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Employees win big against Ministry of Agriculture

Six disgruntled employees in the Ministry of Agricultural Development and Food Security have succeeded in their court bid seeking the review and setting aside of the decision of Permanent Secretary, in which two employees were promoted unlawfully.

In delivering his judgement on the 5th of December last month, High Court Judge Komboni, came to the conclusion that the procedure followed by the Permanent Secretary in making the appointments contravened Section 7(c) of the Public Service Act. The application which was made by 1st applicant, John Mthetho, 2nd applicant Tobin Phirinyane, 3rd applicant Gothusaone Mathiba, 4th applicant Inspector Phineas Moloi, 5th applicant Eric Mesho and lastly Sala Keipidile, sought a declaratory to the effect that where a post exists within a government ministry, public officers within the ministry who qualify to take up the position are entitled to be considered for it.

A further declaratory was sought to the effect that the 1st respondent (Permanent Secretary), acted unlawfully in failing to consider the Applicants for the positions to which 3rd respondent Aubrey Ranko and 4th respondent Jeffrey Balogi were promoted. Both Ranko and Balogi were, until the promotions which are sought to be set aside and reviewed, employed as Principal Scientific Officers in the Ministry of Agricultural Development and Food Security. They are currently occupying positions of Chief Scientific Officers at D1 job grade or scale. The basis of the review application aforesaid is that the promotions of both Ranko and Balogi were done in contravention of the Public Service Act Cap 26:02 and the General Orders.

While presenting the facts, High Court Judge Komboni said the 3rd respondent in the matter, Aubrey Ranko was promoted to the position of Chief Scientific Officer D1 grade to occupy the position of Farm Manager at Lobu Farm, following a presentation to the Promotion’s Board of the Ministry of Agricultural Development and Food Security by Dr. Phillemon- Motsu, the Director of Animal Production, on the 30th May 2018. Ranko was therefore hand- picked for the position without competition arising from other officers such as the Applicants.

According to Judge Komboni, the 4th respondent Jeffrey Balogi was appointed to the position of Chief Scientific Officer following an interview by the Promotions Board of the Ministry of Agricultural Development and Food Security on the 5th June 2018. He competed for this position with another officer, Motshegetsi Senku.

The Judge said from the record filed by the respondents, as reflected in the minutes of the promotion’s board on the 30th May 2018, it is clear that the 2nd Applicant being Tobin Phirinyane had submitted a grievance regarding the hand picking of Aubrey Ranko for the post and when this issue was raised by the board Dr. Phillemon Motsu stated that though most officers have similar qualifications as Ranko, the latter had vast experience and strong competencies and further that he is also mature, reliable and trustworthy.

It is these appointments on promotion of Aubrey Ranko and Jeffrey Balogi that triggered the application for review. The judge said it is now settled in the jurisprudence of Botswana that the well- established grounds for review of administrative or executive action are an illegality, irrationality and procedural impropriety. The court further settled that the court in a review application does not act as a court of appeal to enquire into the merits of a decision made by the person empowered to make that decision by statute.


The circumstances under which a declaration of rights or instances where declaration of rights can be granted by a court were ably summarized by the court of appeal in the case of Motlhala v Attorney General 2006 (1) BLR 282 at page 288 G-H where the following words of Zeitsman J.A appear;  

“(a) In terms of the Roman Dutch Law the declaratory order can be granted provided that there is an alleged infringements of rights and concrete controversy between the parties;
(b) The court will not give advice or pronounce upon abstract questions were no concrete advantage will accrue to the applicant if the application is granted;
(c) A declaratory order can be granted where consequential relief can be claimed but it is not claimed. However, the court has discretion and will in general not deal with matters piecemeal; and
(d) A declaratory order will not be granted if it does not decide finally an issue between the parties. The order so granted must be hiding in the sense of being res judicata”.

Section 7(c) of the Public Service Act provides that; “In making decisions in respect of the appointment, or other matters affecting human resource management every appointing authority and every supervising officer shall treat employees fairly and shall not subject any employee to nay arbitrary or capricious administrative decision”.

