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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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Botswana’s development agenda in jeopardy

21st September 2020

Stanbic Bank Botswana Quarterly Economic Review indicates that Botswana will fail to meet some of its Vision 2036 targets, particularly unemployment reduction and reaching high-income status.

The report says this is mainly due to the slow economic growth that the country is currently experiencing. This Quarterly Economic Review focuses on the 2020 Budget Speech.

The first paper reviews the entire budget with its key observations being that this budget is prepared as prescribed by the Public Finance Management Act; the priorities it seeks to address are drawn from Vision 2036 and the eleventh

The 2020 budget Speech, which was the maiden speech by the Minister of Finance and Economic Development, Dr. Thapelo Matsheka, and the first after the 2019 general elections, was delivered to Parliament on the 4th of February 2020.

It has been well received by the labour unions, business community, and the public at large as well as international organisations such as the International Monetary Fund (IMF).

It mainly derived its support from key facets including, emphasis on changing the business-as-usual approach to development; outlining the transformation agenda; fiscal reform that minimizes the negative impact on economic development and human welfare, competiveness and the decision to implement the 2019 negotiated and agreed public sector.

The budget’s progress review shows that economic growth was consistent with the NDP 11 projections, with growth of around 4 percent. At this growth rate, the country would neither ascend to a high-income status nor reduce unemployment towards the Vision 2036 target of a single digit.

Simple calculations of this review confirm that the economy will need to grow the Vision 2036’s target of 6 percent over the next 16 years for per capita income to increase from around USD 8,000.00 to above USD 12,000.00 in current prices.

Further, the population is anticipated to grow by only 2 percent per annum.

For this reason, the focal areas for the forthcoming FY’s budget include measures to increase economic growth towards an average of 6 percent per annum.

Economic diversification is reportedly progressing fairly well. The report says, the share of the non-mining private sector in value added has risen to 66 percent in 2018 from to 63 percent in 2015.

The sectoral pattern of growth showed that the performance of services sector (particularly transport & communications, trade, hotels & restaurants, and finance & business services) has been the silver lining and that of mining sector was subdued whilst the utility sector disappointed.

The drive towards the service sector of the economy, especially to low-productivity activities (tourism, public administration, wholesaling and retailing) does not bode well for the country’s development aspirations.

In the previous versions of this Quarterly Review, it was noted that there is need for the rethinking of economic diversification. Since the country’s domestic market is small, it is inevitable that economic diversification not only focus on broadening the product mix, but also the composition of exports and markets.

This understanding of economic diversification has not been embraced by this year’s budget. Consequently, Botswana’s exports are still overwhelmingly diamonds, which means that the rest of economic sectors are still highly dependent on foreign-exchange earnings from diamonds. Thus, “the transformation programme requires a review of the country’s entire ecosystem”.

The budget review of the economic context also depicts that an economy with positive medium-term prospects, with growth expected to recover to 4.4 percent in 2020 from the expected growth of 36 percent in 2019 largely due to faster growth of services sectors and, thereafter, to slow-down to 4 percent in 2021.

These projected growth rates are comparable to those of the IMF staff’s baseline scenario of 4.2 percent in 2020 and 4 percent in 2021. Thus, the business-as-usual scenario produces growth rates that are still too low to achieve Botswana’s development objectives and create enough jobs to absorb the new entrants into the labour market.

Trade tensions between the two major markets for diamond exports, viz., the United States of America and China, is one of the factors that are cited as contributing to, indeed, undermining not only the domestic growth, but also the fiscal position.

Another notable downside risk to both global and domestic growth is outbreak of the coronavirus in China around January 2020. This has been declared as a global health emergency. In an attempt to contain the spread of the novel coronavirus pneumonia, the Chinese authorities have ordered city lockdowns and extended holidays, of course, at the expense of near- term economic growth, according to the new Stanbic Bank Botswana report.

