CoA To Hand Judgement On Public Servants� Primaries� Rights

Goitsemodimo Kaelo | Monday September 25, 2017 16:29

 

Letsididi ruled that the Public Service Act (PSA) does not prohibit public officers from participating in primary elections. His 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 followed 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 political office. However, Justice Letsididi, in his ruling handed down in June, said the section did not bar civil servants from voting in primary elections.

Government has since filed an urgent application at CoA, appealing the judgement. On Friday, when the court commenced to deal with the issue of urgency, government lawyer, Matlhogonolo Phuthego said the application is made pending the appeal that concerns a matter of national importance.

He said the matter is urgent because of exceptional circumstances, which the court should consider.

He said the applicants in the matter should be heard urgently as there are reports that Botswana Democratic Party and Botswana National Front have planned to hold their primaries on October 21 and the last quarter of 2017 respectively. As such, he said it is important that the appeal is decided before any of the political parties hold its primary elections.

“If the appeal is heard in the ordinary manner, it is likely to only make it on to the January roll of 2018 or later, by which time many primary elections would have already taken place and many public officers would have taken part in those elections, despite there being no final ruling by the Court of Appeal.”

He argued that should the matter not be heard on urgency, government’s desire to maintain a politically neutral public service would not be achieved. He said the respondents would not suffer any prejudice if the matter were expedited.

When opposing the application, attorney Mboki Chilisa, representing the NALCGPWU argued that the public service has always been required to be politically neutral and prohibited from active participation in politics.

He said public officers have always voted in primary elections while industrial class have stood for political positions, as such the applicant would need to demonstrate the harm it would bring to this particular elections.

He said the issue of urgency should be considered in the interest of the public not for political expediency.

“They don’t say what they have done to persuade the political parties to change the schedule of their primaries,” he said.

He said the applicant have not treated the matter with urgency as they waited for five weeks before appealing the judgment, as such there is no point for the court to expedite the appeal.

“It is important to balance the interests of applicant and that of the respondents. It would be unfair if the matter is heard on urgency. This is not a case justifying exceptional circumstances that this matter be heard on urgency,” Chilisa said.    

He also argued that the respondent would have its right to engage senior counsel of its choice, who would need more time to advise them in respect of their prospects of success.

Chilisa said a favourable outcome of the appeal could only have real practical effect of the appeal in respect of the BDP primaries, because they were able to remove the names of public officers from their voters’ roll. Meanwhile, BOPEU is not opposing the appeal application.

Lesetedi is expected to deliver the ruling on Tuesday.