A night watchman Moagi Kobedi is challenging the provision of Section 37 (c) of the Public Service Act No. 30 of 2008 stipulating that it is a misconduct for an employee to engage in an activity outside his or her official duties which is likely to involve him or her in a political controversy or to lead to his or her taking improper advantage of his or her position in the Public Service.
Kobedi was last year found guilty of misconduct and dismissed by Director of Regional Operations at the Kgatleng District Education Office, Wonder Masebola. He was accused of active involvement in political activities as a registered candidate for Boseja North ward (Mochudi) as delineated in the notice of poll (2014 Botswana General Elections).
In court papers, Kobedi argues that his dismissal was wrong, unlawful and unconstitutional.
“Alternatively, the act of Standing for Council seat in a general election does not result in my being┬á involved in political controversy and there was therefore no rationale for my dismissal,” argued Kobedi.
He pointed out that prior to the enactment of the Public Service Act; he had a right as an industrial class worker, to contest the elections.
He further argued that this right extended in terms of Regulation 8.23 of the Regulations for Industrial Employees which provided as follows: all industrial class employees are allowed to participate in political activities, and may become candidates for or serve on a Town Council, District Council or other public bodies. With regard to this appointment, the regulations also provide that Government is to allow employees reasonable facilities for serving even though the hours of meeting for council or committee may conflict with their working hours.
The regulations state that government, however, reserves the right to require an employee to retire from any such council or committee if it is found that his membership involves serious inconvenience to his recognised employment in Government. The regulations also states that an employee shall not carry out any type of political activity at the workplace and during working hours. Kobedi argues that this right to participate in political processes as provided for by the regulations in question was part of his right to freedom of expression, which is enshrined in the Constitution of the Republic.
“I am advised that section 37(c) is unconstitutional because it unreasonably infringes on my freedom of expression and or association. Alternatively, owing to its vagueness, it has a chilling effect on the right to freedom of expression, and therefore it does not constitute a permissible limitation to the right to freedom of expression,” Kobedi said.
Kobedi further emphasized that his standing for a council seat in the general elections was not politically controversial.
“There is nothing politically controversial about my standing for a council seat in the general elections. I am certainly not the first public servant to stand for a council seat in the country’s general elections. Participation by industrial class workers in the political process was historically encouraged,” he said.
Kobedi said there is no rational connection between the section under which he was dismissed adding that his dismissal for standing for Public Office “cannot by any stretch of the imagination said to be controversial.”