Civil servants cleared to vote in primaries
Staff Writer | Thursday August 17, 2017 11:23
The judgement came after the Botswana Public Employees Union (BOPEU) and National Amalgamated Central, Local and Parastatal Manual Workers Union (NALCGPWU) took the Permanent Secretary to the President (PSP) to court seeking a determination on the legal interpretation of Section 5 (5) (b) of the Public Service Act No 30 of 2008.
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.
However, Justice Letsididi, in his a ruling handed down last week, said the section did not bar civil servants from voting in primary elections.
“In my view, the starting point is to look objectively at the provision and to determine a meaning that gives effect to the purpose and to the primary objective of the provision,” he said in his judgement.
“The provision prohibits public officers from engaging in ‘active’ membership of a political party.
“The provision’s primary objective is not to allow political party participation by public officers as long as the participation is active. If that was not the primary purpose of the provision, then the legislature would not in its wisdom have included the term ‘active’ but would instead have provided that political party participation is prohibited if one is a public officer.”
He said the reasoning behind the framers of the Act enabling the engagement in politics by public officers was obvious. Letsididi said the Act accords with the constitutionally guaranteed rights of freedoms of association conscience, expression and assembly.
“It seems to me that it would be illogical and unfair to deny public officers the right to vote in a party primary election, yet allow a public officer a right to be a member of a political party.
I therefore cannot agree with the respondents argument that the Act prohibits partisan political association,” he said.
Moreover, Letsididi added, political neutrality of the public service as he understands it, does not mean that public servants should not have an opinion, a view or a say in elections whether national or primary. The judge said historically and prior to the directive, participation in party primary elections had never been proved to have affected the political neutrality of the public service.
“The then PSP (Molale) has not shown or stated in his affidavit that there is empirical evidence to show that the apparent or perceived political neutrality of the public service has been eroded.
“What one gathers from a reading of the PSP’s affidavit is that the cause of the directive was occasioned by his sudden realisation of the number of registered public officers in the voters’ roll of the ruling Botswana Democratic Party.
“In my view that fact cannot justify the conclusion that public officers must not vote in political party primary elections.”
He continued: “It is not clear to me why the PSP has chosen to single out voting in the primary election as being contrary to the spirit of Section 5 of the Act. If voting in a primary election is to be accepted as a proper interpretation of being an ‘active’ member under the provisions of this section, simply registering as a member or being a supporter without membership would also by the same reasoning infringe the tenet of this provision.
“The end result would be to bring about a dispensation that is so extremely unfair that it would ultimately infringe on the Constitutional right to even vote in the general election. Such a proposition is untenable in our democracy”.
Justice Letsididi ordered the respondents to pay the costs of the suit. Attorney Mboki Chilisa represented the two unions while Oteng Thamuku from the Attorney General’s Chambers appeared for the respondents.