Richard challenges law barring civil servants from political activism
Mpho Mokwape | Friday February 23, 2018 18:04
Richard who has since joined the new movement, Alliance for Progressives (AP) brought a review application at Lobatse High Court last week seeking to compel the court to strike out section 37 (c) as unconstitutional and his dismissal from the public service declared unlawful.
Section 37 (c) of the PSA bars public servants from engaging in any political activity. It is meant to serve as a guide for political neutrality from civil servant. Now in the review application, Richard wants to challenge the lawfulness of his dismissal and the constitutionality of Section 37 (c) of the PSA, which was used to dismiss him from his duties in 2016 as a senior administrative officer in MP Phenyo Butale’s Gaborone Central constituency office.
In his court papers, Richard, currently studying in Canada, argues that Section 37 was overboard in including within its scope constituency senior administrative officers and for that it must be struck off as unconstitutional. His attorney, Shathani Somolekae told the court that by nature, Richard’s position was in fact a political one, therefore he cannot be divorced from political activities.
“The connection in tenure was in due recognition of the fact that the applicant, although a public servant, did not discharge the role and functions of the ordinary public servant.”
Somolekae contended that her client’s role extended beyond the purely administrative work, meaning that her client as a researcher and when undergoing research work, he was expected to adopt the ideological framework of the MP’s political party.
She maintained that it was that her client’s discharge of duties brought him a breach of the PSA on a daily basis, especially so far as political neutrality was concerned.
“The section that bars the applicant from engaging in conduct which falls in the ambit of his daily duties is with respect absurd,” she said. Somolekae pointed out that there was no how her client, or any other position similar could escape the provisions of the section, especially that Richard’s tenure was solely linked and tied to the MP's.
More so, she argued, the maintenance of political neutral, impartial and fair public service do not require an absolute prohibition of discussions of issues of concern.
She told the court that it was difficult to fathom why a public servant should not be permitted to engage in debate on a radio platform about any topic concerning government.
“Debates like death penalty abolishment or legalisation of homosexuality are important issues where there are often divergent views and for which it is important that all inhabitants of the country relay their opinion,” she argued.
On the lawfulness of the dismissal, the issue raised was that Richard was never given an opportunity to advance factors in mitigation. They want the dismissal to be declared unlawful, be reviewed aside and set aside.
Somolekae notified court that there was no evidence produced or tendered to discredit her client’s assertions.
She said that according to the rules of natural justice, it places an obligation upon decision-makers to afford a party an opportunity to make representations before making a decision that was adverse to them.
Furthermore, she explained that in the disciplinary context, it entailed affording an employee found guilty of misconduct an opportunity to present mitigating factors.
“Had the opportunity to mitigate been availed to the applicant, he may have been able to place information that could have justified a lighter sentence,” she said.
On her client’s employment contract, Somolekae said it clearly stipulated that his contract, other than by reason of the MP’s resignation could only be terminated for good cause; good cause denoting substantial grounds for termination relating to the validity of the ground upon which an employee was dismissed.