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5 Court of Appeal judges weighs-in on the principal residence saga

A Court of Appeal (CoA) panel of five judges; Justices Isaac Lesetedi, Monametsi Gaongalelwe, Leatile Dambe, Singh Walia and Zibani Makhwade have weighed in on the controversial issue of determining the principal residence of electorates in Botswana.

The Judges concurred with Justice Walia when delivering the oral arguments in court this week in Gaborone that this principal residence issue is only unique to Botswana as many Batswana have more than one residencies. “This is only peculiar to Botswana. In the context of Botswana, there is always been more than 1 residents, hence emphasize of a principal residence,” he said. 

He continued: “remember we are dealing with what principal residence means. What are the guidelines of determining a principal residence? Is it just a matter of occupation? What did the law giver intend to do? If you have more than one, you then go for the principal one, and what does that mean?”  

The matter came after one Mothusi States Maribe appealed a High Court ruling in the principal residence case which was in favour of Sefhare/Ramokgonami legislator Dorcas Makgatho. The objection in essence is that Makgato is not registered at her “principal residence” with the meaning and context of section 67 (3) a. of the constitution. Maribe, the objector has queried the registration of Makgato as an electorate on the basis that she has registered at Bobedi in Chadibe while her principal residence is Gaborone where she is staying permanently because of work.

The appeal came as a result of the High Court ruling recently that voters are entitled to select which one of their several residences, as it’s a norm in Botswana, they deem most important for purposes of registration for elections. “Therefore the appeal comes subsequent to the Court a quo’s decision to interpret the word ‘residence’ and to further decide that voters with more than one residence are entitled at law to choose which residence they prefer to in registering for elections,” the lower court, had ruled.

The grounds of appeal for Maribe is that the High Court has misdirected itself and erred in law and in fact in determining in Makgato case that principal residence basically means a voter’s most important place of residence.  Maribe also, in the appeal, queries the Judges conclusion that: “the principal residence under section 67 (3) of the constitution means that prospective voters are entitled to select which one of their several residences they deem most important for purposes of registering for elections.”

He also stated in the court papers that the High Court also erred in law and in fact by determining that it is the voter who at the end of the day elects which one amongst Makgato’s residences, she considers to be principal residence for purposes of registering for the elections.
According to the court papers, the appeal is also centered around the court a quo judges’ erring in law by determining that Makgato has clearly established through her affidavit, her historical, social, cultural sentimental and family bonds and that explains why she registered to vote thereafter.

“They also erred at law and in fact in determining that Makgato is a parliamentary candidate when same does not appear ex facie the pleadings,” Maribe through lawyer maintained in the court papers. He is also appealing the ruling that although section 10 (3) of the Electoral Act empowers the registration officer to determine the entitlement of the prospective voter at any particular polling station, in the case of a voter having more than one residence, such a determination would entirely depend on the voter’s preference.

In the heads of argument, attorney representing the appellant (Maribe), Martin Dingake of Dingake Law Partners submitted that the constitutional requirements of section 67(3) a. of the constitution of Botswana, at simple, to register at the principal residence, and must be found to mean what it means. “Having more than one residence, you will register and be allowed to register only at your principal residence, and not any place of your choice,” Dingake pointed out in the papers.

He continued to point out that it must be emphasized that the place where one feels most connected to, historically, socially, culturally, sentimentally or even where their family arises cannot be a factor used to determine their principal residence. “It therefore remains to be a place where a prospective voter mostly reside or where she spends most of her time,” he maintained in the heads. 

The attorney stressed that therefore a prospective voter, in this instance Makgato, cannot therefore elect which of her several residences she would prefer registering at for elections as that would mean that they are usurping and acting contrary to the role of the registration officer as empowered by section 10 (3) of the Electoral Act. In reply, the respondents (Makgato)’s lawyer, Simwe Petuho Mwinya who is a senior partner at Kebabonye Mwinya attorneys then highlighted that constricting electorates (Makgato) their right to vote in a place of necessity is against the public interest.

“I therefore submit that the application of the literal rule will result in the deterioration of the ‘true intent and spirit’ of the constitution. This affecting Makgato, the public at large and the future generations,” he stated.  He further said that the current socio-economic context in 2019 is quite different from the time that the constitution was written, or better yet, amended. “The law is ever evolving to suit the people in the time that they are living, thus it can be concluded that the purpose of the law is to represent the spirit of the people living in that time,” Mwinya explained.

