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Police to appeal controversial Moroka judgement on breathalyser

The Government, through Attorney General is preparing to launch an appeal against the controversial High Court judgement that in terms of the law — essentially validates drunken driving, Weekend Post has established.

The contentious judgement was delivered by Judge Lot Moroka, in the matter in which one Freeman Mapukule, was appealing a Magistrate ruling which had been made in favour of the Directorate of Public Prosecutions (DPP). According to Moroka, using the breathalyser name coded Intoximeter EC/IR, the police were using an unlawful breathalyser “not prescribed by the Minister” in accordance with the law, in particular Road Traffic Act (Cap 69:01). As a result thereof, Justice Moroka ruled this week: “the act of testing the appellant was as such a nullity. The result can therefore not stand.”

He further ruled that there is no evidence and the failure to provide the specimen of breath was without reasonable excuse, and consequently that the second count cannot stand. “In the final analysis, for the reason of the unlawful breathalyser and the latter grounds the appeal ought to succeed. The appeal against conviction succeeds in both counts and the following orders are hereby made: the conviction and sentence are hereby quashed and set aside in respect to both counts and the appellant is discharged and acquitted,” Moroka said in the judgement.

The offence of failure/ refusal to provide a specimen of breath is created by section 47 (5), of the Road Traffic Act. The section provides that: “a police officer may require any person who is driving or is in charge of a motor vehicle, to provide at any place which that officer may specify, a specimen of breath for analysis by means of a breathalyser of the type prescribed by the Minister.”  Has the Intoximeter CT/RS been prescribed by the Minister as permissible for use in Botswana for purposes of the Road Traffic Act?

In 2013, the Minister prescribed a new generation of breathalysers’ permissible for use in Botswana. This is Statutory Instrument No 95 of 2013. Section 2 of the Statutory Instrument provides that: “for the purpose of Section 47 of the Road Traffic Act, the breathalyser which shall be used for the analysis of specimens of breath, shall be any of the types of devices specified in the Schedule hereto: Alcometer, Intoxilyser, Drager Alcotest, Alco Sensor, Intoximeter, Lifeloc, RBT IV, Alcotech alert and Intox.”

Sergeant Phepheng had told the court that the type of instruments used to test the appellant’s alcohol level was the said unlawful Intoximeter EC/IR. Moroka appointed out in the judgement that; “this type of breathalyser does not form part of the list of breathalysers No. 18 prescribed for use by the Minister in terms of Statutory Instrument.”  Refusal or failure to provide a specimen of breath or blood is not unlawful per se. It is the failure and or refusal, without reasonable excuse that constitutes an offence.

A reasonable excuse would in the circumstances of Section 47 include; certifiable health reasons; injuries arising from an accident etc. Each case will turn on its own circumstances. The appellant attributes his inability to provide sufficient breath to health reasons. He did not refuse to provide a specimen of blood for alcohol testing.  This judgment seeks to clarify two critical issues around the use of breathalysers as used within the context of the Road Traffic Act (Cap 69:01) of the Laws of Botswana.

The first issue concerns the types of breathalysers’ permissible under the Road Traffic Act in Botswana. The second issue is concerned with the law on the offence of Refusal/Failure to Provide a Specimen of Breath Contrary to Section 47 (5) of the Road Traffic Act. What this judgement means for Botswana. A private attorney who preferred anonymity told Weekend Post that the judgement has brought controversy, and a problem has risen.

In terms of the law, he said the current High Court ruling on the matter for now takes precedence and as such motorists cannot take the breathalyser as the machines were not lawfully sanctioned. “Currently there is no control, as we enter the festive season, for drunken and driving and this therefore will create a problem. Motorists can now drive under the influence of alcohol, and no case can be registered at court on the same. It means anyone can drink and drive at this point without being charged for the presumed offence,” he stated.

