Saturday, May 15, 2021

‘Parliament, not the President, makes laws’-Kirby tells AG’s

Judge President of the Court of Appeal, Ian Kirby last week shot down an argument by the Attorney General’s Chambers (AG’s) that Presidential Directives constitute an exercise of executive or prerogative power, and are not subject to review. 

Delivering judgement in a case in which the government of Botswana was appealing judgements delivered by two High Court judges, Key Dingake and Bengbame Sechele directing the state to provide foreign inmates with ARVs, Justice Kirby said the powers to make laws are conferred upon Parliament, not the President, by section 86 of the Constitution. 

“So in my judgment, executive power is to be exercised subject to the laws made by Parliament,” he said. 

However, Justice Kirby agreed that Presidential Directives may not be renewable in matters of high policy, such as declaration of war or of a state emergency, or the making of appointments to Cabinet or to other high offices. He added: “But it is not the case here, where an administrative decision to provide free anti-retroviral medicine to foreign prisoners was conveyed by the Permanent Secretary.”  

Kirby explained that section 47(1) of the Constitution, which confers executive powers on the President, states expressly that this power is to be exercised “subject to the provisions of this Constitution.” It follows, he said, that in terms of wide powers granted to the Courts by Section 18(2) and 95 (1) of the Constitution that executive decisions conveyed through a Presidential Directive will be reviewable if they are shown to be in contravention of either a law passed by Parliament or the Constitution. 

“We need not, however, go as far as that in the present appeals, because what has been set aside is a Government decision conveyed through a savingram from the Permanent Secretary. I leave open the question of whether certain executive decisions taken under section 47 (1) of the Constitution are reviewable also on grounds other than unlawfulness,” he said. 

Justice Kirby directed that Presidential Directives do not amount to law as they simply convey government decisions, taken by the President acting on the advice of Cabinet.

“They are binding on public officers, but they do not amount to law,” he said.

He added that the discrimination practiced by denying foreign inmates ARVs is far from being authorised by any law, and it flies in the face of the Prisons Act and its Regulations, both of which are clear laws. He further reminded the state that it has a responsibility to keep prisoners in good health because it forfeited their freedom and rendered them unable to fend for themselves. 

“While prisoners have their liberties curtailed by imprisonment, they remain entitled to enjoy the residuum of their constitutional and human rights. The decision to deny foreign inmates ARV treatment while according it free of charge to citizen inmates was ultra vires the Prisons Act and its regulations as it discriminates unlawfully against foreign inmates,” said Justice Kirby.

On the state’s argument that the decision to withhold ARVs from foreign inmates was taken in the public interest due to financial constraints, Justice Kirby said it is the responsibility of governments to budget for its legal obligations. He added that if the law requires a service to be provided, then funds must be availed to provide that service, adding that lack of funds will not in the normal course justify disobedience of the law. He further faulted the government for failing to provide any evidence to prove that providing ARV’s to foreign inmates would be unaffordable. Also, he said, the state did not provide any comparative cost of treating opportunistic infections contracted by HIV+ prisoners who are denied ARV treatment. In his final ruling, Justice Kirby set aside government’s decision to withhold free medical treatment from non-citizen prisoners and made an order for full compliance with the Prisons Act and its Regulations.


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