Certain officials of the Botswana Democratic Party (BDP), whose full particulars appear herein, engaged in corrupt or illegal practices to influence and distort the outcome of the election; the Directorate of Intelligence and Security Services (DISS) unlawfully aided and abetted the BDP officials in executing the corrupt or illegal practices aforesaid;
Certain officials of the Independent Electoral Commission (first respondent) unlawfully aided and abetted the BDP officials in executing the corrupt or illegal practices aforesaid; The roll that was used on the polling day was not the same as the one certified by the Secretary of the first respondent;
The first respondent contravened or permitted the contravention of the provisions of section 28 of the Act. In proof of the complaints alleged to above, your petitioner shall at the hearing of this petition lead evidence from a whistleblower, Moemedi Dennis Baikalafi (Mr. Baikalafi), whose particulars are as follows: an adult self-employed man of full legal capacity resident in Gaborone; the Managing Director of Even Life Holdings (Pty) Ltd; he is also member of the Botswana Democratic Party ('BDP') Communications Support Sub-Committee.
During the run-up to the 2019 elections Mr. Baikalafi was part of the national campaign team of the BOP. This team comprised amongst others the following office bearers of the BOP, to wit; Secretary General, Mr. Mpho Balopi (Mr. Balopi), Head of Strategy, Dr. Comma Serema (Dr. Serema), and Head of Communications and International Relations Mr. Kagelelo Banks Kentse (Mr. Kentse).
In or about June 2018, a meeting attended by the BOP President Dr.Mokgweetsi Eric Keabetswe Masisi (Dr. Masisi), Mr. Balopi. Dr Serema, the Treasurer of the BOP Mr. Satar Dada (Mr. Dada) and Mr. Baikalafi was convened at Tsholetsa House. Also present at the meeting was the Director General of Intelligence and Security Services, Brigadier Peter Fana Magosi (Rt.) (Brigadier Magosi). In this meeting, Dr. Masisi expressed his concern of losing the forthcoming elections and those present were called upon to suggest strategies of ensuring that the President wins the elections. It was clear to all present that the message conveyed by Dr. Masisi was 'win by any means'.
It was agreed at the said meeting that the date of the elections be set for 23rd October 2019. Brigadier Magosi was to cause registration of 'front companies' to be used for money laundering purposes. An unspecified amount of money was to be transferred from a DISS 'slush fund' to the front companies. The front or dummy companies · were to pay a company referred to as Native Groups (or a company of a name closely related) under the guise of advertising for the presidency. Native Groups is owned by Mr. Balopi, the Secretary General of the BDP.
Dr Masisi, Mr. Balopi, Brigadier Magosi and Mr. Dada devised a plan to pay Independent Electoral Commission (IEC) voters' registration officials to issue more than one voter's registration card per individual to be selected, who would subsequently cast votes for the BDP. The meeting resolved that Mr. Balopi in his capacity as the Secretary General would be the over-arching coordinator of implementation of the plan that had been hatched.
The general voters' registration took place during the period of 3rct September 2018 to 11th November 2018 and it was during this period that implementation of the plan of issuance of double voters' registration cards was to be implemented. Mr. Balopi issued instructions to various coordinators spread over the length and breadth of the country to approach voter registration officers of the IEC and to bribe them so that they could effect the duplicated registration. Mr. Baikalafi was one of the coordinators given this task.
Mr. Balopi gave Mr. Baikalafi an amount of P 16 500.00 (Sixteen Thousand Five Hundred Pula); P 15. 000.00 in cash and P 1 500.00 through Stanbic Mobile money transaction. In addition, he gave him a list of coordinators the latter was to manage. In particular, these were coordinators based in the Central Kalahari Game Reserve ('CKGR') being a certain Onkgolotse (mobile phone number 73925305 I 74480227).
The latter was designated the team leader for the said area and he was to arrange double registration of potential voters in Phakalane, Gaborone and Gaborone Central. The other coordinator (or team leader) was one Mmaagwe Dan (mobile phone 71615580), who was assigned the Maun area. She was assisted by her son Dan· (mobile phone 74128830) and Kefilwe Makata (mobile phone 73735524 I 72369336). Mr. Baikalafi distributed the funds given to him by Mr. Balopi between the two teams aforesaid.
