Out of nowhere, the Permanent Secretary to the President (PSP) Mr Carter Morupisi came on national television to inform the nation that government had broken the law to please the former President Lt Gen Khama. This was jaw dropping to say the least. I asked myself what was the purpose of this unsolicited confession. For me, this was nothing more than taking the fight to the former President because of the well documented animosity between himself, the PSP and the President, Dr M.E.K. Mokgweetsi. Some of the issues referred to in the television address if not all of them, occurred immediately after Khama left office. Why were these issues not communicated around the period they occurred or immediately thereafter because the nation has been seized with them? Not only that, the PSP has referred to them in the past. I smell a rat in the manner and object of the PSP’s address. The breaking of the law by Botswana Presidents is aided and abetted by some provisions in the Constitution as will be shown in this conversation.
Those who cared to pay attention will be reminded of the national television address by the Minister of Defence, Justice and Security Shaw Kgathi in 2016 in which he stated that Lt Gen Khama had reluctantly and finally agreed to appoint Justice Motumise a High Court judge. This national television address by Kgathi I would argue was, like the PSP’s, a forum where Lt Gen Khama was portrayed as a person who upheld the law yet he had some difficulty in appointing Justice Motumise following the Court of Appeal decision on the matter.
There is a curious element to this address. And that is, when issues surrounding matters of Lt Gen Khama’s retirement benefits and privileges are brought to the fore, the President is out of the country. When the PSP attempted to reduce the number of staff members at Lt Gen Khama’s official residence and office sometimes last year, the President was abroad. On being asked on his return by the media why such staff members were being reduced, he suggested ignorance and promised that he would look into the matter. That was the end of it. Would the PSP be so ambitious to take such action without the President’s concurrence? Not by any stretch of the imagination. The latest incidence occurs while the President is away in the United States. It will be interesting to hear his response on his return should the media ask him.
At the centre of the television address by the PSP was the breaking of the Pensions and Retirement Benefits Act as amended before Lt Gen Khama left office. It must be mentioned that this Act was amended by burning the midnight oil on that fateful night in parliament at the instance of Botswana Democratic Party (BDP) Members of Parliament (MPs) where there was hue and cry from opposition MPs and a good section of Batswana. It was said by those opposed to the amendment that amending the Act was tailor made to suit Khama’s taste buds in terms of issues pertaining to access to aircrafts, boats and quad bikes. It is a well-known fact that Khama is an aviation ‘fanatic’ in all manner one can think of where he was afforded unfettered access to State aircrafts including army ones by former President F.G. Mogae against the Ombudsman’s advice back then. In this instance then, opposition MPs bitterly complained about Rre Mogae’s position. BDP MPs would also have none of it.
The address by the PSP as suggested, was meant to address issues of national importance. I would have expected him to touch on amongst others: job creation; the pathetic state in which health facilities are in; what government is doing, if any, to resolve the stand-off between President Masisi and Lt Gen Khama as this continues to polarise the nation together with the negative image it creates internationally; preparations on the upcoming elections even though this is the mandate of the IEC; how government is dealing with the National Petroleum Fund scandal notwithstanding that part of it is before the courts. These by any measure, are some matters of national importance at the lips of every compatriot. But as it turned, it was a Khama affair press conference masquerading as matters of national importance.
The fact that the PSP has pleaded guilty to breaking the law, the immediate and obvious consequences are that consequent management (bearing the responsibility of one’s actions sometimes with punitive ramifications) should be instituted against him. There is therefore no debate about the guilt. There is a school of thought however, that the PSP was pursuing and implementing an executive order of the President by breaking the law in the manner he has described in the television address. And that executive order would, presumably, be derived from Section 47 of Botswana Constitution which reads thus that ‘The executive power of Botswana shall vest in the President and, subject to the provisions of this Constitution, shall be exercised by him or her either directly or through officers subordinate to him or her.’ Assuming this is the case, the PSP could argue and correctly so, that he broke the law pursuant to that executive order and therefore, no consequent management should be instituted against him. He could also argue and correctly so that he is subordinate to the President and was merely carrying out his orders. But the PSP in his own right, is not the holder of executive power and is therefore liable to consequent management owing to his confirmation that he broke the law as a public servant. Otherwise any public servant who by the definition of Section 47 is a subordinate to the President, could claim that by breaking the law in exercising the President’s executive power, should be left scot-free as the PSP appears to be.
President Masisi has already broken the law post his swearing in. It is a well-known fact that the PSP was at one stage under investigation by the DCEC with regards to the Botswana Public Officers Pension Fund matter. As alluded to above, the PSP is a public servant governed by the Public Service Act. Section 35 of that Act provides that “If the supervising officer becomes aware that criminal proceedings have been or are about to be instituted against an employee, or considers that disciplinary proceedings should be instituted against a public officer, and is of the opinion that such officer should be suspended from the performance of his or her duties pending the proceedings against him or her, the supervising officer shall report the matter in writing to the Permanent Secretary recommending the suspension of such employee…..’ In the case of the PSP, the supervising officer is the President who should, and arising from the afore-mentioned investigations by the DCEC, have suspended him from the performance of his duties. It cannot possibly and reasonably be suggested that in the opinion of the President, there was no need to suspend the PSP considering his well-documented position that he wants to fight corruption. As it reportedly turned out, the investigation was collapsed with investigators redeployed.
The preceding is a precursor to how the law will wilfully be broken under President Masisi’s administration and any other subsequent President much as it was broken during Lt Gen Khama tenure if Sections 47 and 41 (presidential immunity) among others, remain in the same construct. Essentially, these two pieces of legislation put the President of Botswana above the law where his/her decisions cannot be legally or otherwise challenged when in office however such decisions could be deemed irrational were they contested in courts of law. For example, the President is reported to have promoted the Director General of DIS to a higher grade presumably on the strength of Section 47 and not necessarily on the rationale of such decision.