A case in which former Director of the Directorate on Corruption and Economic Crime (DCEC) Brigadier Matambo has taken President Mokgweetsi Masisi to court over what he deems unfair redeployment is expected to open a can of worms.
The redeployment of Matambo back to the army late last year has been a subject of speculation with some observers at government enclave saying it was aimed at diffusing tension with the Director General of the Directorate of Intelligence Services (DIS) Brigadier Peter Magosi following a fallout.
In papers before Justice Michael Leburu of Gaborone High Court, the Attorney General is cited as the First Respondent and President Masisi is the Second Respondent.
In his founding affidavit, Matambo revealed that his appointment by President Masisi was offered on contract terms for a period of 60 months with effect from 2nd April 2019. He makes it clear that he is not challenging Masisi’s powers to remove him from the office Director General of DCEC.
“…I aver that the President had the requisite power to make the decision to remove me from the said position. My bone of contention is that the residual terms and conditions of the underlying contract of employment which I entered into with the Government remain of full force and effect and ought to be honoured,” he said.
Matambo also asked the Court to “repeatedly make a distinction between the substantive power of the President to appoint, remove from office and to exercise disciplinary control over persons holding or acting in the office designated on the one hand and the resultant contract of employment which is regulated by Section 19(1) of the Public Service At which provides that the appointment inter alia of Head of a Department and any other person in a senior management position shall be subjected to a contract for such term as prescribed.”
He contended that the “aforesaid distinction is palpably clear from the constitutional and legislative frame work.”
“The power to appoint, remove from office and exercise disciplinary control over the designated officers derives from section 112of the Constitution as read with section 4 (1) of the DCEC Act in the case of Director General DCEC,” said Matambo.
He said, however, these provisions in themselves do not regulate how the appointment to and termination of office should happen. Matambo added that manner and form of appointment that the legislature has chosen is a contract of service which, in he case of Director General of DCEC is regulated by section 19 (1) of the Public Service Act.
“Following the President’s decision to appoint me as Director General, the Government entered into a contract of employment with me stipulating the terms and conditions of employment. My contract with the Government was for a fixed period of time and upon the terms and conditions stated therein. At law, I’m further advised, neither contracting party may change the agreement unilaterally,” he said.
Matambo explained that he was not seeking the Court to order his reinstatement but contend that he is entitled to full payment of the salary, allowances and benefits he would have enjoyed for the remaining period of his contract less of what he is currently drawing from his position as Brigadier.
“The salary and other benefits which were extended to me pursuant to the contract of employment constitutes a personal right to me. I had a legitimate expectation that in the event the President was advised to exercise his public power under the Constitution and the national law referred to, to remove me from office, I would be afforded a hearing before the personal right was taken away,” said Matambo.
Matambo also drew the Court’s attention to section 26(2) of the Public Service At which provides that the appointment inter alia of a Head of Department and any other person in a senior management position could be terminated by three months’ notice in writing to the employee on the grounds stated in the said provision, which include, misconduct, infirmity of mind, failure to perform, and unauthorized In other remunerative employment, occupation or business
“In my case, there has been no suggestion that my situation fell under any of the categories envisaged as aforesaid. My removal from office has not been preceded by any disciplinary action against me,” said Matambo.