The coordinators (or team leaders) assigned to different areas were required to compile a list of potential voters who were to be used in the double registration exercise referred to above. Mr. Baikalafi was charged with coordination of the CKGR and Maun, inclusive of greater Maun. With the assistance of one Fish, Tiro Mekgwe, Thato Osupile, Selwana Kesebonye, Lotty Manyapedza, Kabo Masoba and Mbakiso Tjiyapo, all BDP activists, a list of the potential double voters was compiled. This list was very copious, running into approximately 16 000 (sixteen thousand) names.
Mr. Baikalafi is aware that other teams which were part of the exercise of coordinating duplication of voters' registration and trafficking also compiled similar lists. Mr. Baikalafi states and has verily informed your petitioner, and the latter believe same to be true for reasons of his stated personal involvement both in the planning and execution of this vote fraud, that the potential voters mobilized for this fraud did not even turn up personally, or attend in person, at the various voter registration points. What was done by Mr. Baikalafi and others in his team was to: obtain the names and National Identity numbers of said potential voters and then submit them to certain identified IEC Voter Registration Officers;
have the IEC Voter Registration Officers capture the names and identity numbers of said potential voters into their voter registration booklets, after hours and at their residences; have the said IEC Voter Registration Officers issue at least two voter registration cards per such voter; collect the issued voter registration cards for safe keeping, awaiting their handing over to the voters on election day to facilitate their voting;
It was agreed that the pool for sourcing potential voters to be used in carrying out the electoral fraud was to include institutions such as military garrisons, tertiary institutions, organized community based organizations like soccer teams and cultural groups, as well as churches from. Which names and details of members could be easy to obtain.
Such names were to be, and indeed were, submitted to the identified IEC voter registration officers and duly registered as having attended personally to register when in truth they had not. Many of the names were so registered without the consent and involvement of the individuals whose names and particulars were used, the idea being to then, consequent upon their successful registration as stated, then have the National Identity Office issue National Identity cards in respect of such individuals and have the DISS collect these and hand them to identified and trusted individuals who would then present themselves at the various polling stations and impersonate the real persons of such names and particulars and accordingly vote.
Most if not all such "voters" were deployed in Gaborone Bonnington North and the rest of the Gaborone and surrounding constituencies. I have myself come across a number of individuals who state that they never attended at any polling station to register for the 2019 elections and did not expect their names to be the voters roll for these elections. They were shocked to discover after the elections that their names do actually appearin the voters roll and fear that someone else may have impersonated them and voted purporting to be them.
One such person states that he resides at Block 9 in the Gaborone Bonnington South Constituency but his name appears as registered in Block 3 in the Gaborone Bonnington North Constituency. He will be called to testify at the hearing of this matter. In Mr. Baikalafi's estimation, the total number of people who were registered as stated above and thus voted more than once in the Gaborone Bonnington North Constituency is over two thousand, which would account for at least four thousand votes ascribed to the second respondent and resulting in her being declared the winner.
Other such "mobilized" voters were registered in the same way in the other Constituencies in Gaborone and the surrounding constituencies of Tlokweng and Mogoditshane, including Lentsweletau-Mmopane and were facilitated to vote in said constituencies and then cast a second vote in Gaborone Bonnington North.
To Mr. Baikalafi's knowledge the bulk of all documentation used to prosecute the said fraud was kept in the custody of Mr. Balopi, who stored same at plot No. 55741, Tsaru Tsaru Close, Phakalane, his residence and Plot 208 Mogoditshane, being one of his properties. Mr. Baikalafi estimates that the total number of people who were used to perpetrate the double registration fraud could well run into tens of thousands.
According to the scheme of double registration, Mr. Balopi paid or facilitated the payment of willing IEC voter registration officers in the amounts between P2 000.00 and P5 000.00. The actual amount paid depended on how well the registration official negotiated. Every registration official had their own voter registration books and were allowed to take the books to their respective homes, so that they could 'work from home'.
Team leaders in various constituencies were appointed to ensure individuals were registered to vote in two or more different constituencies and to be moved to another constituency that needed more votes so that the BDP could win. This became what was called 'the mobilization. When the registration officials managing voter registration filled in Form A correctly he/she would intentionally fill in a second form using the same information as the first but omit either a letter in the same name or a number in the identity number. This caused a second 'individual' to be registered on the voters roll and two pink voter registration cards were issued to the same individual but on the system it was recorded as two separate individuals.
