27 Sep 2017

Court of Appeal Judge Mr Isaac Lesetedi has postponed a case in which government is appealing a decision of the High Court delivered on July 27, 2017, in which the High Court held that Section 5(5)(b) of the Public Service Act does not prohibit public officers from participating in political parties’ primary elections.  

The dispute before the court was whether Section 5(5)(b) of the Act prohibits officers from participating in primary elections of political parties.

The proceedings were launched in the High Court in April 2014 by the respondents; Botswana Public Employees Union (BOPEU) and National Amalgamated Local Government and Parastatal Workers’ Union (NALGPWU).

They sought a declaratory order to the effect that the aforementioned provision of the Act does not prohibit public officers from voting in political parties’ primary elections and that if the provision did so, such prohibition was ultra vires the Constitution.

The application at the High Court was prompted by correspondence in 2013 from first appellant (Permanent Secretary to the President) to public officers warning them that Section 5(5)(b) prohibits them from voting in political parties’ primary elections.

The appellants resisted the High Court application on two grounds; that the respondents had not demonstrated the locus standi to litigate on behalf of public officers and, secondly, that Section 5(5)(b) of the Act prohibits public officers from voting in political parties’ primary elections, a limitation of rights permissible under the Constitution.

However the High Court found in favour of the respondents on both grounds.

Conversely Justice Lesetedi observed that the appeal was filed on September 05, 2017, more than a month after the delivery of the judgement complained of and that the explanation for the slow pace notwithstanding the professed urgency is that the appellants took some time waiting for the corrected copy of the High Court judgement and thereafter had to consult counsel.

The urgency motivating the application for the expedited hearing of the appeal is that political parties plan to hold their primary elections towards the end of the year with one of the political parties namely the Botswana Democratic Party (BDP) planning to hold its primary elections on October 27, 2017.

The appellants want this appeal finally resolved before those primary elections so that the position of the law is clear.

However Justice Lesetedi noted that currently the October session is heavy with cases, adding that there is nothing before the court to show that any great harm could have been suffered by, for instance, delaying the October 2017 primaries for a month to enable the Court to properly deal with this appeal on a matter of significant importance.

He further observed that the time frame within which the appellants are seeking the appeal to be heard is being too short and not affording the second respondent.

He therefore said the matter will be roll called on October 6, 2017 to see if any acceptable date may emerge if any listed appeals are postponed or withdrawn.

The second appellant in the matter is the Attorney General. ENDS