Civil servants hoping to punish politicians at internal party primary elections suffered a major blow on Thursday when a full bench of Court of Appeal judges ruled that participation at that level amounts to political activism and is therefore unlawful. The five judges, Judge President Ian Kirby, Justice Isaac Lesetedi, Monametsi Gaongalelwe, Zibani Makhwade and Singh Walia concurred in the interpretation of Section 5(5)(b) of the Public Service Act (PSA). It reads: "Notwitstanding the provisions of subsection 4, any person who was employed in terms of the Acts and Regulations referred to in subsections 1-4 immediately before the coming into force of this Act shall not be an active member of, nor hold office in, any political party". The judges all agreed that this Section prohibits public service employees from voting in political party primary elections and that such prohibition does not amount to a restriction which infringes on their freedom of expression and association as enshrined in the Constitution of Botswana. "The political neutrality of the public service is a source of public confidence, and provisions designed to preserve this must be given their full effect. Low ranking officers can have just as much impact on the service delivery of a government of the day if they become politically active in favour of the political opposition resultantly frustrating or undermining service delivery, as they often serve at the implementation level of the public service," said Lesetedi, reading a decision supported by other judges. Government and the ruling Botswana Democratic Party (BDP) had appealed an earlier decision of the high court where Justice Modiri Letsididi, on July 27, ruled that public officers are free to vote in political party primary elections. BDP deputy Secretary General Shaw Kgathi filed a supporting affidavit in the appeal led by Permanent Secretary to the President, Carter Morupisi. Smarting from an embarassing loss by about 10 cabinet ministers in 2013 Bulela Ditswe and the subsequent loss of popular voter (dropping to just 47%) at the 2014 general elections, BDP-supported by Government- succesfully argued that voting in primary elections amounts to political activism and participation in partisan politics in violation of Section 5(5)(b) of the Public Service Act and the General Orders. The 2013 losses were attributed to disgruntled civil servants who set out to punish cabinet ministers for not supporting their plight during the 2011 industrial action, which saw over 2 000 public servants dismissed from work.
Opposing the appeal NALCGPWU National organising secretary, Johnson Motshwarakgole, had submitted that a proper interpretation of the disputed Section 5(5)(b) reveals nothing which suggests that civil servants are prohibited from voting in primary elections. The BDP even hastily postponed the 2017 Bulela Ditswe scheduled for October 21 in 18 constituencies held by the opposition to, according to Secretary General Mpho Balopi, await the Thursday decision. Of the 18, seven have agreed on consensus candidates including Selibe-Phikwe West, Tlokweng, Gaborone North, Gaborone Central, Goodhope-Mabule, Bonnington North and Kanye South. Dismissing the judgment of the high court, Lesetedi said it overlooked a number of basic tenets in litigation among them that in motion proceedings the court accepts averments made by the respondent together with those made by the applicant which are not disputed by the respondent. He singled out for illustration a dispute between the parties over whether or not the PSP's issuance of a Directive blocking civil servants from voting in primaries in November 2013 was motivated by an interpretation of the statutory provision or discovery of a large number of civil servants on the voters roll of the BDP and fear that a large number of prominent candidates (ministers) will be voted out in retaliation. So was the issue of whether voting in primary elections by public officers had previoulsy occured or had previously had any effect on the question of neutrality. "Second, there was no evidence of international best practices upon which any findings could be made as the court did," said Lesetedi. Further, the reliance on the Canadian case based on the perceived best international practices is also without solid foundation not only on that basis but also, on the distinct differences between the legislation in the two countries, he observed. Letsididi had also ruled that for the PSP's Directive to single out voting in primary elections without including registering as a member of a political party would be extremely unfair that it would infringe on the constitutional right to even vote in general elections. The CoA judges dismissed the finding as startling as it ignores the context of the directive and the provisions of section 67 of the Constitution. "Whatever the point in dispute between the parties, it is clear that section 5(5) of the PSA does not seek to limit any of the public officers' voting rights under the Electoral Act and section 67 of the constitution," ruled Lesetedi. According to Lesetedi, if public officers are permitted to attend meetings solely reserved for political party members it is difficult to see how the PSP or his office would be able to properly regulate the limits of participation of public officers who attend such meetings, without intrusion into the space of such political parties. There is nothing in the wording general orders whch can reasonably be said to permit participationin political party primary elections, he said. Relying on provisions of the public service charter and citing numerous sources of literature to support his findings, Lesetedi concluded that it is perhaps with the realisation that with respect to public officers there is a need entitling parliament to limit the rights of freedom of expression and association of public officers due to the peculiar role they play in the running of the state and service to the public at large, that the Constitution so provided.