31 October 2018

Botswana: Confrontation With Masisi - Did Rapitsenyane Break Any Law?

opinion

Africa Awake!

Social media has been abuzz with the story of a teacher who confronted President Mokgweetsi Masisi when he addressed a kgotla meeting in Serowe last week. Naturally as somebody who researches in the area of freedom of expression I was interested in that incident too. As was to be expected this was an issue that split the nation, with many supporting the gentleman and others, an equally huge number supporting Masisi.

The argument from his supporters was that the teacher had done nothing wrong as he was exercising his constitutional right to speak or vent out as it were. They even criticized the President for his ad hominem approach (excoriating the guy instead of engaging with his utterances) and for what they termed threats to the teacher, Mr Gobonywewame Rapitsenyane.

Indeed His Excellency started his remarks by unmasking Rapitsenyane as a teacher at Lotsane Senior secondary and wondered whether he was on leave for him to be present at the kgotla on a working day. He suggested that his superiors must look into that and take appropriate action. Further, he warned him that as a civil servant he was not expected to engage in issues 'tsa dipepere' (political issues). His Excellency also seemed to disparage Rapitsenyane as he wondered whether his students were doing well and contrasted his conduct with his own record as a teacher. He claimed that his own students did well.

On the other hand supporters of HE felt that the teacher was way too impudent to speak to the President like that. Rapitsenyane had asked the president two questions. First, why he was reversing former President Khama's decisions/programmes when he was working with him as his Vice President. Specifically he said, 'How far were you when things were getting out of hand?' Yes, when said this in Setswana the words were a piercing indictment on HE and were more stinging.

HE's supporters also felt like him that the gentleman had violated his teaching 'code' of ethics by engaging with the president on political issues. Sadly the issue is still pending. Nobody offered any explanation as to what the law says in a situation like this. The purpose of today's article is meant exactly to fill that lacuna by answering that burning question.

I do not wish to offer any polemical position but explain the law as it is. My own opinion will come at the end of the article. Fortunately for me it is not difficult to answer this because we already have precedent (a decision of the Court of Appeal on a very similar issue). In the case of Goitsemodimo Dintwe v The Director of Public Service Management and Others (2017) unreported, a 5-man strong bench of the Court of Appeal comprising of Their Lordships Gaongalelwe, Leburu, Abernethy, Howie and Brand unanimously agreed that a teacher be fired for writing a newspaper article in which he addressed the welfare of teachers and commented on political developments in the country.

Writing for the court, Justice Gaongalelwe took the view that the article taken in its entirety was an attack on President Khama and his party. The teacher, Mr Dintwe, then a secondary school teacher in Radisele was 'guilty' as indicted by his superiors and he lost his job.

The court relied on Section 34 of the Public Service Act which prohibits teachers from advocating for or against a political party. Section 34 (a) of the Public Service Act 2008 which provides as follows: 'Subject to the provisions of any other written law, every employee shall comply with the following rules of conduct: He or she shall not, without the express written permission of the Permanent Secretary to the President, act as the editor of any newspaper (not being a publication of the Government) nor take any part directly or indirectly in the management thereof, nor publish in any manner anything which may be reasonably regarded as advocating for or against any political party or candidate but he or she may publish in his or her own name other matter relating to subjects of general interest'.

And Justice Gaongalelwe had this to say about the article: "In my understanding the article is one which may be reasonably regarded as advocating against the Botswana Democratic Party as Counsel had earlier submitted".

Dintwe's lawyers tried to raise the fundamental issue that their client was exercising his freedom of expression as per Section 12 (1) of the Constitution and that the particular provision of the Public Service Act offended against the Constitution. The court came to the conclusion that as a teacher Dintwe's freedom was limited by subsection 2 of the same Constitution (Section 12 (2)).

The court reasoned this way: 'For purposes of this particular case, it is pertinent to note that subsection 2 [c]expressly authorizes Parliament to make laws taking away such a right in respect of '... public officers... or teachers'. Appellant was a teacher at the time. Section 34 (a) must have been enacted pursuant to the derogation authorized by Section 12 (2) of the very constitution'.

The court further noted that teachers must be apolitical. "Further, the limitation authorized by the subsection is a legitimate one in a democratic society in that teachers by virtue of their duties and profession have to be apolitical. This must be so to avoid a situation where a person in that position would influence or sway the minds of children one way or the other in the sphere of party politics".

The instant case of Rapitsenyane will involve different provisions of the Act but the position of the court is very likely to remain the same. I do not see anything new that will alter its position. One must bear in mind that the Public Service Act (2008) is a minefield which the employer has at his disposal to punish any civil servant who is misbehaving in his view. For instance, in the case of Rapitsenyane Section 37 dealing with various forms of misconduct may come in handy.

In terms of Section 37 it is misconduct for an employee to (c) 'engage in any activity outside his or her official duties which is likely to involve him or her in political controversy or to lead to his or her taking improper advantage of his or her position in the public service' or

(f) 'Otherwise conduct himself or herself in a disgraceful, improper or unbecoming manner, or, while on duty, is grossly discourteous to members of the public or any person'. That is the position of the law as interpreted by Their Lordships at our highest court.

Now I can state my own position which is immaterial because I am a nobody who cannot alter the position of the court! However, with due respect I was disappointed by this judgment for a number of reasons. First of all Dintwe was not specifically commenting on political issues but also discussed the welfare of teachers. He was thus commenting on 'a subject of general interest' as it is allowed under Section 34 (i) of the Public Service Act.

He did not attack President Khama or the BDP. I would have therefore in applying the 3-part test, a standard globally used to interpret Constitutions, found for Dintwe and declared that his sacking from the Public service was not prescribed by law as required. On the other leg of the test, which is necessity, I would have found his sacking to be disproportionate. If the mischief to be cured was politicization of the students, I would have removed him from the classroom and given him a responsibility that eliminates his political influence, i.e. office work. It is cruel to mete out such a punishment to somebody for exercising freedom of expression. What the court did was equivalent to criminalizing freedom of expression. It is conceded that civil servants must be loyal to their employer and be politically neutral.

However, when we look at comparative international law we notice that the duty to be loyal is not absolute and regard must also be had to the rank of the employee concerned. Further, duty is not always owed. The leading case for me is Vogt v Germany 21 ECHR 205, Application No. 17851/91 (ECHR, 26 September 1995), a decision of the European Court of Human Rights, which is a persuasive authority in our courts. This particular case was about a teacher too.

The problem that I find with our judges is failure to apply a human rights framework to their decisions. They seem not keen to clearly and methodically apply globally recognized standards of constitutional interpretation which are normal in a common law jurisdiction like ours. Our courts have a duty to develop our common law but presently, with due respect and with no attempt to denigrate Their Lordships, a conservative attitude is not the way to develop the law.

I have had the opportunity to interact with scholars and constitutional court judges from across the globe and I can see that we are very much behind. And lastly, for His Excellency, he needs advisors who are competent in image making and rhetorical acrobatics so that he can answer questions in a measured tone and a friendlier manner. Bill Clinton had my friend David Kusnet at his disposal and Vice President Al Gore had another friend Bob Lehrman to call upon. He cannot establish a new order with hostility towards the public. On the other hand if I were Rapitsenyane I would not have approached the president with such questions or at least with that disposition! I would leave that to the politicians!

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