A well-established private attorney who is also a senior partner at Bayford and Associates, Dick Bayford has sent a chilling alert to the High Court of Botswana cautioning them against making a judgement that may have the hallmarks of causing chaos in the impending 2019 General Elections.
Bayford said this when making presentations on the capacity as and from attorney perspective in a case in which they are representing the main opposition party in parliament – at court – Umbrella for Democratic Change (UDC). In the case the Botswana Movement for Democracy (BMD) are challenging their expulsion from the umbrella party which is now left with Botswana National Front (BNF), Botswana Peoples Party (BPP) and Botswana Congress Party (BCP) in their endeavour to unseat the ruling Botswana Democratic party (BDP).
Bayford set the context by stating that as a matter of fact currently the UDC remains the leading opposition party in the country as it comprises various political formations. “So, if by some stroke of luck, the BMD is able to go to court and later get an interdict that says UDC must not contest elections; effectively the courts would be saying that the ruling BDP must be retained to power unopposed,” the well regarded attorney told a pack of journalists in a press briefing this week in Gaborone.
He said the court must then consider this very closely if it will augur well with the constitutional democracy that reigns in this country. The courts, he added must think hard whether it is desirable effectively to have one party running and contesting elections. “Whether it will be healthy for a democracy, whether it will conduce to peace and tranquillity in the country. Those are the considerations that any court, properly advised, would have to deal with,” Bayford said.
He further pointed out that it is very easy for the court to say that they are going to stop the UDC from contesting an election but then if people were to reflect carefully and to look at whether in fact it is practically to do that I would say it is not. In his view, “that would plunge this country into a very chaotic situation.” I don’t know, he continued, if the BMD is committed to democracy in this country that would be reminded about this cost.
The law guru emphasised that what the BMD is asking for in court has nothing to do with the coming elections. “They have been saying that the UDC is not going to be permitted to campaign or run these coming elections on as UDC. I think that is totally false.” According to Bayford, they are only saying the court must nullify the suspension of the BMD from the UDC, which is basically academic because that suspension was also followed by expulsion and so it’s a non-issue.
He said the second issue that they are raising is that, as a relief, they say that the court must state that their expulsion from the UDC is null and void. “So as regards to processes in relation to elections and preparation they mention nothing. It is only now that they are bringing the argument hiding behind self-created urgency that UDC is not allowed to contest. It is an empty statement,” the UDC lawyer brushed the issue aside.
He continued to stress therefore that “there is no case before court intending to bar the UDC from contesting the election in its own right.” The anti-establishment attorney further took a chilling attack to the BMD leadership by stating that “I must say with due respect to the leadership at the BMD that there is a total figmentation of their minds.”
Is UDC dragging its feet in the matter to reach impending elections?
So this case, Bayford narrated that the UDC first became aware of the case on the 14th December 2018 while the decision to expel the BMD having been taken way back on the 25th October 2018. UDC was only permitted to respond to the complaint at the beginning of the legal year commencing 1st February.
“Once the decision to expel the BMD, the party was fully informed of its right to lodge an appeal to the supreme decision body of the UDC which is congress. But rather the BMD decided not to utilise the option that is to exhaust the domestic revenue before they took the decision to rush to court,” he explained.
As you know recently, Bayford reminisced: I was involved in a case brought by Pelonomi Venson Moitoi and some of the authorities that were cited by the High Court in the judgement was that matters relating to political parties are best left to the political parties to determine. “Now we expect that if the High Court is going to be consistent in its findings it should in all likelihood assume in its position that it’s important that members of a political party feeling aggrieved by an decision taken by their party should embark on the internal processes of their party before they opt for court,” he argued.
“When we were in court a statement was made by the BMD to the effect that UDC is delaying the case. We take issue with that statement because it is totally deficient of any truth. BMD decided to sit on their laurels from the 25th October to the 14 December and effectively to the 1st February 2019.”
Bayford also observed that when the BMD went to court they did not ask the court to determine on their case on grounds of urgency. “I keep referring to the Venson-Moitoi case; people keep saying that the case was ran through the day and decision taken at night. This was because of the manner in which Venson Motoi lodged the case as it was on urgency basis,” he justified.
The legal nature of the BMD/UDC court case
According to Bayford, the case takes the form of a review application which means it differs from the appeal in that when someone goes to court to seek a review of a decision it must be shown that the matter falls within the arena of public and not private law. He added “secondly a review will concern itself with legality either in substance or procedural and it does not deal with the rational or facts of the case. In an appeal when someone appeals because is aggrieved, they would be allowed to carry out a narration of the facts and ask court to make a determination or findings that were made by the lower court.”
If this case was to succeed, the renowned attorney said the court is not going to say that the facts were wrong but that the decision that was made by the UDC was wrong. What the court might say, he continued, is that the procedure that was adopted by the UDC in arriving at that decision was wrong, and that is the distinction.
“No way that the High Court is going to subpoena the powers of UDC it being a voluntary organisation governed by its rules and regulations to take a decision,” he concluded. Bayford sat with other UDC lawyers while making the presentations in the matter being Boingotlo Toteng, a senior Partner at Toteng attorneys and Dutch Leburu who is a partner at Monthe Marumo attorneys.
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.
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.
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.