According to Nomura Holdings Inc., fewer migrant workers returned for work than in previous years and business activities have been slow to pick up. The havoc wreaked by the virus on the world’s second largest economy is likely to spill over to the global economy. In fact, it has resulted in a glut in crude oil and, thereby placed oil markets into a contango, i.e., a market structure where near-term prices trade at a discount to future contracts.

It also presents significant risks one of Botswana’s main drivers of economic growth, diversification and foreign exchange earnings. According to the Financial Times (February 13, 2020), Chinese tourists spent $130 billion overseas in 2018. Regardless of whether the growth materializes, the projected domestic growth rate would not transform the economy to a high-income one.

Progress towards reduction of unemployment, to a target of single digit, and poverty and achieving inclusive growth has also been relatively slow, the Stanbic Bank Botswana Review says.

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OP leases Orapa House

21st September 2020
Orapa House

Ministry of Presidential Affairs, Governance and Public Administration (MOPAGPA) has through the Office of the President (OP) proposed to avail Orapa House for use by private training institutions as well as research institutions involved in the area of technology development.

For a very long time the monumental building located in the heart of the city has been a white elephant, despite government purchasing it for nearly P80 million from De Beers in 2012.

However, government has now identified a productive use for the iconic building. “The overall vision is for the building to be transformed into a hub for digital technology research and development to be carried-out by institutions, such as; Limkokwing University, BIUST, BITRI and other relevant stakeholders.”

The decision was taken as government traverse a new path of transforming the economy from a mineral led economy to a knowledge based economy through the promotion of research and innovation. However, the facility will need major maintenance to be carried-out in order to meet the requirements of the proposed change in use.

“The work will include provision of laboratories, work stations, production areas and seminar rooms; audio visual centre, high speed internet connectivity, exhibition areas and offices,” reads the proposal note for the development.

These developments will be done through the refurbishment and maintenance of the main building, workshop, and ablution block, gate house, parking area, grounds, and access control and security service.

“There will be minimal modifications to the structure as it stands. The project is estimated to cost approximately P50, 000, 000,” says the report. In this regard, it is said, the initial scope of the OP facility will be modified to accommodate the envisaged digital technology research and development hub.

With funds needed to improve the building, OP has requested that; “the 2020/21 annual budget provision for Orapa House will need to be increased by P37,500,000 from P2,500,000 to P40,000,000 to kick start the maintenance works.” Funds will be sourced from the projects that have been delayed due to Covid-19 protocols during the 2020/21 financial year.

The building has been a thorny issue for government for years. Initially, OP was expected to move there but the move never materialised. At one point it was a question of whether the Office of the President and the Ministry of Finance and Economic Development were planning to override a decision by Parliament which rejected the proposal to buy Orapa House under the belief that government may be buying its own property. The building was to be bought at a negotiated cost of P79 million.

Again in 2012, Government had wanted to buy Orapa House for a negotiated P79m but the Finance and Estimates Committee of Parliament had rejected the request because of the inconsistencies realised in the supporting documents of the proposed procurement. The valuation of the building was put at P74 million.

The Ministry of Lands and Housing had initially offered De Beers P73, 000,000 as the purchase price. However, De Beers countered with P85, 000,000. On negotiation and converging of the minds, the selling price was finally agreed at P79, 000,000.

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Sad state of Brigades: dumped and ignored!

21st September 2020

Auditor General, Pulane Letebele, has expressed discontentment at the worrying and deteriorating state of brigades in the country.

In an audit inspection which was carried out at Tshwaragano Brigade in Gabane, a number of observations showed weaknesses and shortcomings in the conduct of the financial affairs of the institution.

According to Letebele’s report, former students of the brigade had been engaged to carry out maintenance works on the school premises, comprising of painting, tiling, plumbing and electrical works, which covered the period from July 2017 to June 2018.

Although the agreed maintenance period had elapsed, the works had not been completed because of unavailability of funds and this situation had persisted up till the time of inspection in November 2019.