It is the Mwinya’s submission that the right to vote which in this jurisdiction is granted and defined by the constitution, is so fundamental that a broad and liberal interpretation must be given to it. He stressed: “it is therefore our submission that the courts’ interpretation should be tied to a person’s state of mind with respect to where that person regards as ‘home.’ Where they have a social interest.”  According to the attorney, the essence of people returning to their home villages is to choose the person who would in their eyes would enrich and better the village and the community as a whole.

“Restricting a person’s right to vote to their ‘principal residence’ using the literal rule of statutory interpretation, would limit their right to vote in constricting them to that particular place, bettering the constituency of another at the detriment of the place they regard as home,” he highlighted. Thus, he added that taking away their right to contribute to the development of their village which is in essence what voting is, is wrong. 

“A person voting in a place that they do not regard as home but have instead made it a residency should not constitute a vote more especially where their right to vote is needed, indeed where they believe that they are from, the place they call home,” he concluded.  
Meanwhile, the 5 empaneled CoA Judges then reserved a ruling to the 23rd August 2019.

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No end in sight for Nam, Botswana borderline feud

27th July 2021
Namibian-report

Despite the President Dr Mokgweetsi Masisi and his Namibian counterpart, Hage Geingob giving an impression that the borderline security disputes are a thing of the past and that diplomatic ties remain tight, fresh developments from Namibia suggest otherwise, following Geingod’s close confidante’s attack on Botswana and its army.

Giving a Zambezi region state of the affairs last week, a Geingob-appointed governor of Zambezi region, Colonel Lawrence Ampofu, a retired Colonel in the Namibian Defence Force, former plan combatant during the liberation struggle of Namibia, in a written speech, charged at the BDF and condemned their killings of the Namibians as unacceptable.

“The security situation within our borders remains calm. The incidence of the Botswana Defence Force shootings and wanton killings on the Nchindo Brothers on 05 November 2020 and other 37 Namibian lives lost since independence remain a serious challenge with our neighbor, Botswana.

Our residents living along the Chobe, Linyanti and Kwandu rivers are living under constant threats, harassment, fear, intimidation and killings and such activities are condemned and not acceptable,” he said under the safety and security title.

The attack suggests that Namibia has not bought Botswana’s story. Ampofu was part of the entourage that accompanied Geingob to the three Nchindo brothers and their cousin who were gunned down by the BDF, and is reported to be privy to the details of the unpublished Botswana-Namibia joint investigations report about the killings as a governor or political head of the region which has eight electoral constituencies.

The report contains the sensitive details of how the three Namibians referred as poachers by the BDF – and Fisherman by the Namibian government were gunned down on 5 November last year along the Chobe River.  They were Tommy (48), Martin (40) and Wamunyima Nchindo (36), and their cousin Sinvula Muyeme (44).

His views are not really in contrast to his President’s views who also described the BDF as trigger happy in a scripted report to his cabinet.

The Zambezi region is located in the extreme north east part of Namibia and covers a total of 14,667.6 square kilometres. “We share borders with Angola, Zambia to the north, Zimbabwe to the east and Botswana to the South,” he said.

Sampofu was first appointed governor of the former Caprive Region in 2010 by the former Namibian president, Hifikepunye Pohamba and was reappointed as Zambezi governor by President Dr.Hage Geingob in 2015, a term running to 2025.

37 Namibia residents killed by Botswana army so far

Sampofu is a man who continues to insist that Botswana has killed 37 residents of his region. A video posted by the Namibian Broadcasting Corporation (NBC) shows him alleging that at least 37 Namibians were killed by the BDF, after he met with the community at Impalila.

“It is true, the BDF started long ago. As we speak 37 lives have been lost here in Impalila along the Chobe river going to Linyanti and Kwado rivers up to Lizauli. All those families lost their loved ones,” Ampofu said in the video posted by NBC.

It is not known how the BDF, which has maintained their position that the Namibians were engaging in illegal activities of poaching, treats the constant attacks by the Namibian authorities, but they have repeatedly vowed to continue protecting the country’s sovereignty and natural resources.

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Masisi gives KBL the “middle finger”

27th July 2021
President Masisi

Botswana’s premier brewer and leading distributor of beer, Kgalagadi Breweries Limited (KBL), this month dragged the government of Botswana to court after President Mokgweetsi Masisi imposed an alcohol ban with immediate effect. KBL labelled the decision as unjustifiable, irrational and that it overrides the rights that are enshrined in the constitution.

This week, Masisi through attorneys representing the government disparaged the case in his written affidavit of KBL’s application, referring to it as frivolous and that it ought to be dismissed with costs on a punitive scale.

In his court papers, Masisi reminded KBL that Botswana is a Republic whose laws find validity from the constitution, and in terms of Section 17 of the constitution the President is empowered to declare a State of Emergency and that it is a common cause that Botswana is under such state.

