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Gaborone is a faceless city – report

A revised Gaborone City Development Plan 1997-2021 indicates that urban form and character of Gaborone has generally been perceived as not pleasing nor conducive to vibrant urban living.

This is because Gaborone as a city does not have an established urban design framework to be used and adopted in making the city liveable; functional; and to have a robust urban form and character. Local character has been identified as lacking. Though the radial plan of Central Gaborone gives the city its strongest identity, Gaborone is a sprawling city of walled streets which lacks character. These results in a faceless city, which lacks monuments and landmarks, and ultimately in an illegible city.

There is a conspicuous absence of heritage buildings, monuments and purpose built land marks. Urban block sizes in Gaborone are often excessively large, thus reducing the element of connectivity in the city. The cul-de-sac system has rendered the urban tissue impermeable and urban nodes are not easily linked, often providing poor choice of routes.

In addition, Segoditshane River and the railway line that bifurcate the city impede easy connectivity’s and the railway line further limits easy accessibility into the planned Central Business District CBD. Further, the report indicates that Gaborone displays a strong separation of uses and there are virtually no mixed uses vertically. This often results in the death of central areas after business hours and this is evident in the Main Mall and Government Enclave.

Planning and design of Gaborone urban tissue could not be expected to have anticipated the need to adapt to other uses due to the overemphasis on separate zoning. To revitalise some areas of the city at specific times; there is the need to introduce other uses that may bring activity at odd times. Public places like streets, squares and parks in Gaborone are often bordered by perimeter walls rendering the spaces faceless and unsafe to utilise.

On land use dispositions, stakeholders differed on whether Sebele should be retained as agricultural land or it should be converted to urban use. Some preferred its conversion to urban use because of its proximity to Gaborone and to address the issue of land shortage. Those who favour the retention of Sebele as agricultural land point to the environmental desirability of green areas in the vicinity of urban areas.

In cases like this where there is conflicting views as to what use a land should be put to, other factors such as the principle of best and highest use of land normally applies. In this case, consideration should be given to issues of capacity utilisation, return on investments, and number of beneficiaries as well. A case for utilisation of portions of this land for urban developments is later made in this plan.

Land shortage is still the main issue in Gaborone and attempts by Government to acquire the tribal areas lying around Gaborone has not been fruitful as local communities demand a better deal than what the state is offering. A CBD has been planned and fully serviced but remain largely undeveloped. A number of shopping malls have since sprung up in other parts of the city- Game City, River Walk, Molapo Crossing, West gate Mall and Fairgrounds Mall. This is seen as a contributing factor to the slow pace of developments of the CBD.

There have been a significant number of land use changes from urban use to another in Gaborone. Single family residential to multifamily residential uses accounted for 47% of the changes between 2000 and 2006, and residential to commercial accounted for 22%. This leads to increases in population densities often linked to frequent blockages of sewages pipes and traffic congestion in the areas where major land use changes have taken place, like in the central Gaborone area, without a corresponding upgrade and infrastructure capacities.

The informal sector trading activities are a major concern in Gaborone since they operate in an unregulated and uncontrolled manner which tends to blight the city. They account for a total number of 2883 of which 60% are owned by women and 40% by men. Most of these activities are around residential areas, malls, bus stations and industrial areas. They are an important part of the economy of Gaborone and any attempts to regulate, regularise or assist this sector must seek not to destroy this strength but to enhance it.

The practice of urban agriculture is not given prominence in Gaborone. In the face of inflation and escalating food prices, it is now time for Gaborone as a city to seriously embrace urban agriculture. Farm subdivisions main issues of concern include lack or inadequate coordination between various land owners and developers and failure to set aside land for infrastructure facilities (roads, sewages and electricity), as well as for civic and community activities. Each subdivision is carried out individually, at different times and without any guiding framework or structure plan. Furthermore, those subdivisions taking place up stream of the dam, impact negatively on it.

The proper development, use and management of open spaces in Gaborone city is an issue because of the fact that over 90% of the open spaces in the city have remained undeveloped and ill-managed. This has resulted in the open spaces being unkempt and used as refuse dumping areas by residents, although there is the Gaborone city landscape master plan prepared by GCC which has remained largely unimplemented.

Tourism development activities in the city are at infancy stages despite the potentials that abound in this sector. It can transform the image of the city and make it to the outside world. Gaborone only serves as a transit point for international tourists visiting the major tourism destination sites in the Okavango Delta and Kasane. Gaborone has other potentials to provide diversified tourism products in the areas of theme parks and entertainment; culture and heritage; hotels, events management and conferences, as well as from the 2010 FIFA world cup tournament in neighbouring South Africa.

The CBD plots are lagging behind in their allocations and developments. The general public’s perceptions of the CBD plan is that the CBD is wrongly located (in view of the prevailing site constraints), the plots are expensive, and the developments standards are stringent.
In terms of size and geographical location, Gaborone has no land for future spatial expansion. Its present boundaries are unable to accommodate the ever increasing population and providing for the various land use categories. The situation has led the statutory boundaries between the city, Mogoditshane and Tlokweng being blurred as a result of a contiguous conurbation that has been formed.

There is an imbalance in the distribution of services, infrastructure and investments in Gaborone and its immediate region. This is because Gaborone acts as a pull factor for employment opportunities and investments, hence the bias in favour of Gaborone. This calls for policy initiatives aimed at realising the objectives of the NSP. South East District’s land under its jurisdiction extends to areas within the confines of Gaborone. This poses jurisdictional issues in the areas of provision of services and development control.

At the same time, areas around Gaborone serve as satellites to the city and they are part of the city’s labour and commercial markets. The issue here is whether this trend is desirable as a way of tackling growth management problems facing Gaborone, or should efforts be made to boost the economic and social environments of the satellite villages so that they grow and develop in their own rights without being tied to the city’s apron strings.

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BONELA speaks on same-sex decriminalization case

18th October 2021
BONELA

In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy. 

The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.

However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world.  The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.

Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.

“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.

The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)

Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.

“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.

“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.

“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.

“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”

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Masisi warns Gov’t officials

18th October 2021
President Masisi

The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.

For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.

In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.

According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.

In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled.
Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.

Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects.  During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies.  Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).

 

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Guma’s battle for millions of Pula give Court headache

18th October 2021
Guma Moyo

A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination.  The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.

The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.

Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.

He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful.  Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.

But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB.  FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.

Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.

Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB.  “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.

The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).

FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders.  Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.

In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.

But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings.  “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.

FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries).  The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?

“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.

“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.

He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”

“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.

Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.

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