It’s favourable for motorists imbibing on alcohol, but the country needs control systems to curb driving under the influence of alcohol. They should consider approaching Minister or appealing. They should get the machines approved or prescribed by the Minister. If the machine is not prescribed, their case has no merit since the machine has not been sanctioned. Contacted for comment, Botswana Police Service (BPS), Traffic boss Mosimanegape Katlholo could not be drawn into the matter.

“I cannot comment on the matter for now as we need to meet as Police to take an organisation position on the matter, otherwise I will be talking my personal views or opinion which I want to guard against,” he said. The alcohol testing came after the appellant was arrested by the Selibe Phikwe police following an accident in which the motor vehicle he was driving collided with an electric pole and fence, this after he lost control of the motor vehicle.

The police who attended to the accident formed the opinion that he was driving whilst under the influence of alcohol and asked him to accompany them to the police station for testing his breath for alcohol level. The accused agreed and upon arrival at the police station, the appellant was duly warned that he was required to provide a specimen of breath into an alcometer referred to by the Police officers who gave evidence at trial as Intoximeter EC/IR serial number 012623 (which is presently unlawful).

The accused blew breath into the Intoximeter but could not generate sufficient specimen for testing and reasons for the failure were not specified in the record of proceedings from the lower court. Police then warned and cautioned him of the offences of failure to provide a specimen of breath and that of driving without due care and attention. Consequently, he was tried and convicted of the two offences. He was duly sentenced to pay a fine of P 3 200.00 on count 1. He is appealing against the conviction on the count at the High Court.

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Sex on the Alter: Demons lurking within holy walls

29th September 2020
Sex-on-the-Alter--Demons-lurking-within-holy-walls-

From time immemorial the church was seen as a sacred haven for weary souls and those who need rest from worldly aches and pains. This is even written in the Holy Bible; “Come to me, all you who are weary and burdened, and I will give you rest.

Take my yoke upon you and learn from me, for I am gentle and humble in heart, and you will find rest for your souls. For my yoke is easy and my burden is light,” Matthew 11:28-30.

This being said, anyone would be forgiven to think that the first place to run to would be the church. Time has however changed this.

The atrocities perpetrated by the church and their pastors or those who have been called upon to ‘lead the flock’ have not only distorted their mission, they have caused followers immeasurable pains.

Adorned in the finest regalia in church, the so called men of God are nothing but wolf in sheep’s clothing as they lurk in church corners to prey on the innocent and vulnerable in a place where victims thought was their ‘Father’s house’.

Behind every monster are those who clean up after it and in this case, these are church followers who are alive to the inhumane acts caused by the very men of God whom they have put on pedestals. These followers, more often than not are Elders in the church or those in the revered pastor’s inner circles. These followers would, in an attempt to shield their ‘man of God’, portray the victim as a Jezebel, and shield their pastor and the church’s reputation, forsaking the trauma inflicted upon the victim.

The author of ‘Sex on the Alter’, Kaelo McCoffee was inspired to pen down his book after seeing the endless and unreported incidents that occurred within church walls.

It’s like a play, a drama based on true stories of how “men of God” abuse women sexually, use them and dump them.  Not just that, but it addresses how desperate women are for marriage and relationships, resulting in pain. This is covering ill activities happening in the church,” said McCoffee.

“The purpose of this book is to open someone’s eyes, not just ladies, even guys, that church might be seen or recognised as a good place to be, that might be true yes, but people shouldn’t feel comfortable because they are in church. They should be aware of the dangers that can happen to them in church, like I talked about abuse. I wrote this book to bring awareness, mostly to women because they’re the ones always going through such mostly.”

If one is to look at the grabbling GBV cases within Botswana that occur on a daily basis, one would expect the church to intervene. Not this time around, seeing as how the church is marred with such cases.

“I’ve seen young girls being used because they fell in love with the guy in a nice suit, they get deceived by material things, they get lied to, “I’ll marry you” but after sleeping with them, they leave them, young girls end up reporting cases of rape, yet the truth is they were in love, but because the promises weren’t fulfilled there’s always drama. Some get paid to be silent. I won’t mention anyone by names, but this is what has been happening in many churches, hearts are being broken in the name of the “anointed one”. I’m not saying every man of God, I’m talking about things I know of and I’ve heard happening,” he said.

