Ex-president fights for benefits
Mpho Mokwape | Monday February 21, 2022 06:00
The State is currently fighting through an appeal before the Court of Appeal to withhold all the benefits the former president is reportedly entitled to including the use and access of government transport.
Last year the State lost the case after Khama brought before court a review application challenging the government’s refusal to grant his benefits and to grant him access to the use of state-owned transport, especially aircraft.
At the time, the Gaborone High Court had ordered that the government should give Khama all he was entitled to as a former statesman, including reimbursing him for all the costs he incurred during a trip to India in 2019.
President Mokgweetsi Masisi had among others refused to avail to his former boss, the use of a government aircraft to India.
Now, the State on its mission to deny Khama what he says are his retirement benefits, has filed an appeal before the Court of Appeal seeking a review of the High Court judgment that Justice Gabriel Komboni had handed down.
Contained in the state’s appeal is that the judgment should be nullified because the judge was not supposed to make declaratory orders, especially since Khama was entitled to use state-owned transport.
The State’s defence in the grounds of appeal is that the judge was wrong to grant declaratory orders on matters that were clearly spelt out by the wording of the statute and that the orders are not binding.
“The declaratory orders are not final and binding on the parties. They are quite clearly precipitous of further litigation and stand to be dismissed,” reads the appeal.
The State has argued that the court erred in that it did not set out the basis for its interpretation of the words used in the provisions of statutes and therefore the orders should not be allowed to stand on that ground alone.
The appeal points out that the Justice Komboni was speculating on what was probably intended by the legislature rather than looking at the natural meaning of the words within the context in which they are used.
Further, the State argues that the court was wrong to interpret the section of the Presidents (Pensions and Retirement Benefits) Act and holds that matters of public policy and national security were irrelevant in the consideration of requests for transport by the former president under the Act. “The judge erred in finding that Khama has been refused his entitlement to access the use of government-owned transport as alleged and finding that the government has no discretion to refuse to finance any trip that the former president wishes to undertake,” reads the state’s papers.
The State points out that the judge was wrong to grant an order against the government and erred in not making a determination on the points of law they had raised.
Khama on the other hand has responded by saying that the State has found every conceivable excuse to frustrate and deny him the benefits he claims he is entitled to by law.
He says that despite several requests, the government has not allowed him to enjoy what he is entitled to.
In his responding papers, Khama explained that the State’s grounds of appeal were couched tediously and that each one of them showed there was no merit to the appeal.
“The grounds betray the State’s lack of appreciation of the nature and purpose of declaratory orders. “Declaratory orders are declarations of rights by the court where the parties locked in controversy do not agree on the meaning of a statute that confers rights as in this case.”
The papers explained that the case concerned the benefits Khama was entitled to in law and that his interest was direct and substantial.
The former president says he went to the High Court interpret the law when the State was refusing to grant him benefits and the court declared the law. Therefore, there was no misdirection by Justice Komboni.
Khama said the court held in effect that the State was obliged to ensure that he enjoys his benefits and that it had pointed out that the pension and other benefits are from the Consolidated Fund and therefore, their enjoyment was not subject to any conditions.
“The law does not give the government any discretion on the matter. The government is obliged by law to ensure that the entitlement is met and not frustrated. The State cannot point to any provision of the Retirement Benefits Act that subjects this benefit to the discretion of the government or any government official,” he said.
The former statesman said sufficient facts were established which gave rise to a claim enforceable in court and law. He emphasised that the declaratory orders issued were based on the established facts namely that the State had unlawfully and unreasonably refused him his entitlement that accrued to him by operation of law.
“The grounds are without merit. They all skirt around the main reason for the issuance of the declarations, being that the impugned decisions were illegal, irrational and unprocedural. “The state has nowhere to go when the government places itself above the law and denies legal entitlements on the whims of the individuals, other than to come to court for the vindication of his rights,” reads the papers.
According to Justice Komboni’s original judgment delivered on August 4, 2021, Masisi’s refusal to grant Khama the use of a government aircraft was unlawful. Justice Komboni declared that from that moment onwards, Khama was entitled to using government-owned modes of transport and Masisi was not empowered to deny the former president such entitlement.
“In other words, the President cannot refuse to fund first-class international air travel for the former president except one that exceeds the prescribed four trips. It is also clear that the President cannot refuse to pay per diem for the international trips. His role is to determine the amount of per diem for the trip,” reads the judgment.
In his papers at the Court of Appeal, Khama is also challenging the withdrawal of security detail by the director-general of the Directorate of Intelligence and Security, Peter Magosi, in respect of the trip to India.
The High Court had also declared that the decisions taken by Magosi on July 6 and 14, 2019, to commence disciplinary action against the security detail that provided Khama with security during the trip to India was unlawful.
“The law requires that he (Khama) be protected by such officers. The disciplinary action taken against such officers for reasons that are contrary to the law, has a direct impact on the applicant’s safety,” stated Justice Komboni.
The Court of Appeal will sit for the latest matter on February 25, 2022.