Auditor General says arrangements should have been made in time for funds to be available to complete these relatively minor works even before the works commenced.

Various contractors had been engaged for clearing the bush and for the supply of concrete stones, pit and river sand and hiring equipment for digging the trench towards the construction of an auto mechanics workshop, the report said.

It stated that the cost of services and supplies provided totalled P117 949.80. However, despite the services and the supplies having been paid for, the construction works had not commenced for a long period afterwards, resulting in the trench filling back in.

The audit inquiries had not elicited satisfactory responses as both the institution and the Ministry had not accepted the responsibility for the project, although orders for the provision for the supplies had been made. For their part, the Ministry had stated that they had sub warranted funds for the purchase of porta cabins.

Letebele indicated that it is therefore confusing that a project which is critical to the functioning of an institution such as this one would commence without a well-defined plan.

Furthermore, the accounting and maintenance of records for the supplies items were not of the standard prescribed by the Supplies Regulations and Procedures in that the supplies ledger cards, the main accounting records for Government assets, were not properly maintained for the recording of receipts and issues.

This had resulted in significant discrepancies between physical and ledger balances, while in other instances the supplies items had not been recorded at all.

The report says 24 of the 91 new computers found in the computer laboratory at Kumakwane ABC campus were not recorded anywhere, as were the other computers in the storeroom which could not be counted due to the disorderly storage conditions.

The institution had entered into a contract agreement with a security company for the provision of security services at Tshwaragano Brigade, ABC and Horticulture campuses at Kumakwane for a 2-year period which ended in June 2018, WeekendPost learnt.

After the contract expired in June 2018, an extension was granted till the 30th September 2018. Since then, there has been no security service coverage for the institution to-date. According to Auditor General, in the face of prevailing crimes, it is of paramount importance that government properties be protected by provision of security services at all times.

At Tlokweng Brigade, it was noted that the kitchen staff were working under difficult conditions as the kitchen facilities and equipment, such as the cold room, tilting pot, food warmers and solar power for hot water were dysfunctional. The kitchen roof was leaking and men’s restrooms was not working. All these need to be brought to a reasonable and functional state of repair.

The kitchen staff should use a purpose-designed Rations Ledger for the recording of receipts and issues of foodstuffs to reflect the usage of those items. As far back as 2014 the Department of Buildings and Engineering Services had found that the house occupied by the bursar was uninhabitable on account of structural defects, the report said.

A site visit during the audit had established that the house was indeed unfit for occupation as there were cracks on the walls, power switches were not working and the roof was leaking. On a sadder note, there were a number of finished items of clothing, such as dresses, shirts, and jackets from students’ practical exercises from the Fashion Design Textiles Workshop.

Auditor General shared her take on this, saying: “I have not been able to ascertain the policy on the disposal of products from these practicals. A trace of 103 green acid-proof overalls which had been purchased in August 2018 had indicated that there was no record of these items having been recorded or issued, nor were they available in stock. I was not able to obtain any explanation for this situation.”

Kgatleng brigade was also audited and inspected by Auditor General who observed that the brigade has 26 institutional houses at Bokaa, both old campus and new campus. Some of these houses are very old and dilapidated, with two declared uninhabitable. The condition of the houses is a clear indication of lack of care and maintenance of these properties.

At the time of the audit, there was no contractor engaged for the provision of security guard services at the new campus, after expiry of the previous one in July 2019.  It is hoped that steps would be taken to safeguard the security of the premises and government properties against any acts of hooliganism.

In August 2019, there was a break-in at the electrical and at the plumbing maintenance workshops and a number of high value items, such as drilling machines, bolt cutters, spanners and cables, were stolen. The break-in and theft were reported to the police.

“However, at the time of writing this report I was not aware of the outcome of the police investigation, nor of any loss report submitted in terms of the Supplies Regulations and Procedures,” Letebele said.

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