“And to God it’s an abomination to drag His name into sin and claiming to be righteous, if God has promised in His word that His servants will even face more punishment for diverting His people into wrong doings then they deserve to be punished, they’re humans and they are not even doing what they preach. If the men of God in the Bible got punished for such doings what more of these guys who mess with our sisters.”

In an Interview with WeekendPost, the founder of Epistle of Power International Church (EPIC), Duncan Katse confirmed with this publication that these devious acts are very much present within churches and orchestrated by the so called ‘pastors’.

“It is true and one thing that makes it true is that we have got a lot of pastors who are not really trained in the area of becoming a pastor and there was no discipline instilled. Young ladies also trust their pastors and spiritual mentors with their all; their lives, their bodies. So when these pastors notice that they are highly regarded they can do anything. If there is no alignment in the mentorship, it is easy for the pastor to manipulate the congregants with spiritual things.”

“Some would say ‘God wants us to have our moment alone’, they will start manufacturing funny prophecies to make the person comfortable to relax with them. Sometimes in private spaces, which becomes very dangerous for a young lady. Not all the ladies who go to church have the intension of sleeping with the man of God. Most women do not report these cases because some judge themselves and are afraid to be accused for falsely accusing the man of God,” said Katse.

How women are raped in church

According to close sources, these so called ‘men of God’, threaten young girls after sleeping with them and that they will be cursed should they decide to speak out. Some will be threatened with the infamous line; ‘touch not my anointed.’

“They use their spiritual and prophetic authority to manipulate these women into raping them. There is also an oil called ‘do as I say’ and most of the girls who became victims will tell you, after being raped, they did not know how the rape occurred. Once they apply that oil, whatever they say you are going to do it whether you like it or not.  That is why most of these girls are raped and left sick because most of these men of God are sick. They are sick of HIV/AIDS and STI’s. Before raping these women they prepare them emotionally by taking them out for dinners and they end up raping them.”

Botswana Council of Churches responds

Sexual violence and abuse has been an enormously painful and common feature of our collective past. No sector of society, churches included, has been immune to the problem of sexual violence. It is horrible. Whenever we have seen sexual violence, it has always been an offence to God, and a shattering of God’s good, redemptive hopes for the human story. Sexual abuse is clearly a shattering of God’s intentions for our humanity,” said Bishop Metlha Beleme from Botswana Council of Churches

“When God’s ways are honoured, there is love, because love – the Scriptures tell us – is the very nature and character of God. When you think about it, sexual violence does all the opposite of 1Corinthians 13:4-7, which talks about love. God wants us to experience love. So, apart from the laws of the land, the Church also has Canon law and the Church court for the trial of such offences as Sexual Immorality.”

Beleme further highlighted that; ‘‘there are other healing processes that follow e.g. forgiveness and reconciliation, counselling. Amongst other things we can confess that Church Leaders and Pastors are sinners too, and must be held accountable,” he said.

Maybe when all is said and done, the long arm of the law will forever elude churches as evidenced by the many cases internationally regarding the Catholic church and the cases of paedophilia and child molestation that have been ongoing for years on end. And very rarely in Botswana do pastors face criminal charges in court for sex offenses and that may also be because very few women come forth for fear of being ostracised by both church and society.

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Parliament caucus: The toxic destruction of MPs’ legislative duty

29th September 2020
Parliament

Every five years, a cohort of newly elected Members of Parliament (MPs) gather at parliament buildings to take a symbolic oath to assume new role as rarefied individuals who make Botswana’s laws — as prescribed in the constitution — for the good governance of Botswana. Staff Writer ALFRED MASOKOLA observes an abdication of responsibility that has become a new normal in the business of parliament. 

Few days before President Sir Ketumile Masire cleared his desk at Office of the President to end an eventful and successful 18 year presidency, his apparent heir, Festus Mogae was reaching out to opposition legislators in a bid to solicit for support for his choice for Vice President.