“It is common course that there is in existence emergency powers (Covid-19) Regulations 2020 as amended from time to time which is solely designed to regulate the Covid-19 pandemic,” he said.

Masisi pointed out that he denies that the application before Court is proper such as to challenge the lawfulness and validity of a regulation made and a notice published in the exercise of a legislative function in accordance with the Emergency Powers Act which empowers the President to make regulations as appear to him to be necessary and expedient for securing public safety.

Furthermore, the President revealed that the decision to ban alcohol sales was not arrived at willy-nilly, but rather that there had been careful considerations that the risks posed by Covid-19 had increased and therefore it was expedient and necessary to suspend all liquor licenses.

Moreover, Masisi denied that the decision to reinstate the ban should be made by the Director of Health Services as indicated by KBL in their nature of the application, “the Director is to cause the notice to be published in the Gazette after consultation with the President.”

Masisi indicated that the role of the Director of Health Services is to publish a regulation made by the President.

He further, reminded KBL that the power to make regulations in a State of Public Emergency in accordance with the EPA lies with the President, “such power includes the amendment of any enactment, suspending the operation of any enactment or modification of an enactment.”

According to Masisi, his decision to ban alcohol sales was based on evidence provided by the Director of Health Services who indicated to him that there was a sudden spike in the transmission of the Covid-19 virus following the reinstatement of liquor licenses.

Another piece of advice tendered by the Director of Health to Masisi was that bars and other liquor outlets were some of the major hotspots in the sense of such being high-risk areas at which the virus spread rapidly.

“Alcohol was one of the major causes of non-compliance with the health protocols that were put in place to control the spread of the Covid-19 virus. Further, there was an indication that more arrests were made on people failing to adhere to Covid-19 protocols more particularly at places where there were gatherings,” he contended.

He pointed out that therefore, it was expedient and or necessary to preserve lives and to reduce the risks of transmissions of the virus to reinstate the suspension of liquor licenses.

Moreover, the President says that it must be noted that he avers that the Director of Health Services is a credible source on matters of public health of which he also accordingly gave due weight to the Director’s advice on deciding to reinstate the ban through the impugned notice.

“I am aware and was always aware at the time of promulgating the regulation complained of that it shall negatively affect some sectors of the economy. However, after due consideration and receipt of advice, I decided to give priority to the safety and health of the nation,” Masisi said.

He presaged KBL that it would not be prudent and in the best interest of the nation to ignore a health emergency such as Covid-19 and gave preference to trading and making of profits by the applicant. “The results would only be catastrophic to the extent that when we emerge from the scourge we would be left with a depleted and ailing nation from Covid-19 and its side effects.”

Furthermore, his written affidavit further pointed out that the decision to reinstate the ban on alcohol was taken notwithstanding understanding and appreciation of the economic hardships that would befall the country.

However, he said he deliberately made the decision based on the evidence provided to him by the Director of Health, whose evidence he believes to be credible to give public/safety and health priority over economic considerations in some sectors.

In making the decision, Masisi states that he was and considered different options including allowing for sale of alcohol consumption off premises, however the evidence he had been provided with suggested that such other alternatives would not achieve the overall objective of securing public safety and health by reducing the risk of the spread of the virus.

“By the time I imposed the ban, alcohol was already being sold for consumption off-premises. This did not work. The information provided to me by the Director and the Presidential Task-Force team demonstrated that consumers purchased alcohol and then loitered and consumed it within the peripheries of bars and other liquor outlets,” he said.

Attached to the affidavit as emphasis, were photographs and videos of Gaborone West, Phase 4 in mid-June 2021, which he explains circulated on social media and was brought to his attention.

“I need not say much about the photos as they depict a crowd exceeding 50 gathered at the parking area of a bar. There is little or no regard to Covid-19 protocols. It was clear to me and my advisors, including the Director of Health Services and members of the Presidential Task-Force team that the total ban of alcohol was necessary to manage the risk of increase in infections, to understand what seems to have led to an increase in the risk of infection when alcohol is present I was advised by the Presidential Task-Force team that scientifically there has been evidence that alcohol narrows physical distance,” he argued.

Masisi says that allegations made by KBL are serious allegations of infringement of fundamental rights yet they fail to state how imposition and reinstatement of the suspension of liquor licenses out of necessity and expediency of the health of the nation infringes on the rights as alleged.

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Gov’t gives parallel statements on COVAX

27th July 2021
COVAX---lelatisitswe

In  an embarrassing turn of events that depicts disintegration in government communication on the fight against COVID-19, President Mokgweetsi Masisi and Assistant Minister of Health & Wellness, Sethomo Lelatisitswe gave two conflicting statements on the same matter, same day, just minutes apart.

