Recently in a space of a week the highest courts in the land had to remind President Ian Khama and his government that laws are made by parliament. Many cases have come before court particularly from trade unions, challenging directives enforced in the public service. The use of Directives is itself not a bad practice, but they should be used within the confines of the law. The only problem is when these directives violate the existing legislature and subsidiary legislature.
It would appear that it has become a new normal that Circulars and Directives are now considered to be law at government enclave. From the president down to his functionaries it would appear that it has become fashionable to put out directives which they expect should be complied with without any questions. Civil servants in turn take these directives as the laws and in the process disregard laws passed by Parliament. It is disheartening that junior officers are always forced to tow the line and implement these illegal decisions for fear of reprisals or insubordination, or at worst dismissals.
We have watched over time and come to the conclusion that government is wasting millions in unnecessary litigation. What the public is not being told is that this type of litigation, where expensive advocates from as far as Cape Town are paraded in court, is milking the public coffers millions of pula. There are many examples including the ARVs case, which dragged on for years, and was recently decided against government by the Court of Appeal. The case involved no less six attorneys, two advocates from South Africa and four local attorneys. Their bill could easily clock a million pula for just that one case. Even a layman would have long realised that the 2004 presidential Directive was in violation of the Prisons Act and the Constitution as was found by courts. Not even a half-decent lawyer could have missed such a simple and straight forward contravention.
This is surprising because the political leadership is always quick to run to the defence that government does not have money when they have to undertake development projects. Where then do they get the money to engage in such expensive lawsuits, which they hardly ever win? Is someone out there watching, and could those at government enclave change strategy and advise their masters accordingly to save us the huge losses. It is our humble submission that Government has lawyers on her payroll who can advise different functionaries on the legal implications of decisions they are making, be it circulars or directives, before implementation which ends up in litigation. Is it not the duty of lawyers at the Attorney General's Chambers to advise government departments and ministries on any issues that have legal implications?
We would like to urge government to enforce the very laws promulgated by our parliament instead of turning the country into the Wild Wild West where any senior government offical can make their own laws. The state has to respect the rule of law for the rest of the citizens to follow suit.