Since 1997 constitutional amendments, parliament has been mandated with the responsibility of endorsing the Vice President before assuming office.

Mogae was scheduled to ascend to the highest position in the land in wake of series of events in the ruling Botswana Democratic Party (BDP) that made him the only viable candidate. Beleaguered by factions, Mogae could not count on his polarised party.

As many noted, Mogae was relatively a new entrant in the BDP politics. Though he was an accomplished technocrat, he was not a political power horse and was without the charisma that the likes of Daniel Kwelagobe, Ponatshego Kedikilwe and the late Lt General Merafhe had.

Luckily for Mogae, his choice for Vice President was a likeable figure — Lt Gen Ian Khama — and accepted across factional divide, and even more remarkably, by some in opposition ranks. The name was endorsed by all BDP MPs, and the cherry on top; by additional two opposition MPs.

The build-up to this accomplishment however highlighted one major thing that Mogae never took for granted — the legitimate power of MPs.

Even in his presidency, Mogae sought to use parliament caucus for the purpose of achieving consensus rather than imposing his own will. Throughout his presidency, Mogae had to navigate through the hostile factions that kept him on his toes.

In 2003, Mogae in what proved to be naïve, publicly endorsed his Vice President- Khama, in the party chairmanship race against Kedikilwe, the co-leader of what was then known as Kwelagobe/Kedikilwe faction, and later Barataphathi.

Inevitably, Khama won the chairmanship — a development that saw Barataphathi losing control of the Central Committee, for the first time since 1981. With victory in 2003, emerged a rebranded faction called A-Team, led by Merafhe and Jacob Nkate.

The faction will come to dominate both the Central Committee and cabinet after 2004 general elections. Mogae had left out Kwelagobe, Kedikilwe, and GUS Matlhabaphiri out of cabinet after 2004 general elections, inadvertently strengthening the backbench which closed ranks with opposition MPs to subject the executive to scrutiny.

At the height of exercising their power, the backbench blocked and rejected government policies and other pieces of legislation brought before parliament.

By 2006, cabinet found it difficult to pass bills, including the Judges Pension Bill and the crucial intelligence bill which created the DIS in 2007.

Faced with a rigid backbench, Mogae reshuffled his cabinet in 2007 restructuring ministries to accommodate members of rival faction in cabinet. Thereafter, the relationship between cabinet and backbench became cordial.

“I am fully aware that the MPs, both the former ministers, the cabal of some new MPs and the rest of the House, can make and unmake me politically,” Mogae famously said at 2001 BDP Congress in Palapye, as he deliberated on some of the demands brought forward by MPs.

Like anywhere else in democratic dispensations, MPs hold their own and are not pushovers, even in instances where the executive belongs to the same political party that controls the legislative house.

Mogae had accepted that MPs have their own responsibility and that their power was legitimate. Throughout his presidency, his modus operandi was to consult MPs through caucus whenever an important decision was to be made in parliament.

The approach was also the tradition during the presidency of Masire, the founding father of both the BDP and the nation. Masire considered therisanyo paramount prior to any decision making and was described by Mogae during his memorial as, “consultative, collaborative and patient.”

In 2008, things started to change. In recent years, BDP caucus has become increasingly powerful. Unlike in the past, instead of seeking consensus, MPs have been forced to support decisions of the cabinet, even when MPs are not in agreement.

“Caucus has always been there and it is part and parcel of parliament in democracy. Caucus can be flexible depending on leadership. Some issues are allowed conscience debate if caucus cannot reach consensus,” said a high ranking BDP member who served as MP under both Mogae and Khama.

“Mogae was liberal and allowed MPs to use their conscience when there was no consensus. Caucus only became a contentious issue during Khama [Ian] presidency and today.”

In 2011, weeks after civil servants called off strikes that lasted nearly three months, and crippled the economy, then junior minister in the ministry of Local Government, Kentse Rammidi resigned from the cabinet amid a position taken by the party.

