were, Mmolawa said they had to do with finalisation of modalities relating to the threshold of sensitive and exclusion products. “Reaching consensus on these would pave the way for operationalising the Agreement and also demonstrate certainty of the value proposition for Botswana,” he said.The Continental Free Trade Agreement provides Botswana access to the African market estimated at 1.6 billion people in 55 countries.This means a wider and increased market access for Botswana exports; among which are live animals, beef, salt, vaccines for veterinary medicine, minerals and leather products.
The Agreement also diversifies the current export markets and reduces our reliance on traditional markets, said Mmolawa in as much as it gives Botswana’s private enterprises access to inputs at competitive prices. Other benefits of the Agreement include increased opportunities for investment attraction and growth in the services sector across borders.
However, access to markets is one side of the coin. The flipside, which will ensure that the country exploits the free trade agreement, requires coming up with programmes to improve output and efficiencies of local businesses.Mmolawa is confident that Government especially through the Botswana Investment and Trade Centre has placed the country on a pedestal to compete. He cites the implementation of the Botswana Exporter Development Programme as one such programme as a means to this end. The BEDP targets local enterprises who wish to export by developing export marketing plans, capacitating on quality management systems and improvement of productivity, and country market surveys for export development. He said local enterprises are enrolled following diagnostic assessments with a view to determining their export readiness and also to develop interventions that are appropriate.
Awareness creation workshops on signed Agreements for example, trainings on market access opportunities including trading requirements and regulations are also held for local businesses to position them to compete. Meanwhile, Botswana signed the Tripartite Free Trade Area (TFTA) on the 30th January 2018, which has also provided it access to a market of 700 million people.
The TFTA is between three regional economic blocs, being East African Community (EAC); Common Market for East and Southern African States (COMESA) and the Southern African Development Community (SADC). Botswana has not yet ratified the Agreement. According to Mmolawa, ratification is dependent on the conclusion of tariff offers between the East Africa Community and the Southern African Customs Union. Mmolawa said that under this Agreement Botswana will be able to access the market for live animals, beef, salt, vaccines for veterinary medicine, minerals, leather products and other products.
As for the policy space to enable businesses to explot this Agreement he cited the National Trade Policy whose objective is to expose local producers and consumers to a wider scope of international inputs, goods and services; and also provides for a conducive environment for industrial development, economic diversification, export-led growth and economic integration.Mmolawa also mentioned the National Export Strategy of 2010 whose objective is to enable global competitiveness for Botswana. This strategy was refocused with a view to accommodating the dynamic industrial revolution, where Botswana wishes to achieve possible expansion of current levels of exports and future prospects in the international markets as well as diversify the country’s export base.
The country also creates contacts and business match making through outward investment promotion missions; and has a trade facilitation programme whose objective is to reduce the time and cost of importing and exporting. This is made possible through a One Stop Border Post which enables neighbouring countries to coordinate import, export and transit processes so that those transiting stop only once at either side of the border to undertake regulatory formalities, for example, between Botswana and Namibia.
Mmolawa said that other interventions being implemented include the National Single Window, which is a single electronic data information exchange platform that facilitates movement of goods and services across countries; as well as the ongoing Kazungula Bridge Project, which is set to open up the transport corridor between Botswana and Zambia with a view to reducing transit time. It will also contribute to the regions ideals of economic integration.
President Dr Mokgweetsi Masisi met public sector unions Wednesday at the Office of the President to hear their complaints regarding delays to commence salary negotiations for financial year 2019/2020.
At the end of the closed door meeting, Botswana Public Employees Union (BOPEU) President Masego Mogwera told the Press that they had come to seek redress regarding the delay in salary negotiations that were supposed to have resumed in December last year.
“We were not discussing the details of how much salaries would be increased by, but our concern is the delay from the employer.
“The President has however, assured us that negotiations will start before January 28, 2019, so that by April 1, public sector employees receive a salary increment,” Mogwera said. According to Mogwera, the delay might have been because the employer seems not to be ready, something which is surprising because “they are the ones who wrote us a letter on November 21, 2018 that negotiations should begin so that they should atleast conclude by December 24, 2018, but that did not happen.” “On our part, we got ready and prepared rules of engagement, and everything that needed to be done but were just awaiting the final meeting with the employer.”
