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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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Motamma Horatius on politics and motherhood

13th January 2021
motamma

While it takes a lot to penetrate and thrive in the male dominated political space in Botswana, Block 3 Ward councillor Motamma Horatius, is one of the few females defying the odds.

Driven by passion, Horatius has always worn many hats and today she has become one of the few women who are thriving in the political space in Botswana. Prior to pursuing politics, she was an active participated in the creative space.

Horatius, a beauty queen, notably famous for her reign as Miss World Tourism Botswana represented Botswana in a television show famously known as Big Brother Africa. During her stay in the house, she got termed darling of the continent for an outstanding performance that promoted unity, humility and culture.

After serving for some time in public space, and making a name for herself as well as serving as a brand ambassador she decided to step in a career that will forever challenge her. This was after she had travelled the world and demonstrated her unique leadership skills and brilliance.

“I stopped and asked myself why am I not incorporating this brilliance back home. And wherever you go worldwide Botswana with all her faults is a beacon of hope in everything. And even successful countries came here to benchmark and implemented our policies and are flourishing such as Rwanda. So I decided to join active politics and go straight to the ruling party to add a youthful feel to an already existing force and help modernise it to serve better not from afar but from within,” she clarified.

“So my ample experience in civic leadership across countries around the world catapulted me to join active politics because I wondered, if I can do as much as an individual even across nations, how much can I do whilst in office, locally. And I chose to start from the ground up, in order to avoid leaving the locals behind.”

The stern and tenacious young leader, currently sit as the Chairperson of Finance Committee at Gaborone City Council, and also chairs Performance Monitoring Committee.

While a typical girl would dream of becoming either a nurse or choose a ‘girl’ orientated deemed career, she had a heart for politics from a very young age.  By the time she left the creative space, she had already made a name for herself, that she needed no introduction.

“I had to acknowledge first that I am a woman, and being a woman means you have to work 200 percent more than your male counterparts. So it took sleeplessness nights, and a massive amount of working smart to win legitimately,” she said.

She acknowledges that she faced a lot of challenges during the 2019 elections which she had to overcome through the assistance of her loved ones and family.

“Politics is expensive but I managed by God’s grace, family, friends, acquaintances and good Samaritans but my mind helped. I am a very good planner when it comes to execution,” she said.

“Another hurdle is, being a young woman, I had conceived during the time of primary elections; so campaigning whilst expectant, managing your emotions through betrayals, insults, stress, house-to-house then giving birth and having to hit the ground in less than two weeks having given birth via C-section, was a hurdle I overcame by God’s mercy and I am thankful to my family for helping me with the kids because politics means a lot of time away from home.”

“Another hurdle was to portray an all rounded culturally grounded Motswana woman soft but yet stern, respectful but can articulate issues well. Because even though we are civilized our society still upholds unwritten yet practiced values of what a woman is and what a man is, and if you defy societal expectations, it judges you harshly. But thankfully I remained focused on who I was and didn’t try alternate anything When I lost some of the original members of my campaign team. The pain was deep. But I wiped my tears. Soldiered on, and God increased twice the initial number.”

At some point she had to face demeaning words from other male contestants, but the best to do at the time was to shun negativity and stay focused. Male intimidation never tugged her down.

“My experience with 2019 elections was rather inclined to learning as it was my first time running for office as a politician, so I wanted to see if really hard work has results because I always hear stories of how people are bought,” she said.

“So since I was not buying anyone, I was on a learning curve to test my hard work style of delivery against what is believed out there. So it was exciting and again I say it was a learning curve as most NGOs fighting to increase women participation in politics were continuously training us.’

Despite everything she feels women political participation in Botswana is still low. She has pleaded with the media to cover them more often as she believes maybe it will help more women to run for office.

Botswana has few women in parliament, giving men dominance in policy decisions. In a 63-seat parliament, Botswana has only seven female MPs, four of them being specially elected lawmakers.

According to the 2019 edition of the biennial Inter-Parliamentary Union (IPU) Map of Women in Politics. Among the top African countries with a high percentage of women in ministerial positions are Rwanda (51.9%), South Africa (48.6%), Ethiopia (47.6%), Seychelles (45.5%), Uganda (36.7%) and Mali (34.4%).