From my own understanding of electronic data maintenance, storage and retrieval systems, any activity undertaken on the system, such as the one kept and maintained by the first respondent, would leave an inerasable trace which would show: who accessed the system?, especially where access is by password or some such form of personal identification; What information was uploaded, deleted or altered during such access; and exactly when such access was gained.
Thus it would be easy and expedient for a proper disposal of this matter to have an audit of the data base or electronic system of the first respondent to settle this aspect. Transport, food, accommodation and incentives were then arranged by Mr. Balopi for voting day for the mobilized/ trafficked individuals.
Registration process commenced on or about September 2018 and continued for three months. There were three registration phases; general registration which took place at the registration polling stations, continuous registration which took place at the registration polling station and supplementary registration which took place at the registration polling stations.
As averred above, team leaders in various constituencies, specifically recruited to defraud the electoral process were appointed to ensure that individuals were registered to vote in two or more different constituencies in an urban area or to be moved to another constituency that needed more votes in a rural area.
In order to facilitate the said process the Election Day was ·set for Wednesday, with the Tuesday afternoon and Thursday being declared public holidays. This was the first time in Botswana's electoral history that three public holidays were declared for a general election. This was done so that buses normally used on working days could be used for 'voter trafficking' on the days before and after the elections.
Sometime in October 2019, but before the Election Day, Dr. Masisi, Mr. Balopi, Brigadier Magosi and others went on a 'tour' around the country and informed the team leaders as to how to mobilize their 'voters'. The buses arrived shortly after the team leaders were informed as they traveled to each area. The team leaders were paid a P 2 000.00 (Two Thousand Pula) stipend for September 2019 and October 2019 by Mr. Balopi and given airtime scratch cards to keep in contact. Some of the national coordinators were given cell phones. This stipend was provided for two months.
The team leaders held all the duplicate voters' cards in their possession as well as their legitimately issued voters' registration cards. They would then get the voters on the buses and travel with them to the relevant constituencies to vote. On the 22"d October 2019 the voters were transported and accommodated at facilities close to the voting stations they were to cast their votes at.
At the voting stations there were line marshals who were holding the queue stating that they were awaiting 50 or more individuals in front of them so that when the voters arrived they could get off the bus, vote quickly and leave again. Voting began at 0630 hours, but the queue started forming much earlier, so that the 'line marshals' would be in place from 0300 to ensure the trafficked voters would vote and go. Houses were 'donated' for accommodation and tents and mattresses were purchased and set up. About 70 tents were set up in Mogoditshane and tents were also set up in Gaborone, Phakalane and Block 6.
Food was purchased from 'Choppies', a local chain store and alcohol was given to the mobilized voters. Mr. Balopi had issued an instruction that no receipt was to be kept for the alcohol purchases and that payment was to be strictly by way of cash. Once the voters were done at the voting stations, they were transported to locations where lunch had been prepared for them by caterers. Both voters' registration cards were then taken from them and their names were ticked off the list, so that a record was kept of who voted. The mobilized voters were only paid their 'incentives' after they voted and had handed in their duplicate voter's registration card.
Mr. Baikalafi was directly and personally involved in the implementation of the said fraudulent scheme in respect of all Gaborone Constituencies which include Gaborone Bonnington North, and Kanye South, Mogoditshane and Tlokweng constituencies. In all these constituencies, the mode of election cheating was as tabulated above. According to Mr. Baikalafi, he was in regular communication with other coordinators involved in the said operation and that they individually told him that they successfully implemented the plan as agreed.
Save where the context otherwise reflects, all the averments made at paragraphs to 13 to 49 above, inclusively stem from what Mr. Baikalafi has verily informed your petitioner, and the latter believes same to be true for reasons of his stated personal involvement both in the planning and execution of this vote fraud.
Your petitioner had assigned two (2) polling agents at each of the polling stations in the constituency. The averments that follow herein, of what transpired at the said polling stations derives from what the polling agents verily informed your petitioner, and the latter believe same to be true for reasons of the former's personal involvement thereat.
