Gov't secures key victory against Khama
Mpho Mokwape | Monday March 7, 2022 13:13
The much-needed victory comes after the State vowed it was not liable to Khama and his requests, especially after one of his requests being a trip to India to see the spiritual world leader Dalai Lama compromised the country’s relations with Asian giant, China.
On Friday the Court of Appeal bench agreed with the government that the High Court was wrong to rule that the former statesman was entitled to all the benefits and that he was to be compensated in full for the India trip.
Justice Singh Walia allowed the State’s appeal saying the High Court erred in making adverse orders in respect of the travel to India, not only on account of denuding the President of discretion in the matter but also on account of turning a blind eye to national interest.
“In the circumstances of this case, the court below was in error in describing the circumstances surrounding the proposed visit to India as a simple conflict between policy and law. If anything it was a conflict between interests of an individual and the national interest then the latter had to prevail,” he said.
Walia explained that while a policy not having the force of law was not binding on an individual, national interest demands that such individual might not enjoy the support of his country’s executive in an enterprise inimical to its positions.
Therefore in Khama’s case nothing stopped him as an individual from attending the celebration in India, but it would have been wrong to break policies for the government to play any active role in facilitating the trip.
He pointed out that if Khama was unaware of the One China Policy, he was undoubtedly made aware in the response to his request in respect of the travel to India.
“As a former president of the country, he is the face of the country and only an irresponsible and incautious President would actively support or sponsor a former head of state visiting an entity for the purpose of officiating at its celebration of a national uprising against a state recognised by Botswana,” he said.
The judge further explained that the response letter was quite explicit in the reasons for the request being turned down taking into account that the proposed visit was no ordinary visit; it was a visit to officiate at the national uprising day of an entity that Botswana does not recognise under the One China policy.
He said the court below dealt with the issue of the President enjoying no discretion on the matter, save for fixing the per diem allowance and that the One China policy did not have the force of law while paying no heed to the government’s argument of national interest.
The bench’s judgement brings to an end the legal battle that has been ongoing where the State and Khama were in a tussle regarding the latter’s retirement benefits.
Khama had won at the High Court late last year and the government was to amongst other things compensate him for the India trip but the State took the matter to the higher court appealing the judgement.
The State had argued that it could not be subjected to a hostage situation where it was liable to every request by Khama and that the request by the former president to visit Dalai Lama was met with resistance because it ruined the One China policy and strained relations between the two countries.
On one hand, Khama had argued that the One China policy had nothing to do with him as an individual therefore the court was right to rule that he was entitled to be reimbursed for all the expenses incurred on the trip.
He had emphasized that the policy was not law and that no one should be forced to abide by it if they do not subscribe to it. The case was heard by Judge President Tebogo Tau, Justices Walia and Bashi Moesi.