Olebile Molamu of the National Amalgamated Central, Local and Parastatal Manual Workers’ Union believes that the meeting with the President was productive. “From the look of things, the President seems genuine and committed to the process, stating that there is no reason they cannot trust that he will ensure that the process of negotiation takes place and ultimately the public service receive a salary hike come April 1,” he said.
Acting Director of Directorate of Public Service Management (DPSM), Tefo Bogosi said they had set themselves a target that they believed they would meet, but unfortunately that did not happen. He believes that meeting with the President was welcome, because “he was also interested in what has caused the delays.” Bogosi could not explain why there was a delay, save to say this year’s salary negotiations are a bit different because they cover over a period of two years, something they have never dealt with before.
Gaborone High Court Judge Michael Mothobi says President Dr Mokgweetsi Masisi is untouchable in as far as Section 41 (1) of the Constitution of the Republic of Botswana is concerned.
Justice Mothobi stated this in his judgement this week Wednesday in the case in which Dr Masisi’s immunity was tested in a case in which his legitimacy as President of Botswana Democratic Party (BDP) was challenged by Kamal Jacobs.
Jacobs has argued that Dr. Masisi is not the substantive President of the BDP and as such did not and does not have powers to appoint committees of the Central Committee including the BDP Appeals Board Committee chaired by Kinsley Sebele in terms of Article 33 of the BDP Constitution.
Jacobs is one of the losers in the Lobatse Constituency which was won by economist Thapelo Matsheka. Matsheka was up against Ahmed Shabbeer Ishael, Kamal Jacobs, Patrick G. Kebailele, Sadique Kebonang (incumbent) and Lone Lincoln Bome. In the 25th August 2018 Bulela Ditswe results Sadique Kebonang got 1073, Lone Bome 66 votes, Ahmed Shabeer Ishmail 317 votes, Patrick Matlhodi 218 votes, Kamal Jacobs 1219 votes and Thapelo Matsheka won with 1376 votes. Jacobs’ attorney Kagisano Tamocha argued before Justice Mothobi that Section 41 (1) of the Constitution of Botswana is not applicable in their case because they are talking about the presidency of the BDP.
Section 41(1) states “whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her either in his or her official capacity or in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her in respect of anything done or omitted to be done in his or her private capacity.”
Justice Mothobi said the Gomolemo Motswaledi 2009 case sets a good precedent and he had to apply it in the current case. The judge agreed with the respondents in the case that the sitting president is immune in both criminal and civil proceedings. He also agreed with the respondents that both the current case and that of Motswaledi are similar because they involved an action by the president in his or her private capacity.
“I agree entirely with the reasoning of the respondents. The Motswaledi case holds good precedence and I apply it here. The objection raised by the respondents in point in law is accepted. The decision by the High Court followed by the Court of Appeal in the Motswaledi case speaks the same language,” said the judge.
Bogopa of Bogopa, Manewe, Tobedza and Company representing Dr Masisi, BDP, BDP Electoral Board, Appeals Board and BDP Southern Region told the court earlier that in accordance with the section Dr Masisi is immune from the suit and he should have not been cited in the case.
He said it is not disputed that Dr. Masisi is the sitting president and as such no criminal or civil suit should be instituted against him. “The interpretation of this section has been done by both the High Court and the Court of Appeal in the 2009 Gomolemo Motswaledi case. The two cases are not distinguishable.
The current case is a civil application in which a relief is sought against Dr Masisi about something he has done in his private capacity as a member of the BDP. Both High Court and Court of Appeal have proved that actions taken by the president in his or her private capacity- no civil proceedings could be instituted against him or her,” said Bogopa.
Section 41 (1) of the Constitution of the Republic of Botswana does not give President Dr. Mokgweetsi Masisi immunity in a case in which his legitimacy as President of Botswana Democratic Party (BDP) is being challeneged, Kamal Jacobs’ lawyer has argued.
Jacobs argues that Dr. Masisi is not the substantive President of the BDP and as such did not and does not have powers to appoint Committees of Central Committee including the BDP Appeals Board Committee chaired by Kinsley Sebele in terms of Article 33 of the BDP Constitution.
