Court of Appeal judge Lakhvinder Singh Walia has thrown out a High Court decision directing the Government to reimburse former President Ian Khama the money he spent on his trip to India.
On the face of it, the controversial case was a contest between the law represented by Khama, and Botswana’s foreign policy represented by government.
Justice Walia however said it was a contest between Khama’s personal interest against the national interest. He said national interests should prevail over personal interests.
The High Court had ruled that government’s 2019 decision to deny Khama air transport to honour an invitation by the Tibetan spiritual leader Dalai Lama in India was unlawful.
Khama was invited to officiate at the Tibetan National Uprising day which threatened to roil Botswana’s relationship with China.
Justice Walia found that it was wrong to rule that Khama was entitled to all benefits including the funding for his trip to India when the trip clearly had an adverse effect on national interest.
He said government was entitled to exercise its discretion when it came to most of Khama’s requests since the law does not impose strict liability on the State.
Justice Walia said, the High Court had no regard to copious correspondence between Khama and the Office of the President relating to the parameters of the availing of air transport.
“It appears from the correspondence 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 the Respondent (Khama),” said Walia.
He found that the orders made by High Court were therefore of no practical effect and the Court ought to have refrained from making orders which would do no more than providing an opinion on the debate between the parties.
Justice Walia said the orders relating to the refusal to sponsor Khama’s visit to the Dalai Lama, while presenting a number of moot issues, require consideration on account of the Government being mulcted in travel costs and per diem allowances and a number of orders having been made in respect of Khama’s security detail.
“It is common cause that the Respondent had sought funding from the Government, for his visit to India to visit India to officiate at the Tibetan National Uprising day,” said Walia.
He said the request was denied as per a letter signed by the then Permanent Secretary to the President Carter Morupisi.
“The letter is quite explicit in the reasons for the request being turned down. The proposed visit was no ordinary visit, it was a visit to officiate at the National Uprising Day of an entity that Botswana does not recognize under its One China Policy,” said Justice Walia.
He said the High Court dealt with the issue of two planes, finding, first of all that the President enjoyed no discretion in the matter, save for fixing the per diem allowance and second that the One China Policy did not have the force of law.
Justice Walia said the High paid no heed to the Government’s argument on the national interest. While Justice Walia acknowledged that a government policy or even a treaty has binding effect only when imported into local legislation, he said, “It is, however, equally trite that in enacting local legislation, care must be taken to prevent a breach of the country’s international obligations.”
Justice Walia said if Khama 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,” said Justice Walia.
He said 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 polices,” said Walia.
He also found that, “So, nothing stopped the Respondent, as an individual, from attending the celebration in India, but it would have been inimical to its own polices for the Government to play any form of active role in facilitating the trip.”
He found that in the circumstance of this case, the High Court was in error in describing the circumstances surrounding the proposed visit to India as a simple conflict between policy and law.
“If anything, it was a conflict between the interests of an individual and the national interest. The national interest had to prevail,” said the judge.
Dismissing and setting aside the decision of the lower court, Justice Walia said the High 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 the national interest.”