At the polling stations and in order to facilitate the fraudulent scheme aforesaid, the presiding officers took copies of the elections rolls which the polling agents had brought with them and gave them substitute rolls, which had been manipulated to enable the fraud. Several names of potential voters who were included in the elections voters' roll certified by the first respondent were not in the substitute roll availed at the polling stations.
In the event a voter's name was excluded from the substitute roll, the presiding officers would ask him/her to leave his/her telephone number under the pretext that they would call them later. The polling officers would later call the affected voters, some would come and they were allowed to vote despite the fact that their names were not in the roll. Some prospective voters were reflected as deceased on the substitute voters' roll when they were still alive.
Some of the substitute rolls were incomplete. At Khuduga Polling Station, for instance, the roll that had been availed commenced from names starting with alphabet "M" to those starting with alphabet "Z". Later, the presiding officer brought a complete roll. However, by then a considerable number of people had already voted.
One of your petitioner's polling agents at Khuduga Polling Station, Gaolatlheope Lydia Ngaka protested the conduct of the Election Officers at the Polling Station, and her remonstrations were captured in an audio recording which will also form part of the evidence herein. Her protestations were against: the prohibition by the Election Officers of crossing out on the voters rolls supplied, of voters as they voted; the conduct by Election Officers, of allowing persons to vote whose names and details did not appear in the voters roll;
the refusal by the Election Officers to stop the voting in order to address the issue of voters rolls that were not the same and did not contain the same information as evidenced by the claim by the Election Officers in rejecting her protestations, that the names of said persons appeared in a voters roll that the Election Officers claimed to have which had not been availed to the polling agents despite the fact that the Election Officers had prevented the polling agents from bringing into the polling station a copy of the Certified Voters Roll and insisted on the polling agents using the voters roll given to them by said Election Officials.
The forcible insistence by the Presiding Officer that your petitioner's polling agent should not cross out voters who had voted made cross checking and detection of double voting difficult, if not impossible. In view of the fact that the only Voters Rolls used at the polling stations were those furnished to the polling agents at the polling station on Election Day, said voters rolls form a critical piece of evidence in this matter and should, therefore be availed to your petitioner. He has consequently requested said voters rolls from the first respondent by letter dated 6 November 2019 which was duly served on the first respondent. A copy of the letter is annexed hereto as "DGB 5".
The first respondent undertook to revert to your petitioner's attorneys in respect of the said voters’ rolls per its letter of 7 November 2019 annexed hereto as "DGB 6", subsequent to which the first respondent sought an indulgence to 14 November 2019 per its email communication of 11 November 2019 annexed hereto as "DGB 7". The first respondent then finally gave a response by letter dated 13 November 2019 a copy of which is annexed hereto as "DGB 8". The voters' rolls which were the subject of your petitioner's request communicated through his attorneys are of critical importance to this petition and he persists in his demand to be furnished therewith.
There were four (4) parliamentary candidates representing BDP, UDC, and Real Alternative Party (RAP). This notwithstanding, the ballot paper included a symbol of a fifth candidate, depicted thereon as a gem diamond. This caused confusion amongst the voters. Your petitioner contends that the first respondent has failed to deliver in the constituency he contested for, a poll that was efficient, proper, free and fair, thus abdicating its Constitutional mandate. Owing to the nature and magnitude of the fraud perpetrated and irregularities committed as averred above, it would be difficult and even impossible for the Court to ascertain the rightful winner for the Bennington North constituency.
Wherefore your petitioner prays for an Order in the following terms: directing that the second respondent was not duly elected and that no other person was or is entitled to be declared duly elected; directing that the declaration made by the Returning Officer for the said elections to the effect that the second respondent was duly elected is null and void. Declaring that the Bennington North constituency seat is vacant; certifying to the President the vacancy of the constituency seat and the cause thereof; directing that the first respondent pays the costs of this petition;
Owing to the nature and magnitude of the fraud perpetrated and irregularities committed as averred above, it would be difficult and even impossible for the Court to ascertain the rightful winner for the Bonnington North constituency. Directing that the declaration made by the Returning Officer for the said elections to the effect that the second respondent was duly elected is null and void.
President Dr Mokgweetsi Masisi and the Directorate of Intelligence (DIS) came under the lens of the United Nations Human Rights Committee during the just ended dialogue between committee members and the Botswana delegation.