Clause 8.4.2 of the Public Service General Orders provides that; “If the post is one that can be filled by the promotion of a serving officer within the ministry department, the permanent secretary will include in his report the name of the officer he recommends for promotion for the post and will furnish to the appointing authority his record of service. He will also forward the name of any other officers who will be passed over if his recommendation was accepted and he will give in full the reasons for his recommendation”.    

 It was argued on behalf of the Respondents that they acted in terms of paragraph 8.3.3 of the General Orders which states that “in selecting candidates for appointment the main consideration is the efficiency of the public service”.  It is then argued that in making the appointments, the Permanent Secretary considered the said efficiency of the public service. In reaching the conclusion the Judge came to the conclusion that the procedure followed by the Permanent Secretary in making the appointments contravened Section 7(c) of the Public Service Act.

It was also concluded that the Applicants who held same qualifications and positions with both Ranko and Balogi were not treated fairly and the decision to exclude them from the promotion process was arbitrary and capricious. It is clear from the record that not only did the applicants hold similar positions and qualifications with Ranko and Balogi but in respect to some of the Applicants, they hold Master of Science Degrees, whereas they hold Bachelor of Science Degrees only, the court established.

It is also clear from the record that the average performance in percentage terms of some of the applicants exceed those of Ranko and Balogi. The Judge said from the papers it is clear that the applicants are not saying that they should have been the persons appointed. They are saying that they should have been given an opportunity to compete for the promotion in view of the above mentioned provisions of the Public Service Act and General Orders read together with their qualifications.

“I therefore come to the conclusion that the applicants have made a case for the orders they seek,” the Judge said. The Judge therefore made orders that; the decision of the Permanent Secretary to promote both Aubrey Ranko and Jeffrey Balogi be reviewed and set aside; declared that where a post exists within a government ministry, public officers within the ministry who qualify to take up the position are entitled to be considered; declared that the Permanent Secretary acted unlawfully in the failing to consider the Applicants for the positions which both Ranko and Balogi were promoted to and lastly ordered that Permanent Secretary and Ministry pay the costs of the application.

When questioned by WeekendPost, some employees of the Ministry of Agriculture who spoke on conditions of anonymity, revealed that some of the applicants are being intentionally sidelined by their superiors because they feel threatened. “For example, John Mthetho and Tobin Phirinyane are both reading for their final year in Doctorate so they pose a big threat to their bosses. At the same time they have critical analytical skills in their respective fields but they have since been grounded.

The idea is to frustrate them so that they leave voluntarily,” said an insider. Another employee said in their Ministry the bosses have introduced a divide and rule policy whereby you have to align to a certain faction in order to get all the favors including promotions and international trips. “It is not surprising that when they started pursuing the matter, some of them dropped along the way because they were promised incentives”.

At the time of going to press Attorney Chillisa M.M appearing with Attorney Modise S wrote to the Attorney General’s Chambers to state the time frame in which the orders of the high court including the review of the decision of the Permanent Secretary to review and set aside the promoted Ranko and Balogi be effected because nothing has been done to date. The respondents were represented by attorney Nkau R.D. 

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DIS blasted for cruelty – UN report

26th July 2022
DIS BOSS: Magosi

Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.

Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.

She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”

Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.

On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.

“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.

One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.

The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”

The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.

Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.

Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.

The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.

The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.

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Stan Chart halts civil servants property loan facility

26th July 2022
Stan-Chart

Standard Chartered Bank Botswana (SCBB) has informed the government that it will not be accepting new loan applications for the Government Employees Motor Vehicle and Residential Property Advance Scheme (GEMVAS and LAMVAS) facility.

This emerges in a correspondence between Acting Permanent Secretary in the Ministry of Finance Boniface Mphetlhe and some government departments. In a letter he wrote recently to government departments informing them of the decision, Mphetlhe indicated that the Ministry received a request from the Bank to consider reviewing GEMVAS and LAMVAS agreement.