Jacobs lost the BDP’s parliamentary primary elections for Lobatse Constituency to Economist Thapelo Matsheka. Matsheka was up against Ahmed Shabbeer Ishael, Kamal Jacobs, Patrick G. Kebailele, Sadique kebonang (incumbent) and Lone Lincoln Bome.
In the 25th August 2018 Bulela Ditswe results Sadique Kebonang got 1073, Lone Bome 66 votes, Ahmed Shabeer Ishmail 317 votes, Patrick Matlhodi 218 votes, Kamal Jacobs 1219 votes and Thapelo Matsheka won with 1376 votes.
Jacobs attorney Kagisano Tamocha argued this week before High Court Judge Michael Mothobi that Section 41 (1) of the Constitution of Botswana is not applicable in their case because they are talking about the presidency of the BDP. Section 41(1) states “whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her either in his or her official capacity or in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her in respect of anything done or omitted to be done in his or her private capacity.”
Bogopa of Bogopa, Manewe, Tobedza and Company representing Dr. Masisi, BDP, BDP Electoral Board, Appeals Board and BDP Southern Region told the court earlier that in accordance with the section Dr Masisi is immune from the suit and he should have not been cited in the case. He said it is not disputed that Dr. Masisi is the sitting president and as such no criminal or civil suit should be instituted against him.
“The interpretation of this section has been done by both the High Court and the Court of Appeal in the 2009 Gomolemo Motswaledi case. The two cases are not distinguishable. The current case is a civil application in which a relief is sought against Dr. Masisi about something he has done in his private capacity as a member of the BDP.
“Both High Court and Court of Appeal have proved that actions taken by the president in his or her private capacity- no civil proceedings could be instituted against him or her,” said Bogopa. Otlaadisa Kwape of the Attorney General also concurred with Bogopa that in accordance with the section and its interpretation by the highest court in the land the sitting president is immune from any litigation.
Attorney General has joined in the case as Amicus Curie (Friend of the Court). Kwape told the court that therefore the application against Dr. Masisi should be dismissed. However, Tamocha representing Jacobs argued that the section is not applicable in the present case. He told the court that there is a difference between the current case
and the Motswaledi case as cited by the respondents. He pointed out that in the current case they are not asking the president to perform anything.
“Section 41 (1) is not applicable in this case because no one is claiming anything from or against Dr Masisi. This is a point of departure from the Motswaledi case. All what we are asking is for court to arrive at a finding as to whether Dr Masisi is holding the office of the presidency of the BDP in accordance with the BDP constitution.
“We are challenging his legitimacy as President of the BDP. Dr Masisi is a beneficiary of automatic succession in terms of the constitution of Botswana. However, the constitution of the BDP does not provide for automatic succession. Our interpretation of Section 41 (1) is of electoral importance,” said Tamocha.
At this point Justice Mothobi pointed to the attorney that his client is seeking relief against the president and others. Tamocha indicated that Section 41 should be read in its entirety and not in part. He argued that if Section 41 (1) was to be held to be applicable in the current case it would be a recipe for disaster, a human calamity.
He stated that the Motswaledi case is not applicable because the facts of the two cases are not the same and in the Motswaledi case no question of legitimacy was raised and such interpretation in the current case would be overreaching.
Section 41(2) states “where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the term of any person in the office of President shall not be taken into account in calculating any period of time prescribed by that law which determines whether any such proceedings as are mentioned in subsection (1) of this section may be brought against that person.”
Tamocha further argued that an interpretation followed as in the case of Motswaledi is not for public good as provided for by Section 26 of the Interpretation Act, in that such decision would be denying members of the BDP their democratic right of electing their leader if they cannot question their leader’s legitimacy.
Regarding the citing of former President Ian Khama both Bogopa and Kwape argued that he should be struck out of the proceedings. Bogopa stated that no decision should be made regarding Khama because he was not in court to speak for himself.
“He has not deposed an affidavit and what would be said would be tantamount to hearsay. There is nothing in the court papers that says that Dr Khama is incapacitated and cannot sue someone to protect his rights and empowerment. He could have at least been cited as a co-applicant and not a respondent,” he said.
Tamocha told the court that Dr Khama is important in the current case and that as much as no relief is sought against him, he remains important to the case. Dr Khama can deny or agree that he is the substantive president of the BDP.
