Khama cringes at CoA ‘ injustice’
Only an irresponsible and incautious President of Botswana would actively support or sponsor a former head of state visiting an entity for the purpose of officiating at its celebration of a National Uprising against a state recognised by Botswana - Judgme
Former President Ian Khama feels that the Court of Appeal has dealt him injustice when it overturned a decision by the High Court ordering government to reimburse him funds for the Dalai Lama trip.
Khama had personally financed the private trip after government declined to fund it. On the 4th of August 2021 the High Court declared as unlawful and set aside the decision by President Mokgweetsi Masisi’s repeated refusal to avail Khama access use of governmentowned modes of transportation in particular, aircraft and boat, and ruled that Khama is entitled to compensation or reimbursement for the cost he incurred as a result of refusal to avail him the benefit of international air travel and payment.
When setting aside the decision of the high court, the apex court stated that the lower court was clearly in error in making adverse orders in respect of the travel to India, not only on account of denuding the president of discretion in the matter but also on account of turning a blind eye to national interest.
Following the decision of the court of appeal Khama has told the media that he has been done injustice by the highest court in the land. He said the high court had in its judgement made it clear as to what was and is supposed to happen.
According to Khama who is currently in South Africa, even a layman can see that an injustice has been done. He is however humbled by the fact that some lawyers and some judges even from the court of appeal have communicated with him that the decision of the three judges of the court of appeal, among them Judge President Tebogo Tau, has done him injustice.
Without elaborating Khama stated that everyone knows what is happening in Botswana with regard to respect for the rule of law and the judiciary.
In its grounds of appeal, the government argued that the high court judge erred in law and misdirected himself in granting declaratory orders on matters and/ or issues that are clearly spelt out by the wording of statute.
It continued that the high court judge erred in law and misdirected himself in his interpretation of Section 6 ( b) of the Presidents ( Pensions and Retirement Benefits) as embodied in the declaratory orders; and erred in law and misdirected himself in holding that matters of public policy and national security are irrelevant in the consideration of requests for transport by the former president under the Act.
Judge President Tau together with Justices Singh Walia and Moesi ( acting justice of appeal) stated in the judgement that the debate in this case is on air transportation and it is common cause that the requests for such transport is to be considered by the president on a case- by- case basis. Justice Walia stated that the points of law raised by the Appellants are important issues.
He said the lower court was alive to the points and the arguments advanced by the Appellants, but chose to disregard the points altogether. The judge explained that it is clear from the orders made by the high court that it found as a fact, that various requests for transport made by Khama were refused and that such refusal was illegal or irrational.
He said it appears from correspondences on record, however that the office of the president had asked that requests for air transport be made six months in advance but this was not acceptable to Khama.
Justice Walia said on the trip to India “indeed, it is trite that government policy or even a treaty has binding effect only when imported into local legislation. It is however, equally trite that in enacting local legislation, care must be taken to prevent a breach of the country’s international obligations.
“If the Respondent was unaware of the One China Policy, he was undoubtedly made aware in the response to his request in respect of the travel to India.
“As the former president of Botswana, he is the face of the country and only an irresponsible and incautious President of Botswana would actively support or sponsor a former head of state visiting an entity for the purpose of officiating at its celebration of a National Uprising against a state recognised by Botswana.
“While a policy not having the force of law is not binding on an individual, national interest demands that such an individual may not enjoy the support of his country’s executive in an enterprise inimical to its policies.”