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Bangwato rejected Masisi, Khama truce at 11th hour

Truce efforts between President Dr Mokgweetsi Masisi and his predecessor Lt Gen Ian Khama were last week dealt a last blow when Bangwato tribal leadership advised the former President against meeting his successor. A date had been set for the two to meet.

Weekendpost informants disclosed that after Masisi initially rejected a proposed reconciliatory meeting arranged and organized by Spy Chief Peter Magosi because he was not ready and had long asked for the meet, he had now decided it was high time he met the man who gave him the baton.  All logistics for the meeting were sorted, with Magosi still the main organizer until the Bangwato traditional leadership dismissed it.

When Magosi made a somehow unusual call to Khama asking if it would be possible for him to meet with Masisi, it is said he (Khama) gave it a thumbs up. But he had indicated that he was in Serowe preparing for his scheduled meeting that was to be held on Saturday.  The agreement now was the meeting (private) be held on Wednesday at around 9pm in Serowe, Masisi and Magosi did not mind time and venue anyway and it was set that the two warring leaders will meet in Serowe.

Sources say with Masisi and Magosi not disputing the venue; it was demonstration that they wanted to iron out their differences with Khama. It is understood that President Masisi concedes privately that this feud has the ability to dismantle the Botswana Democratic Party (BDP) going to the elections. Khama, while on the one hand agreeing to meet Masisi via phone calls with Magosi, is reported to have been locked in another meeting with his ‘Uncles’ and advise-givers but did not share with them what the frequent calls were about. Few minutes later after finalizing the meeting with Magosi through another call, it is then that he decided to disclose to his ‘uncles’ what the calls were about.

Informants say his announcement was met by strong resistance from the uncles who were already preparing for a weekend meeting and made it clear that Khama should leave the BDP. “Khama returned a call to Magosi cancelling the agreed meet. He did not reveal more details of which Magosi did not question further too, but deep down Khama knew he wanted the meeting but could not disappoint his uncles who have been traversing the path of trials and tribulation with him,” narrates a source on Tuesday this week.

Khama was told after revealing that Masisi wants to meet him that, “What, ware who? We are not with you on that one you could go ahead with it but you will be on your own,” allegedly said one member of Khama’s regiment of Malwelakgosi. Further, another uncle added, “he can come but he won’t be accorded neither any protocol nor security that the president deserves and we will not give him any recognition, so you may go ahead. But still know that Saturday we are on because we cannot fool Bangwato. They want to know what you will present to them and if he sweet-talks you, you will see how to address the tribe at the weekend.”

This was the turning point that called off the meeting but Magosi was not aware of whatever was said by the tribal leaders. The meeting by Khama and his mentors held at an unknown place in his home village of Serowe was plotting an ambush of how Masisi and the BDP should be scattered in Serowe and the central region. Further it was influencing Khama to leave the BDP and seek a refuge where he will be free and not be accused of interfering with Masisi’s presidency. Masisi was left frustrated and left the peace pipe effort hanging by a thread with a meeting between the two looking more unlikely. Contacted for comment this week, regent Kgamane said; “I am not in a position to say anything,” he said briefly.

KHAMA’S UNCLES PRESSED HIM TO REVEAL POLITICAL FUTURE

After dismissing the meeting and agreeing on the weekend agenda, which was for Khama to dump his own party. Everything went according to the script which was to disclose intentions to leave the BDP and endorse those who are sympathetic to him as per the South African based research consultancy firm. “After Biggy (Butale) made that presentation and Khama followed, he was told thereafter to go back to podium to tell Bangwato where he is going as he leaves the BDP.

And that is where they lost it; they were over-excited especially after the arrival of Butale. Khama was asked to tell the tribesmen the next destiny, “ga o kake wa bitsa batho o bo o sa ba bolelele gore ba ya kae. Ba tshwanetse go itse gore tsela pedi ba tsaya efe phuthi,” one uncle allegedly told Khama inside that white tent on Saturday. It is from there that Khama went back to the podium and cleared the air: "I don't recognise this party anymore, ke kgaogana le party e mme ke tsile go thusa ba bangwe mo dipartying tse dingwe ba ba naleng boamaaruri. Ke tla tsamaya mo dikgaolong tsotlhe, mme ke taa nna patriot ke dirisana le Botswana Patriotic Front (BPF).”

Reports say the mood in Serowe main Kgotla is so volatile to the extent that the traditional leadership has already hatched a grand plan to eradicate the party in the village. “BDP is no longer wanted in Serowe. Magosana are going to be mobilized to influence other tribesmen not to vote the BDP in the three Serowe constituencies because the party leadership has humiliated Kgosi Kgolo. It will be a demanding exercise but the traditionalists are upbeat that at the end of the day the plan will pass,” says a source very close to the dynamics.

A study compiled by a South African firm on the relationship between the two has also painted a muddy picture on the two Presidents reaching a point of reconciliation saying it is as good as impossible. However, it is said Khama was following the same script from the study which encouraged them to meet despite the circumstances. “Attempts to bring them together to reach a truce have failed and they seem to be heading to the cliff edge. With that, Khama should try by all means to meet Masisi personally or through emissaries. This is for a truce to be negotiated in the interest of both men and for the sake of the party,” highlighted the report.

In the past Khama had made it clear that he would like to meet Masisi privately. This was after many attempts by Masisi to engage his predecessor through the BDP elders committee which the former leader deliberately rejected. The SA firm research says with Masisi having registered a hollow victory at Kang congress last month, achieved through the price of manipulation, intimidation and abuse of state resource and assets, he may be amenable to a settlement in order to turn his attention to the general elections.

“A big question mark is would Masisi’s conciliatory stance be genuine or only meant to buy him peace for purpose of the election after which he will return to haunt Khama. Our analysis is that for Masisi’s project to become a success, Khama and his associates must continuously be vilified and portrayed in the eyes of the nation as the perennial enemies of the nation,” the study observed.

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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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