Law infringes on public officers� constitutional rights � Union
Goitsemodimo Kaelo | Tuesday November 14, 2017 17:13
South Africa-based Advocate Alec Freund, who is representing NALCGPU who are the respondents in a case in which government is appealing Justice Modiri Letsididi’s judgement that the PSA does not prohibit public officers from participating in primary elections, says the provision of Section 5(5)(b) does not pass constitutional muster as it strips a major portion of all employed Batswana of their right to participate in a key aspect of Botswana’s democracy, as government is the largest employer in the country.
The ongoing case has seen the Botswana Democratic Party (BDP) indefinitely postponing its primary elections.
“If you can’t have a say on who you going to vote during state elections, then it’s a substantive infringement on your political right,” Freund said.
Freund yesterday told a full bench of Court of Appeal justices that the said section does not prohibit voting in primary elections, but if the Court thinks it does, then it is unconstitutional.
He said the lawmakers did not intend to prohibit public officers because the Constitution gives all citizens the right to freedom of association and expression.
“If the court agrees with the appellants that Section 5(5)(b) prohibits public officers from voting in primary elections, then it limits section 12 of the Constitution, which provides for right to freedom of expression. Voting in a primary election is an expressive act of which public employees are deprived by section 5(5)(b).”
He said the law permits public officers to be members of political parties that membership would be devoid of any value if holders cannot participate in political party activities such as elections.
“No sensible person would want to preclude majority of employees employed by the biggest employer in the country from participating in the primary elections.”
He said general order 38 of the Consolidated Botswana Public Service General Orders of 1996 provided in part that officers may vote at an election if they are eligible to vote, and may attend but not speak at political meetings.
According to him, the Orders, which are still in force and governing the public service, do not specify which elections officers are eligible to vote.
However, Advocate Win Trengove SC who argued on behalf of government said Letsididi erred in his judgement when he said the Act does not prohibit public officers from voting in political party elections.
He said the law has limitations on public officers, and that section 5(5)(b) is a permissible choice the lawgivers made under the Constitution to promote the non-partisan role of the public service. He said the goals of public confidence and fair and equal treatment are buttressed by a public service that is non-partisan and politically neutral.
“The lawgivers wanted to achieve an impartial and politically neutral public service,” he said.
He said public officers may become passive party members, but may not actively participate in any political functions. He said the High Court’s interpretation of prohibition of section 5(5)(b) renders the prohibition vague because it is impossible to determine when participation in the activities of a political party become sufficiently extensive and widespread to fall out of the prohibition.
He further said that section 12(2)(c) permits Parliament to restrict the freedom of expression of public officers by any law, “that imposes restrictions upon public officers, employees of local government bodies or teacher”.
Trengove said this is so because public officers hold a unique position under the Constitution, often framed by exceptions or limitations of general entitlements. Meanwhile, judgement on the appeal will be delivered on November 23.