In trying to deal with power of civil servants, cabinet brought before parliament a Bill that sought to prevent a number of cadres in the civil service including teachers from participating in industrial action by making them essential service.

Rammidi, who had sympathised with workers during the strike chose to quit the party after BDP caucus forced MPs to support the bill which was to be brought to parliament by then Minister of Labour and Home Affairs, Peter Siele.

The development set had ushered in a new era in the governance of BDP, with the Executive effectively rendering Parliament — which by all intent and purpose is meant to prove checks on it — a rubber stamp.

The BDP caucus effectively derives its mandate from President as the head of executive.

The latest victim of the domineering caucus is Jwaneng-Mabutsane MP, Reggie Reatile.

Two months ago, the maverick MP was slapped with suspension for abstaining instead of voting alongside agreed party caucus positions.

In the build-up to his suspension, Reatile had on numerous occasions voted against the BDP on the Parliament floor. Reatile also abstained when voting was called on the Botswana Defense Force (BDF) Amendment Bill meant to create the position of Judge Advocate General.

Reatile was also the BDP black sheep that voted against Speaker of Parliament, Phandu Skelemani’s decision to suspend Leader of Opposition (LOO) Dumelang Saleshando, from parliament last month.

Prior to Reatile, maverick Ignatius Moswaane, Francistown West legislator, was also suspended. Moswaane has also proved to be a thorn in the flesh of the ruling party as he consistently refused to toe the party line, instead following his conscience.

Moswaane has since resigned from the BDP in favour of Umbrella for Democratic Change (UDC).

The insistence on block voting have seen parliament being ultra-polarised, and inadvertently at the expense of the public and good governance.

Despite the country grappled with rising incidence of Gender Based Violence (GBV), the ruling MPs rejected a motion tabled by Mahalapye East MP, Yandani Boko, following a caucus decision.

Boko had tabled a motion on urgency calling for parliament to request President Mokgweetsi Masisi to set-up a Commission of Inquiry on Gender Based Violence (GBV) and other Sexual Offences.

During the BDP caucus, it was agreed that the motion should not be agreed upon, but instead be countered with a suggestion that the duty be referred to an Inter-Ministerial Committee.

Commissions of Inquiry Act empowers the President to set-up a commission and to set its terms of reference.

The motion was however withdrawn by the mover following lack of support from BDP majority.

The rejection of the motion is part of many that have not survived the might of BDP caucus.

In the run-up to 2019 general election, Masisi promised to repeal the infamous Media Practitioners Act passed during his predecessor’s administration. The promise was buttressed in the BDP 2019 election manifesto.

However, when Selibe Phikwe West lawmaker, Dithapelo Keorapetse, brought before parliament the same bill, the ruling party caucus tore it apart. In brief; it was rejected.

The constitution of Botswana, adopted in 1966 following independence, vests legislative powers in parliament. Parliament, through its committees is empowered to provide oversight.

Parliament, indirectly elects the President and also has power to dissolve parliament through a pass of motion of no confidence on government supported by simple majority.

Parliament also approves national spending and also entitled to amend certain provisions of the constitution, save for entrenched provisions.

In giving parliament the legislative duties, the constitution also gives the President the power to ascent to bills passed by parliament or return them to parliament if not satisfied. Nevertheless, if parliament insists on not making any amendments, the President is compelled to ascent to the Bill failing which parliament will lead to the dissolution of parliament, necessitating new elections.

With so much power at its disposal why is parliament abdicating its true responsibility?

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Gov’t urged to stimulate economies until 2021

29th September 2020
Gov’t-urged-to-stimulate-economies-until-2021-Women-are-amongst-the-most-vulnerable-and-hard-hit-groups,-including-migrants,-young-people-and-informal-workers

The latest edition of the International Labour Organisation (ILO) Monitor shows the continuing and devastating impacts of the pandemic on jobs and labour income since early 2020, and the massive disruptions in the labour market that will persist into the fourth quarter of this year.

ILO analysts argue that policymakers will need to maintain support to employment and incomes over the coming months and well into 2021, and to address key challenges.

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