The lowest percentage in Africa was in Morocco (5.6%), which has only one female minister in a cabinet of 18.

Other countries with fewer than 10% women ministers include Nigeria (8%), Mauritius (8.7%) and Sudan (9.5%).Other African countries with high percentages of women MPs include Namibia (46.2%), South Africa (42.7%) and Senegal (41.8%), according to the report.

Though a slight increase, Botswana is still lagging behind when it comes to women political participation.

According to a report made by IEC for the 2019 elections, there is 11.1% women representation in parliament. There has been a 1.6% slight increase from the 2019 election compared to the 2014 elections.

According to United Nations, there are two main obstacles that prevent women from participating fully in political life.

These are structural barriers, whereby discriminatory laws and institutions still limit women’s ability to run for office, and capacity gaps, which occur when women are less likely than men to have the education, contacts and resources needed to become effective leaders.

As it stands though, Botswana has continued to recognize gender equality as central to socio-economic, political and cultural development through its National Vision 2036.

Following the adoption of the National Policy on Gender and Development in 2015, the National Gender Commission was established in September 2016, to monitor implementation of the policy.

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Gov’t imposes austerity as financial year closes

11th January 2021
President Masisi

Government ministries and departments have moved to cut expenditure in the last quarter of financial year in order to survive the economic hardship occasioned by the covid-19 pandemic. Since the outbreak, Government and the private sector have been hard hit financially due to limited economic activity brought about by government response to fighting the pandemic.

In an urgent savingram by the Permanent Secretary in the Ministry of Local Government and Rural Development, Molefi Keaja addressed to all council secretaries and town clerks, the government informs that it is facing unprecedented budgetary challenges for Financial Year 2020/2021.

“This has necessitated measures to be put in place to conserve cash and ensure that government is able to honour its financial obligations in the remaining (3) months of the financial year,” said the savingram dated 24 December 2020.

The Government has cut all travel by Ministries, Departments and Agencies (MDAs) including State owned entities (SOEs) and Local Authorities until the next financial year in April 2021.
It has also taken a decision that all meetings, interviews, seminars, workshops, conferences, retreats, annual ceremonies and hospitality events should be conducted virtually, which save on the cost of securing venues, conference facilities and meals/refreshments.

“No replenishment of refreshments for the Executive Cadre (E2 salary scale and above) until the end of the financial year,” Keaja directed. Last year government also resolved that due to the financial effects of Covid-19 the government will no longer recruit for any jobs during the 2020/2021 financial year.

The Cabinet directed that the 2020/2021 provision for vacancies be withdrawn from Ministries, Departments and Agencies recurrent budgets to cater for supplementary estimates. According to the saving gram then by the Directorate on Public Service Management (DPSM) said the country faces fiscal challenges which have been accentuated by the emergence and the spread of the COVID-19 pandemic.

Amongst key ministries and departments affected were the Botswana Defence Force, National Strategy Office, Directorate of Intelligence and Security (DIS), Commissioner of Police, Commissioner of Prisons, Clerk of National Assembly and the Directorate on Corruption & Economic Crime (DCEC).

It further deliberated that all various institutions that had begun recruitment for existing vacant positions be frozen for the remaining period of the 2020/2021 financial year. “Since funds for the vacancies will only be recruited in the next financial year 2020/20121, Ministries, Department and Agencies are advised to discontinue recruitment into such vacancies until 1st April 2021. Those who are already at an advanced stage of recruitment process are advised to withhold appointments until further notice.”

The Director of Directorate on Public Service Management (DPSM), Goitseone Mosalakatane, told the parliamentary Public Accounts Committee (PAC) in September that despite the high unemployment rate, they cannot hire for the posts because part of the funds have been withdrawn to fight the Coronavirus.

With just a few days into the New Year, Covid-19 seems to be taking its toll and its effects will be felt vastly in the long run. Countries worldwide, including Botswana are injecting in millions of money in the fight against the deadly virus therefore placing immense uncertainty on country’s economy.