Scores of issues, among them the country’s reports on topics including whether Masisi abused the State of Emergency Act during the COVID-19 pandemic and alleged surveillance and harassment of members of the public by DIS, were addressed at the session.
A Committee expert asked about legislation in the Penal Code allowing the Government to investigate people who expressed opinions against public figures, particularly the President. How many cases were there of journalists who had been investigated, prosecuted and tried? Concerning the COVID-19 Emergency Powers Act, there was a provision for a fine or a five-year jail term for journalists using “source(s) other than the Director of Health Services or the World Health Organization” when reporting on COVID-19. The Committee Expert asked for the number of cases and other measures taken under this Act.
Another committee expert wanted to know that the scale and scope of electronic surveillance, which had sharply increased in recent years, was concerning. Furthermore, the Committee was troubled at the lack of a sufficient independent oversight mechanism over the Directorate of Intelligence and Security Services that reportedly had contributed to a growing climate of fear and chilling effect on journalists, human rights defenders and opposition politicians. In this respect, a Committee Expert asked about the measures taken by Botswana during the COVID-19 pandemic to ensure that the right to privacy was protected (collection and management of personal data).
The Expert also enquired about a database website, which was not functioning but was supposed to contain documents of Botswana’s international human rights commitments. In terms of the freedom of assembly, while the Constitution of the State party guaranteed it, the Committee had received information that, in practice, the Public Order Act required citizens to apply to the nearest police for a permit to hold an assembly, and police had sometimes denied requests for unclear reasons.
The Committee Expert asked if the Public Order Act of the State party had been applied in conformity with those tests. Would the State party indicate the measures it had taken and/or intended to take to make the application of the law in question strictly compatible with the requirements under article 21? Furthermore, the Committee had also received allegations that police officers sometimes used force to compel gathering people to disperse. In this regard, the Expert asked for information on legal provisions and practical guidelines under which police officers may resort to force and any training programme if any, for police and other law enforcement officers to respect and ensure the right of peaceful assembly.
A Committee Expert asked about cases of holding people for longer periods under pre-trial detention than the maximum period provided for in legislation, 36 months, instead of six. Were there any plans to shorten the duration of pre-trial detention in legislation? The Committee noted that there was no provision for local community broadcasting. What measures were the State party taking to ensure that the local communities could also communicate in their language in the media?
What measures had been undertaken by Botswana to increase sustainable development in the country regarding climate change in particular. What efforts had been undertaken to ensure that customary courts worked up to speed? A Committee Expert asked about children in rural areas who travelled a long way to their schools. The delegation was asked about the independence of the Ombudsman Office, including provisions for appointing the Ombudsman. What budget was envisaged for this Office?
The Expert acknowledged the established procedures and institutions for anti-human trafficking but expressed concerns about the lack of reported cases. The Expert asked about the accountability of the public prosecution, as well as the intelligence services. Replying, the Botswana delegation, led by Presidential Minister Kabo Morwaeng, said there was an ongoing consultation for revising provisions that would ensure better protection for journalists and media freedom in Botswana.
Still, the delegation said, freedom of expression was assured in the State party without any restrictions, including in Parliament. There was an education programme providing the opportunity for children in primary school to be taught in their mother tongue. It also explained that the Ombudsman would be dealing with issues of human rights promotion and protection.
“National policies and procedures were envisaged to control the distribution of natural resources. Botswana was also taking measures to increase the access of minority groups to education. Regarding pre-trial detention, the delegation explained that the criminal procedure assured justice was preserved in the country,” said the delegation.
On the issue of torturer and alleged use of unreasonable force on suspects, the Botswana delegation explained that police officers were trained to use minimal force, ensuring that human rights were preserved, including in the cases of assemblies. On the use of surveillance, no legal provisions were breached, and such measures were used in accordance with national legislation. Legal aid was very costly, and it was not possible to keep the record in detail as asked by the Committee.
Morwaeng told the Committee that the Government maintained a robust consultative approach to policy development and legislative process. He said this was a system of governance that ensured that the voices of ordinary citizens were respected and taken into account in the social, economic and political process that affected them the most, giving full effect to the full enjoyment of human rights across the board. The delegation took due note of the views of the Committee, including the importance of harnessing information technology to give a broader appreciation of the provisions of the Covenant.
