CoA denies public servants voting rights
Goitsemodimo Kaelo | Friday November 24, 2017 18:20
The Court of Appeal (CoA) yesterday set aside High Court Justice, Modiri Letsididi’s judgement that the Public Service Act (PSA) does not prohibit public officers from participating in primary elections.
The Botswana Public Employees Union (BOPEU) and National Amalgamated Central, Local and Parastatal Manual Workers Union (NALCGPWU) had taken the PSP to court seeking a determination on the legal interpretation of Section 5 (5) (b) of the PSA No 30 of 2008.
They also wanted the Section to be declared illegal if the court found that it prohibited civil servants from voting in political party primaries as it infringed on constitutional rights of freedom of expression and freedom of association of the public officers as provided for in Section 12 and 13 of the Constitution.
The lawsuit follows a November 2013 directive from then PSP, Eric Molale prohibiting all public officers from participating or voting in political parties’ primary elections. Molale quoted Section 5 of the PSA, which prohibits civil servants from being active members of political parties, or holding office in them.
At the time, it was found that many public officers had registered to vote in the Botswana Democratic Party (BDP) primary elections. Letsididi ruled in favour of the trade unions in July this year, prompting an appeal by the PSP.
Justice Isaac Lesetedi of CoA yesterday said Section 5 (5) (b) of the PSA prohibits public officers from voting in political party elections as it fell within the threshold of what is termed active membership.
The CoA bench of Justices Lesetedi, Ian Kirby, Monametsi Gaongalelwe, Singh Walia and Zibani Makhwade was in agreement that the prohibition to vote in party primaries was to restore public confidence and trust in the public service, as public officers are required to conduct themselves in a fair and impartial manner devoid of political influence.
Justice Lesetedi said different scholars and courts in other jurisdiction have underscored the value of an impartial public service. He stated that Parliament is entitled to limit the rights of freedom of expression and association of public officers due to the peculiar role they play in the running of affairs of the state.
He further said Parliament in its wisdom, chose to permit public officers to become political party members, but to remain inactive. “It is really up to the public officer to determine what value, if any, there is in such a membership, and decide whether or not to utilise the right,” Lesetedi said.
He said, with the PSA, Parliament also deliberately chose to discontinue the previous dispensation granted to the industrial class workers relating to political activism in an effort to bring uniformity the public service.
Regarding the unions’ contention that the prohibition to vote would infringe on the constitutional rights of the workers, Lesetedi said that the bench found nothing offending to the Constitution because Parliament has drawn a line in distinguishing between active membership and what does not constitute an active membership, which sufficiently provide guidance to public officers in what is restricted and not.
Both parties have been ordered to pay their own costs for both the appeal and application for an expedited hearing.