When delivering his speech at last year’s State of Nation Address President Mokgweetsi Masisi said during 2020, the domestic economy was expected to contract by 8.9 percent indicating that this is attributed to an expected sharp decline in major sectors such as mining, (minus 24.5 percent); trade, hotels and restaurants (minus 27.4 percent); construction (minus 6 percent); manufacturing (minus 3.9 percent); and transport and communications (minus 2.5 percent).

However, he assured that the economy is expected to rebound during 2021, with overall growth projected at 7.7 percent. The anticipated recovery will be driven by a rebound in growth of some major sectors such as mining (14.4 percent), trade, hotels and restaurants (18.8 percent), and transport and communications (4.2 percent).

Furthermore, Masisi pointed out that the recovery will also be supported by the Economic Recovery and Transformation Plan currently being implemented by Government. “It is critical to note that these projections are dependent on, among others, the duration of the COVID-19 pandemic and related restrictions.

These containment measures have the effect of reducing spending by firms and households and causing supply-chain disruptions. Beyond this, the recovery phase will be influenced by confidence effects on households and businesses; sectoral transformation and changes in work patterns; as well as prospects for the recovery of global financial markets and commodity prices.”

Emphasising this, he explained that despite the challenges of COVID-19 there still remains the delicate balance of opening the economy whilst containing the disease burden. “Inflation according to the latest data from Statistics Botswana, inflation fell significantly from 2.2 percent in September 2019 to 1.8 percent in September 2020, remaining below the lower bound of the Bank of Botswana’s medium-term objective range of 3 to 6 percent,” he said.

The significant decline in inflation mainly reflects the downward adjustment in fuel prices in June 2020. However, inflation may rise above the current forecasts if the international commodity prices increase beyond current projections and in the event of upward price pressures occasioned by supply constraints due to travel restrictions and lockdowns.

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BDP readies for Congress

11th January 2021
BDP congress

The Botswana Democratic Party (BDP) last year had to cancel its elective congress due to the strict measures that had to be put in place due to Covid-19 pandemic outbreak.

Two other party events Women’s Wing Congress including the much anticipated victorious election celebration were also postponed due to the pandemic as gatherings were cancelled indefinitely.
However the BDP is adamant that the party will be able to hold its National Congress and all other events that had been frozen this year.

Speaking to this publication chairman of BDP Communication & International Relations Sub-Committee Kagelelo Kentse said that the party was readying itself for the congress with the main objective being to review resolutions that were taken at their 38th National Congress in Mochudi in 2019. Emphasising this, Kentse said it was commendable that most of the resolutions taken in 2019 have by far been fulfilled.

Moreover, he said it would mean a lot for the party to be able to meet at the congress, this he said would give them the opportunity to introspect and reflect with regards to their manifesto. In 2019 the BDP made about eleven resolutions of which five of these were resolved and gazetted. The abridged resolutions were that the amendment of the law to allow agricultural land owners to use up to 50 percent of their land for non-core purposes, to amend the law to cancel transfer duty on property transferred between the spouses.

President Masisi also passed a law to allow married couples to be independently allocated land and increase threshold for non-payment of transfer on property acquired from P250k to P750k. On the resolution in the tourism sector, Kentse said efforts are very advanced to have local play a part. He said there is ongoing work with the Ministry of Lands on concessions that will be allocated to citizens.

According to the BDP communications chair the Ministry of Tourism has availed more opportunities in dams for tourism thus far, having already issued expression of interest for Letsibogo, Dikgatlhong, and Gaborone dams. Citizens are said to have applied for tenders which are currently under evaluation. There are about 45 campsites set aside for citizens in game reserves and forest reserves for tourism.

The resolution on the declaration of assets and liabilities law which was passed and amended this year, was supported by all legislators including those from opposition. Emphasising this he explained that contentions were on issues to do with valuations, and leaders have started declaring.

With the Congress comprising of the elective congress, the BDP is yet to embark on it an objective Kentse said is on their to do list this year even though the calendar of events has not yet been made.
The elective congress has aroused interest, especially the Secretary General position which has attracted a number of participants of which observers believe will accord the incumbent, Mpho Balopi, the current secretary general, the opportunity to buy time if at all he will seek re-election in the position.

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