The P1 billion water project launched by President Dr vMokgweetsi Masisi this week is said to be critical to the success of key projects planned in Lobatse – the Lobatse Milk Afric and Leather Park. After commissioning the multi-million Pula Masama-Mmamashia water project last week following its completion, on Thursday, Masisi performed ground-breaking ceremony of yet another major water project, the Lobatse Water Supply Master Plan (LWSMP1).
The water project was conceptualized in 2009 to address water shortage in areas along the Greater Gaborone zone. These areas include Ramotswa, Otse, Mogobane, Mankgodi, Manyana, Goodhope, Lekgolobotlo, Mmathethe, Molapowabojang and villages surrounding. It was said that some major upcoming projects in Lobatse such as Lobatse Leather Park, Milk Afric and the Pioneer Border Gate are dependent on the success of this project, in order for them to take off and operate effectively. The two projects have been struggling to take-off despite government having put the necessary resources.
The Lobatse Leather Park is anticipated to create about 4700 jobs at the initial stage and 7000 jobs at full capacity. The project entails the development of a complex for different tanneries with the support of state-owned beef company, Botswana Meat Commission. It will comprise primary infrastructure such as a common effluent treatment plant, sewage treatment plant, and others.
When operational, the park is expected to supply the private sector with hides and skins, raw to finished leather tanneries, and the manufacturing of different leather products. These products include shoes, belts, jackets, and others, thereby playing an instrumental role in stimulating economic activity. Leather Beneficiation Park is seen as important for the leather industry as it would ensure that Botswana moves from exporting raw leather to finished leather goods. It is said research has established that there are plenty of hides and skins in the country from the three million cattle and 1.8 million goats.
Meanwhile, Milk Afric dairy farm project which was expected to be complete by the second half of 2018, is in the wilderness after the initial partnership between Botswana Development Corporation (BDC) and Milk Afric failed to bear fruits. BDC has been searching for a new partner for the project. Once fully operational, the farm will produce a total of 21.9 million litres or one third of the national milk demand, which is 65 million litres a year. At present, Botswana imports over 58.8 million litres from South Africa at a cost of P345 million annually.
The P120 million project is a Public Private Partnership deal between Lobatse Town Council (LTC), with 10 percent shareholding through leasing its 1375.4 ha farm for 25 years; and 26 percent (P40 million) by Botswana Development Corporation (BDC). When speaking at the groundbreaking ceremony held in Ramotswa, Masisi said, in addition to improving the water supply for domestic needs and livelihoods, this infrastructural development will facilitate major projects in the Lobatse region, which are critical to the ailing, old town.
“Our objective as a country is to align developments with the National Vision 2036 Pillar 3 on Sustainable Development, which recognizes water as a very scarce resource which requires strategic management by key players.” Botswana is a developing country with an increasing population, Masisi said, adding that an increase in population naturally causes exponential growth in the demand for water. This is a reality that Botswana is faced with and challenged to address for sustainable water supply, the President said.
He indicated that this is why they are continuously witnessing major water projects undertaken by government, in collaboration with key partners. “Gaborone and surrounding areas have been experiencing an acute water supply deficit due to infrastructure that has outlived its potential to meet the growing demand for water by citizens. This particular project entails the construction of a Pump Station at Forest Hill in Gaborone, a 57 kilometre pipeline from Gaborone to Lobatse and a new Northern reservoir.”
The project, awarded China State Construction and Engineering Corporation/Van and Truck Hire Joint Venture at over P1 billion, is currently at 49% of its completion stage. There are 637 jobs created by this water project. “The transmission pipeline will convey 63 million litres of water a day from Gaborone to Lobatse. This is a great improvement compared to an average supply of 14 million litres of water that has been supplied to Lobatse, Borolong and surrounding areas,” Masisi said.
The United Nations Committee on Human Rights has taken Botswana to task over what it considers to be discrimination laws against lesbians and gays and delay in prosecuting suspects in the infamous Sebina defilement case. The Botswana delegation led by Presidential Minister Kabo Morwaeng found itself against the wall before the United Nations Human Rights Committee of experts in Geneva, Switzerland.
