Molale Takes A Hit

  • Molale’s public-servants-voting-rights edict undermined.
  • Unions win for Public Servants
  • AG’s interpretation of Public Service Act infringes on constitutional right to Vote


Those who have gotten used to ruling by degree seldom take into consideration the consequences of their actions and the effect of legal challenges to court, so found out Eric Molale’s. On July 27, High Court Judge Letsididi over turned then Permanent Secretary to the President Eric Molale’s directive prohibiting public servants from voting in a political party’s primary elections.
Molale’s directive dated November 28, 2013, issued at the height of party primary elections in the run up to the 2014 General Elections came under judicial scrutiny when Botswana Public Employees Union (BOPEU) and National Amalgamated Local And Central Government And Parastatal Workers Union represented by Mboki Chilisa of Collins Chilisa Legal Consultants, challenged the validity of the directive. The Unions, the 1st and 2nd Applicants respectively sought an Order of Court declaring that the provisions of the Public Service Act did not prohibit public servants actively participating in a party’s primary elections.
In his directive, Molale had specifically barred public servants from voting during any party’s primary elections. He placed reliance on Section 5(5) B of the Public Service Act which prohibits public servants from active participation in party politics. According to the Judgement the Unions challenged Molale’s position on the grounds that the Public Service Act did not preclude such participation.
The unions in the proceedings, which started in 2014, unusually did not seek to set aside the Molale directive but only sought clarification from court as to the meaning of the section. The unions further argued that alternatively and in the event that the court found that the section of the Public Service Act did prohibit voting in primary elections, then the provision of the act ought to be declared unconstitutional.
The court, in its judgement held that the Public Service Act did not prohibit such voting, and that it was therefore not necessary to determine whether Section 5 (5) B of the Act was unconstitutional. The court, did not specifically set aside Molale’s directive. The effect of the judgement though rendering the directive unenforceable but still operative creates a legal anomaly that may still impact on both the force of the judgement and the directive itself.
The judgement sets out the grounds relied on by Molale for introducing the directive. Judge Letsididi found that the PSP had justified the prohibition of public servants participating in primary elections due to the “huge” numbers of public servants on the Botswana Democratic Party’s voters roll.
In light of the Public Sector Strike, and the ongoing acrimony between public servants and the ruling party the BDP would have had genuine cause to be concerned that its primary elections would be open to potential sabotage by the increased number of voters. What the court did not analyse was whether the role of the PSP allowed for State organs to be used to manipulate party politics by limiting the public sector from participating, in clear violation of democratic norms.
The Attorney General, represented by Ms O Thomaku, countered the unions submissions with what has become the usual rallying call by the AG in such matters, locus standi. Despite repeated ruling by the courts that unions have the right to challenge issues of national importance on behalf of their members, the Attorney General argued that the unions did not have the right to bring the matter to court on behalf of their members, and that individual members either independently or by giving a specific mandate to the unions had to bring the matter to court.
Letsididi dismissing the argument, in a far reaching finding, held that there could be no doubt that in the event that a public servant violated the Molale directive, such an employee would face disciplinary action and possible dismissal. The directive, according to Letsididi therefore had an impact on a public servant’s employment. The finding by the court not only gave legitimacy to the union’s right to approach the court on the challenge.
In addition the court found that there was no doubt that the PSP had the authority to issue the directive and could do so in the interests of good governance and running the country. The court, however, did not make an analysis of the extent of that authority and whether its use, would raise concerns of political parties using state mechanisms to enforce their political will on the public sector.
The Attorney General, on behalf of Molale further argued that political involvement by public servants would undermine the running of Government in a nonpartisan manner. The argument, confirmed earlier this year by the Court of Appeal in the case of a teacher, Dintwe, was accepted by Letsididi but differentiated. Letsididi found that Molale’s interpretation as argued by the Attorney General of what constitutes “active” party participation give rise to the end result which “would lead to a dispensation that is so extremely unfair that it would ultimately infringe on the constitutional right to even vote in general elections”. Such an interpretation, the court said would undermine the very tenets of democracy.
The court upheld the unions case and dismissed the Attorney General with costs.
Executive directives have come under increasing scrutiny by the public and the courts. Previous directives such as the denial of ARV treatment to foreign prisoners, Air Botswana and the denial of state resources for “self-inflicted” harm have either been set aside by the courts or revoked due to public pressure.