“I can confirm that service of court papers was done on the 3rd respondent (Dr Khama) on the 19th December 2018. Proof of service is by way of an affidavit by one Tebagano Lebotse. It was filed with the court on Monday this week. This case is brought here in good faith and not meant to embarrass anyone. It is meant to get clarity on the legitimacy for Dr Masisi to hold office of BDP presindency,” Tamocha said.
Justice Mothobi would deliver judgement next week Wednesday.
Salary negotiations for public servants are yet to start under less than a month before Minister of Finance and Economic Development Kenneth Matambo makes his annual budget speech to the nation.This publication has gathered that the negotations which were to start in December 2018 failed to take off as the parties- public sector trade unions and the employer represented by Directorate of Public Service Management (DPSM) - could not meet.
This seems to have been the culture for years between the two parties to fail to agree on salary increment and conditions of service for public servants before the budgeting process gets underway. In most cases negotiations have been carried over to the next financial year. Trade unions have accused the DPSM of stalling to have the negotiations kickstarted.
However, President Dr Mokgweetsi Masisi has expressed his wish for the unions and DPSM to conclude their negotiations before the delivery of the 2019/2020 budget. The president said this on New Year’s Eve when receiving a report on the Review of Salaries Conditions of Service and Entitlements for the Political Leadership, Justices of Court of Appeal and High Court, Members of Ntlo ya Dikgosi and Councilors.
The report was presented by the commission chairperson Justice Monametsi Gaongalelwe. The president assured public servants and union leaders that government has left some space in the budget within which to maneuver but the space cannot be as big as everyone would want.
DPSM Director Goitseone Mosalakatane could not be reached for comment as her mobile phones were not going through. Her supervisor Permanent Secretary to the President Carter Morupisi said he had not much information regarding the negotiations and Mosalakatane would be better place to talk about the issue.
“I do not have their timetable for the negotiations but in our recent meeting she told me that they should be meeting soon with the trade union party regarding the negotiations. It might be before end of this week but I am not very sure about the date because I do not have sufficient information on that,” said Morupisi in an interview.
Botswana Federation of Public, Parastatal and Private Sector Unions Deputy Secretary General Ketlhalefile Motshegwa confirmed that negotiations were scheduled to start in December last year. “As trade unions we wanted negotiations to start on the 21st of December 2018, but DPSM said they are not ready. So, we are still waiting for them to tell us as when they are ready,” said Motshegwa in an interview. Regarding the statement made by the president, the BOFEPUSU spokesperson said Dr Masisi has a propensity to announce things which his ministries and the DPSM operate parallel to.
He indicated that earlier during the State of the Nation Address, the president stated that the unions have been given a Report of Pemandu Consultancy which government commissioned to look into conditions of service of public officers.
“This was all lies, as up to now we have not been given the report. When we confronted the DPSM in our last meeting with them over this misleading announcement by the president, they could only apologise saying they do not know how the statement found the day,” he revealed.
The unionist stated that they have been promised the report before end of December 2018 but nothing has happened. Motshegwa said currently as unions they cannot share with third parties their proposals to the employer regarding increment and conditions of service.He however indicated that public servants in Botswana are currently living under severe, unpalatable and unberable conditions of service in a country so rich.
He said this was so mostly for lower scales employees some of whom though working are painfully poor and constituting the working poor. According to Motshegwa this is immoral and it’s a shame on the leaders of this country in that they have failed to instil dignity in the lives of the people despite the country being blessed with abundance of resources.
“Workers are creators of wealth of this country but sidelined to the periphery when it comes to economic distribution. It so happens that politicians always brag about how there has been developments in this country. What is disturbing is that the hard work of working people is not recognised as the national economic gains of their efforts does not translate or come with any meaningful reward for them.
“This is much driven and influenced by a capitalist system riddled with selfishness, massive corruption, a system with no regard for social justice and thus has created economic disparities, poverty and breeding many social ills,” Motshegwa said.
He pointed out that it is to that effect that as public sector trade unions they urge Government to be serious about improving the conditions of service of workers. There is need to addresses current salaries which are failing against the many economic dynamics inclduing the burden of inflation, he explained.
He added that there is urgent need for conditions of service to be reviewed for purpose of dignity at work.