First to take Botswana head-on was the UN Committee member, C SOH, who noted that the recent ruling of the High Court pays particular attention to the penal code penalising same-sex sexual conduct as it found that it infringed on the constitutional rights, dignity, liberty and privacy of the LGBTI persons (lesbians and gays). “Nonetheless, I note with deep concern that those discriminatory provisions of the of the penal code remain in effect and regrettably the government stated in its periodic review before deciding whether or not to repeal section 164 it would still await the final determination of the court of appeal in the case of Motshidiemang vs State,” said Soh.
According to Soh, “This statement makes us cast doubt on the will of the government to vigorously” strike out section 164, which criminalises sex between people of the same sex. “In this respect, I would like to ask the delegation to explain what the intended goal by the government was when it filed an appeal against the unconstitutionality ruling of the High Court,” he said. Soh said the Botswana Government had also explained that no persons had been convicted under this provision, section 164, ever since the penal code was enacted.
“However, media reports indicate that in August 2016, the government of a Gaborone Magistrate Court sentenced a man three years in prison who had been charged and convicted under section 164 for engaging in unnatural acts. Can the delegation explain these discrepancies relating to persons who have been convicted and sentenced under section 164 of the penal code,” he said. He also wanted the Botswana delegation to explain how the government addresses how customary courts have been discriminating against LGBTI persons.
Another member of the UN Committee, Duncan Muhumuza, expressed concern that the Directorate of Public Prosecution (DPP) has taken more than four years to prosecute suspects in the Sebina saga in which a councillor was alleged to have slept with a student who was also a minor. Replying to concerns raised by the UN experts, Mogakolodi Segwagwa, chief state counsel at the Attorney General Chambers, noted that one of the UN committee members has “become fearful that the fact that government appealed the case could be a sign that there is lack of will or doubt on the part of the government as to abolishing or outlawing of same-sex relations.”
“But I would like to assure the panel that Botswana has over the years proved itself at all times to be compliant with court orders. There are many examples I could put forward where the government had to make sure that court orders were executed. That is the assurance I can give out to the committee,” said Segwagwa. He said there was a good reason for appealing the decision of the High Court in which it outlawed section 164.
“This was a High Court decision, and as you know in our jurisdiction when a judge is at the same court with his brothers and his sisters and fellow judges, whatever decision he puts out so far as that particular court is concerned, it is not law because it is not binding on his fellow brothers and sisters and it is not binding on fellow judges,” explained Segwagwa. He added that “It is merely persuasive so much so that some other judges may choose to when a similar case comes before him or her, depart and ignore the position that that particular judge espoused, and he or she can do so with ease.”
Segwagwa further explained that “There was a very pressing need for this matter to be appealed to the Court of Appeal for purposes of crystalising the law and for purposes of ensuring that if there is any aspect of the law that the High Court had overlooked in arriving at this particular decision, then such an aspect can be taken into consideration by the Court of Appeal.” “So we are waiting for that judgement, and once it comes, it will be implemented. I take it that the committee would like the Court of Appeal to uphold the decision below and strike out this particular section.”
He assured the UN experts that when the High Court struck out section 164 in 2019, the country did not erupt into violence, adding that this was an “indication that we don’t have anything against people of LGBT. They are our brothers and sisters, and we co-exist with them.” Regarding the Sebina saga, Segwagwa said the painful case “where this councillor was said to have had sexual intercourse with a child is the police dealt with a matter as it is the law and we all know that the police are bound by their Act to do so without fear and prejudice.”
He said Upon completion of their investigation, “the matter was handed over to the prosecuting authority, as Mr Muhumuza had indicated, it has been four years and we concede that four years is a long time and that it is unreasonably a long time and that it defeats the whole adage that justice should be sweetest and freshest so much so that the case needed to be speeded along.”
He added that “But the problem we have which is not a problem in the sense of it being a problem, but the impediment we have in the sense that the Constitution created the Office of the Director of Prosecutions under section 51 subsection A and if you go to that particular section and you read subsection six, the director shall not be subjected to the control of another authority.”
Segwagwa said, “this is the section that was inserted in this constitution to safeguard the independence of the Director of DPP to ensure that he or she prosecutes matters without fear, favour and prejudice and it presents impediment where we can’t try and say to the DPP, go and register or indicate your position now, tomorrow or next year and that is why it has taken all this time, but we believe attempts are being made that it finds its way to the court.”