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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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Masisi to dump Tsogwane?

28th November 2022

Botswana Democratic Party (BDP) and some senior government officials are abuzz with reports that President Mokgweetsi Masisi has requested his Vice President, Slumber Tsogwane not to contest the next general elections in 2024.

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African DFIs gear to combat climate change

25th November 2022

The impacts of climate change are increasing in frequency and intensity every year and this is forecast to continue for the foreseeable future. African CEOs in the Global South are finally coming to the party on how to tackle the crisis.

Following the completion of COP27 in Egypt recently, CEOs of Africa DFIs converged in Botswana for the CEO Forum of the Association of African Development Finance Institutions. One of the key themes was on green financing and building partnerships for resource mobilization in financing SDGs in Africa

A report; “Weathering the storm; African Development Banks response to Covid-19” presented shocking findings during the seminar. Among them; African DFI’s have proven to be financially resilient, and they are fast shifting to a green transition and it’s financing.

COO, CEDA, James Moribame highlighted that; “Everyone needs food, shelter and all basic needs in general, but climate change is putting the achievement of this at bay. “It is expensive for businesses to do business, for instance; it is much challenging for the agricultural sector due to climate change, and the risks have gone up. If a famer plants crops, they should be ready for any potential natural disaster which will cost them their hard work.”

According to Moribame, Start-up businesses will forever require help if there is no change.

“There is no doubt that the Russia- Ukraine war disrupted supply chains. SMMEs have felt the most impact as some start-up businesses acquire their materials internationally, therefore as inflation peaks, this means the exchange rate rises which makes commodities expensive and challenging for SMMEs to progress. Basically, the cost of doing business has gone up. Governments are no longer able to support DFI’s.”

Moribame shared remedies to the situation, noting that; “What we need is leadership that will be able to address this. CEOs should ensure companies operate within a framework of responsible lending. They also ought to scout for opportunities that would be attractive to investors, this include investors who are willing to put money into green financing. Botswana is a prime spot for green financing due to the great opportunity that lies in solar projects. ”

Technology has been hailed as the economy of the future and thus needs to be embraced to drive operational efficiency both internally and externally.

Executive Director, bank of Industry Nigeria, Simon Aranou mentioned that for investors to pump money to climate financing in Africa, African states need to be in alignment with global standards.

“Do what meets world standards if you want money from international investors. Have a strong risk management system. Also be a good borrower, if you have a loan, honour the obligation of paying it back because this will ensure countries have a clean financial record which will then pave way for easier lending of money in the future. African states cannot just be demanding for mitigation from rich countries. Financing needs infrastructure to complement it, you cannot be seating on billions of dollars without the necessary support systems to make it work for you. Domestic resource mobilisation is key. Use public money to mobilise private money.” He said.

For his part, the Minster of Minister of Entrepreneurship, Karabo Gare enunciated that, over the past three years, governments across the world have had to readjust their priorities as the world dealt with the effects and impact of the COVID 19 pandemic both to human life and economic prosperity.

“The role of DFIs, during this tough period, which is to support governments through countercyclical measures, including funding of COVID-19 related development projects, has become more important than ever before. However, with the increasingly limited resources from governments, DFIs are now expected to mobilise resources to meet the fiscal gaps and continue to meet their developmental mandates across the various affected sectors of their economies.” Said Gare.

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TotalEnergies Botswana launches Road safety campaign in Letlhakeng

22nd November 2022

Letlhakeng:TotalEnergies Botswana today launched a Road Safety Campaign as part of their annual Stakeholder Relationship Management (SRM), in partnership with Unitrans, MVA Fund, TotalEnergies Letlhakeng Filling Station and the Letlhakeng Sub District Road Safety Committee during an event held in Letlhakeng under the theme, #IamTrafficToo.

The Supplier Relationship Management initiative is an undertaking by TotalEnergies through which TotalEnergie annually explores and implements social responsibility activities in communities within which we operate, by engaging key stakeholders who are aligned with the organization’s objectives. Speaking during the launch event, TotalEnergies’ Operations and HSSEQ,   Patrick Thedi said,  “We at TotalEnergies pride ourselves in being an industrial operator with a strategy centered on respect, listening, dialogue and stakeholder involvement, and a partner in the sustainable social and economic development of its host communities and countries. We are also very fortunate to have stakeholders who are in alignment with our organizational objectives. We assess relationships with our key stakeholders to understand their concerns and expectations as well as identify priority areas for improvement to strengthen the integration of Total Energies in the community. As our organization transitions from Total to Total Energies, we are committed to exploring sustainable initiatives that will be equally indicative of our growth and this Campaign is a step in the right direction. ”

As part of this campaign roll out, stakeholders  will be refurbishing and upgrading and installing road signs around schools in the area, and generally where required. One of the objectives of the Campaign is to bring awareness and training on how to manage and share the road/parking with bulk vehicles, as the number of bulk vehicles using the Letlhakeng road to bypass Trans Kalahari increases. When welcoming guests to Letlhakeng, Kgosi Balepi said he welcomed the initiative as it will reduce the number of road incidents in the area.

Also present was District Traffic Officer ASP, Reuben Moleele,  who gave a statistical overview of accidents in the region, as well as the rest of the country. Moleele applauded TotalEnergies and partners on the Campaign, especially ahead of the festive season, a time he pointed out is always one with high road statistics. The campaign name #IamTrafficToo, is a reminder to all road users, including pedestrians that they too need to be vigilant and play their part in ensuring a reduction in road incidents.

The official proceedings of the day included a handover of reflectors and stop/Go signs to the Letlhakeng Cluster from TotalEnerigies, injury prevention from tips from MVA’s Onkabetse Petlwana, as  well as  bulk vehicle safety tips delivered from Adolf Namate of Unitrans.

TotalEnergies, which is committed to having zero carbon emissions by 2050,  has committed to rolling out the Road safety Campaign to the rest of the country in the future.

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