He said: “In summary SCBB requested the following; Government should consider reviewing GEMVAS and LAMVAS interest rate from prime plus 0.5% to prime plus 2%.” The Bank indicated that the review should be both for existing GEMVAS and LAMVAS clients and potential customers going forward.

Mphetlhe said the Bank informed the Ministry that the current GEMVAS and LAMVAS interest rate structure results into them making losses, “as the cost of loa disbursements is higher that their end collections.”

He said it also requested that the loan tenure for the residential property loans to be increased from 20 to 25 years and the loan tenure for new motor vehicles loans to be increased from 60 months to 72 months.

Mphetlhe indicated that the Bank’s request has been duly forwarded to the Directorate of Public Service Management for consideration, since GEMVAS and LAMVAS is a Condition of Service Scheme. He saidthe Bank did also inform the Ministry that if the matter is not resolved by the 6th June, 2022, they would cease receipt of new GEMVAS and LAMVAS loan applications.

“A follow up virtual meeting was held to discuss their resolution and SCB did confirm that they will not be accepting any new loans from GEMVAS and LAMVAS. The decision includes top-up advances,” said Mphetlhe. He advised civil servants to consider applying for loans from other banks.

In a letter addressed to the Ministry, SCBB Chief Executive Officer Mpho Masupe informed theministry that, “Reference is made to your letter dated 18th March 2022 wherein the Ministry had indicated that feedback to our proposal on the above subject is being sought.”

In thesame letter dated 10 May 2022, Masupe stated that the Bank was requesting for an update on the Ministry’s engagements with the relevant stakeholder (Directorate of Public Service Management) and provide an indicative timeline for conclusion.

He said the “SCBB informs the Ministry of its intention to cease issuance of new loans to applicants from 6th June 2022 in absence of any feedback on the matter and closure of the discussions between the two parties.”  Previously, Masupe had also had requested the Ministry to consider a review of clause 3 of the agreement which speaks to the interest rate charged on the facilities.

Masupe indicated in the letter dated 21 December 2021 that although all the Banks in the market had signed a similar agreement, subject to amendments that each may have requested. “We would like to suggest that our review be considered individually as opposed to being an industry position as we are cognisant of the requirements of section 25 of the Competition Act of 2018 which discourages fixing of pricing set for consumers,” he said.

He added that,“In this way,clients would still have the opportunity to shop around for more favourable pricing and the other Banks, may if they wish to, similarly, individually approach your office for a review of their pricing to the extent that they deem suitable for their respective organisations.”

Masupe also stated that: “On the issue of our request for the revision of the Interest Rate, we kindly request for an increase from the current rate of prime plus 0.5% to prime plus 2%, with no other increases during the loan period.” The Bank CEO said the rationale for the request to review pricing is due to the current construct of the GEMVAS scheme which is currently structured in a way that is resulting in the Bank making a loss.

“The greater part of the GEMVAS portfolio is the mortgage boo which constitutes 40% of the Bank’s total mortgage portfolio,” said Masupe. He saidthe losses that the Bank is incurring are as a result of the legacy pricing of prime plus 0% as the 1995 agreement which a slight increase in the August 2018 agreement to prime plus 0.5%.

“With this pricing, the GEMVAS portfolio has not been profitable to the Bank, causing distress and impeding its ability to continue to support government employees to buy houses and cars. The portfolio is currently priced at 5.25%,” he said.  Masupe said the performance of both the GEMVAS home loan and auto loan portfolios in terms of profitability have become unsustainable for the Bank.

Healso said, when the agreement was signed in August 2018, the prime lending rate was 6.75% which made the pricing in effect at the time sufficient from a profitable perspective. “It has since dropped by a total 1.5%. The funds that are loaned to customers are sourced at a high rate, which now leaves the Bank with marginal profits on the portfolio before factoring in other operational expenses associated with administration of the scheme and after sales care of the portfolio,” said the CEO.

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Botswana ranked 129 in female MPs representation

26th July 2022
Minister of Finance & Economic Development Peggy Serame

The Global Gender Gap Index, a report published by the World Economic Forum annually, has indicated that Botswana is among countries that fare badly when it comes to representation of women in legislative bodies.

