Two of my respected colleagues in the profession, Uyapo Ndadi and Mboki Chilisa are of the view that the Director of Health Services has no powers under Section 23 and 25 of the Public Health Act, Cap. 63:01 of the Laws of Botswana (PHA) once the State of Emergency (SoE) has been declared as only the President is the leader and captain henceforth.
Chilisa goes that the seven-day period under which the public health emergency declaration was made by the Director having lapsed and not extended, there is no public health emergency under which he (the Director) can exercise his powers.
With respect, they are both wrong. This is why. The Director made the declaration then, as he was satisfied the situation dictated (Section 23 (1)(a) of the PHA) and was not practical for the declaration of SoE or disaster to be made (Section 23 (1)(b) of the PHA).
The declaration of SoE by the President under Section 17 of the Constitution is wide enough to cover public health. When he does, he does so in substitute (in legal terms) but consequent to whatever advice may have been rendered to him. It is for this reason that Section 23 permits the Director to make the declaration in the absence of SoE or disaster. The SoE is wider in scope and coverage as opposed to the declaration by the Director. Of course, on the phase of it the Director’s powers are curtailed.
That view, correct as it may; and on the face of it, is only valid in so far as the declaration of the SoE is concerned and without regard to the Emergency Regulations. Once regard is had to the Emergency Regulations, the argument falls flat on its face.
Under Section 3 of the Emergency Powers Act, Cap. 22:04 of the Laws of Botswana, (EPA) “…the President may make such regulations as appear to him to be necessary or expedient...’’. Those Regulations “may provide for amending any enactment, for suspending the operation of any enactment, and for applying any enactment with or without modification” (Section 3 (2)(d) of
The Regulations may further “provide for empowering such authorities or persons as may be specified in the regulations to make orders and rules for any of the purposes for which such regulations are authorised by this Act to be made, and may contain such incidental and supplementary provisions as appear to the President to be necessary or expedient for the purposes of the regulations.” (Section 3(3) of the EPA.
In exercise of powers conferred on him, the President promulgated the Emergency Powers (COVID 19) Regulations, 2020. You may wish to note the title and juxtapose that with the declaration by the Director, both relate to COVID 19. The preamble to the Regulation says, “IN RECOGNITION of the risk posed by the COVID-19…the following Regulations are hereby made…”.
Regulations 13; 14; 15; 16 and 17 of the Emergency Powers (COVID 19) Regulations give the Directors certain powers. In fact, all are required to comply with directions for prevention of spread of COVID-19 issued by the Director as published in the Government Gazette.
The PHA has not been amended, suspended or modified. What the President did, by Regulations 13 to 16 of the Emergency Powers (COVID 19) Regulations and as empowered by Section 3(3) of the EPA, was to empower such authorities or persons as may be specified in the regulations to make orders and rules for any of the purposes for which such regulations are authorised, and put in such incidental and supplementary provisions as appear to the President to be necessary or expedient for the purposes of the regulations.
*Mogakolodi Molao is a pseudo name of a senior attorney in private practice and writes about law for Mmegi