The Commander-in-Chef told health practitioners and residents in Ramotswa that the COVAX facility has scammed African countries after billions were paid in a crowd funding effort to procure COVID-19 vaccines in bulk.

“We have pumped money as developing countries of the African continent into the COVAX Facility but the returns were not satisfactory, they cheated us,” the President said in Ramotswa.

According to President Masisi, the COVAX facility Vaccine only came in bits and pieces, frustrating the continent ‘s head immunity targets amid rapidly spreading Delta Variant which is currently reversing all progress made by Africa in containing the contagious virus.

“What we are getting is very small portions of the vaccine, they keep telling us that there is shortage of supply, this is not fair, but we have paid in advance, however what can we do, we have no choice but to spend more  money and look for other avenues of securing other available vaccines,” he said.

Meanwhile in Gaborone, Assistant Minister of Health and Wellness told Parliament that vaccine from COVAX facility is anchoring Botswana’s vaccination program.

“I am not aware of such information that COVAX facility is not delivering as expected, we are actually bolstered by COVAX facility in this country,” he said responding to a question from Mahalapye West Member of Parliament David Tshere who is also Chairman of Parliament Committee On Health and HIV/AIDS.

“We have received doses as ordered from the COVAX facility, and we are still receiving more, I have not seen that information which is purported to have been revealed by the President, unless its new information, we as the Ministry we are not aware of any frustrations by the COVAX facility,” he said.

COVAX is co-led by the Coalition for Epidemic Preparedness Innovations (CEPI), Gavi and the World Health Organization (WHO), alongside key delivery partner UNICEF.

Its aim is to accelerate the development and manufacture of COVID-19 vaccines, and to guarantee fair and equitable access for every country in the world.

The facility is a global coalition that works to ensure fair and equitable access of COVID-19 vaccines around the world. So far, 190 countries have joined the COVAX initiative, including all 22 countries in the Eastern Mediterranean Region.

The COVAX Facility aims to have 2 billion doses of COVID-19 vaccines available for distribution across the globe by the end of 2021, targeting those most at risk (e.g. frontline health workers) and most vulnerable severe diseases and death (e.g. elderly and people with co-morbidities).

On other vaccination issues President Masisi revealed, still in Greater Gaborone vaccination centre visits, that Botswana has placed orders with Pfizer, a United States vaccine producer noting that they have promised to deliver next year.

Meanwhile, government kick-started phase two of the Covid-19 vaccination program this week, opening up for ages between 30 and 54.

President Masisi revealed that this was done because some elderly were reluctant to be inculcated.

“We can’t take forever trying to convince people to take vaccine, we moved to the next age segments because we cannot afford to have vaccines-which are already in shortage supply to just lie there,” he said.

On Friday, Ministry of Health revealed that it was receiving large numbers of people below the age of 55 lining up to be vaccinated.

In a statement the Ministry of Health said it, “acknowledges the huge turnout that marked the commencement of the Phase two COVID-19 vaccination program”.

Given this high turnout, especially in the Greater Gaborone region, the ministry announced an extension of operation hours in order to serve the huge crowds that had come for vaccination.

Of the nearly 85 000 doses that were being doled across the country as first doses, the majority of the Greater Gaborone vaccination sites were already getting depleted by 1800hrs on 22 July 2021.

As a result of this development, the ministry took a decision to discontinue the extended hours of operation announced yesterday for vaccination sites in Gaborone.

This means that vaccination sites in Gaborone and elsewhere in the country which still have some vaccines, will offer them in the normal working hours and days of the week.

The Ministry says it appreciates the great desire to be vaccinated shown by thousands of citizens and residents of this country and wishes to assure them that it will continue to expedite their vaccination every time vaccines become available. As has been communicated in various fora, more vaccines are expected in August 2021.

As at July 2021, Botswana has so far received 62, 400 doses of AstraZeneca/COVISHIELD bought through the Covax facility, 30,000 doses of AstraZeneca vaccine donated by the Republic of India, 19, 890 doses of the Pfizer vaccine bought through the COVAX facility, 200, 000 doses of the Sinovac vaccine, donated by the Peoples Republic of China and another 200, 000 doses of the Sinovac vaccine bought through bilateral negotiations with Sinovac company in China.

“We encourage Batswana to remain hopeful that although it’s taking longer than anticipated, enough COVID-19 vaccines will eventually arrive in our country. We urge them to always strictly abide by all COVID-19 protocols so that they protect themselves and others from this deadly virus,” the ministry said.

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