The latest Global Gender Gap Index, published last week, benchmarks the current state and evolution of gender parity across four key dimensions (Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment). It is the longest-standing index which tracks progress towards closing these gaps over time since its inception in 2006.

This year, the Global Gender Gap Index benchmarked 146 countries. Of these, a subset of 102 countries have been represented in every edition of the index since 2006, further providing a large constant sample for time series analysis.

Botswana ranks number 66 overall (out of 146 countries), with good rankings in most of the pillars. Botswana ranks 1st in Health and Survival, 7th in the Economic Participation and Opportunity, 22nd in Educational Attainment, and 129th in Political Empowerment.

The Global Gender Gap Index measures scores on a 0 to 100 scale and scores can be interpreted as the distance covered towards parity (i.e. the percentage of the gender gap that has been closed). The cross-country comparisons aim to support the identification of the most effective policies to close gender gaps.

The Economic Participation and Opportunity sub-index contains three concepts: the participation gap, the remuneration gap and the advancement gap. The participation gap is captured using the difference between women and men in labour-force participation rates. The remuneration gap is captured through a hard data indicator (ratio of estimated female-to-male earned income) and a qualitative indicator gathered through the World Economic Forum’s annual Executive Opinion Survey (wage equality for similar work).

Finally, the gap between the advancement of women and men is captured through two hard data statistics (the ratio of women to men among legislators, senior officials and managers, and the ratio of women to men among technical and professional workers).

The Educational Attainment sub-index captures the gap between women’s and men’s current access to education through the enrolment ratios of women to men in primary-, secondary- and tertiary-level education. A longer-term view of the country’s ability to educate women and men in equal numbers is captured through the ratio of women’s literacy rate to men’s literacy rate.

Health and Survival sub-index provides an overview of the differences between women’s and men’s health using two indicators. The first is the sex ratio at birth, which aims specifically to capture the phenomenon of “missing women”, prevalent in countries with a strong son preference. Second, the index uses the gap between women’s and men’s healthy life expectancy.

This measure provides an estimate of the number of years that women and men can expect to live in good health by accounting for the years lost to violence, disease, malnutrition and other factors.
Political Empowerment sub-index measures the gap between men and women at the highest level of political decision-making through the ratio of women to men in ministerial positions and the ratio of women to men in parliamentary positions. In addition, the reported included the ratio of women to men in terms of years in executive office (prime minister or president) for the last 50 years.

In the last general elections, only three women won elections, compared to 54 males. The three women are; Nnaniki Makwinja (Lentsweletau-Mmopane), Talita Monnakgotla (Kgalagadi North), and Anna Mokgethi (Gaborone Bonnington North). Four women were elected through Specially Elected dispensation; Peggy Serame, Dr Unity Dow, Phildah Kereng and Beauty Manake. All female MPs — save Dow, who resigned — are members of the executive.

Overall, Botswana has 63 seats, all 57 elected by the electorates, and six elected by parliament. Early this year, Botswana Democratic Party (BDP) secretary general and Gaborone North MP, Mpho Balopi, successfully moved a motion in parliament calling for increment of elective seats from 57 to 61. Balopi contented that population growth demands the country respond by increasing the number of MPs.

In Africa, Botswana play second fiddle to countries like Rwanda, Namibia, South Africa, Burundi, and Zimbabwe who have better representation of women, with Rwanda being the only country with more than 50 percent of women in parliament.

The low number of women in parliament is attributed to Botswana’s current, electoral system, First-Past-the-Post. During the 9th parliament, then MP for Mahalapye East tabled a motion in parliament in which she sort to increase the number of Specially Elected MPs in parliament to augment female representation in the National Assembly.

The motion was opposed famously, by then Specially Elected MP, Botsalo Ntuane, who said the citizens were not in favour of such a move since it dilute democracy, instead suggesting the Botswana should switch to Proportional-Representation-System. Botswana is currently undergoing Constitutional Review process, with the commission, appointed in December, expected to deliver the report to President Mokgweetsi Masisi by September this year.

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