Following Pelonomi Venson Moitoi’s courageous presidential bid, Robert Masitara who is contesting as an independent candidate for Gaborone Bonnington North has also expressed his intention to contest for the leadership of the Botswana Democratic Party (BDP) in future.
Masitara hinted that he wants to be president in the next cycle of General Elections following 2019 or after President Mokgweetsi Masisi steps down. “Yes I am looking at 2024 sir or beyond that. And the issue is not about President Masisi but about what I believe in. It needs to be done,” he told Weekend Post in one-on-one interview this week. He emphasised that “to be honest, I foresee myself in the future standing for presidency. That’s is my ultimate vision.”
He justified that as a president he will fight corruption to the core with his expertise that he has on corruption. “I want to direct these things as sometimes you are headed by somebody who doesn’t understand issues of corruption the way you do, and they tend to suppress you,” he highlighted. Masitara also added that “and you can’t fight it effectively than you would if you were the one in charge while knowing corruption with its manifestations.”
Corruption in Botswana has been institutionalised
He said he has been for a long time the lonely voice speaking the institutionalised corruption at parliament. “I have long cried about the state of corruption in the country. From 2009, I was the lonely voice on corruption. But look at Masisi – he is talking about the corruption situation now, for example I did speak about the Botswana meat Commission (BMC) long time back. Look what is happening now. You should revert to my reports while I was Chairman of a parliamentary oversight committee of parliament,” he said.
Masitara reminisced that he has long spoken of BMC misuse of money through feedlots, board members paying themselves pensions without any paper trail, people paying themselves overtime without any documentation. “You can see that everything here, that corruption has been institutionalised. To extend that now, it has become a faculty on its own,” he highlighted. According to Masitara, President Masisi can’t fight this thing as what the government is doing in relation to corruption is simply firefighting.
“The causal effects we are not attending to them. We are concerned only about the resultant effect right now. When we are sitting on them and they don’t come out, we will never know about them. So I will only focus on the causal effects,” he said. The Gaborone Bonnington North aspirant said is disappointed that he has always talked about corruption and people didn’t take heed of him. “When you are the only voice in parliament denouncing corruption then you look like a sell-out.”
He asserts that the awaited declaration of assets law is useless
The ex-Gaborone West North, the incoming law on declaration of assets is simply useless. “I have long spoken about it, the law is a useless tool. When DCEC had a conference two years back I told them that this thing has been overtaken by time,” he said. The maverick ex BDP MP recommended that let the Masisi administration bring him in government and he will convince them to do away with this thing.
There is another tool that they can use, he observed while adding that they should introduce the lifestyle audit at a different angle which supersedes the declaration law. “People right now are not owning assets in their names. They have written their properties by the name of their maids, garden boys and so forth. Certain transactions are also not done through their names. So that declaration law is a waste of time,” he reasoned.
Commercial banks are being used in corruption practices
According to the corruption busting politician, perpetrators of corruption have taken a step ahead, and they are so educated and innovative.He said “Banks are being used now for capital flight. Banks are being owned by Directors somewhere outside the country but they operate in Botswana. They are experienced in issues of corruption more than us.”
The influx of Chinese in the country, he said, is contributing to corruption, as they know corruption more than locals and their institutions; and more than the Directorate on Corruption and Economic Crime (DCEC), the Botswana Police Service and the Directorate on Intelligence and Security Services (DISS).
The forensic specialist decried that billions of pula are continually taken out of this country thorough financial systems. On China’s soft loan to Botswana, Masitara explained that the country don’t even need to borrow money from outside the country. “Why should we be debting Botswana in these billions of pula of loans from China? There is money that is held by Batswana people who took money to buy houses in Dubai, Cape Town, Durban and other areas.
That capital flight must come back to Botswana, through repatriation, to service all these loans to develop our country,” he pointed out. The one of a kind politicians also observed that the Asset Forfeiture department under the Attorney General is not doing its job. “In other countries the department is recovering billions of money that is used to develop infrastructure,” he said.
PPADB Act and all parastatals laws are flawed
Masitara highlighted that he thanks God to have taken him out of the system for a while when he lost the elections the other time (in 2014). “So that I must and interact with other people, open business; Masitara Forensics and tender through physical tendering to be involved with the system just like an ordinary person and so I realised where corruption emanates from.”Instead of being told as an MP like he was Chairman of a parliamentary oversight committee “I seen it with my eyes.”
He justified: “now for me to be involved in the actual tendering processes; registering of companies, then PPADB and all the other requirements, I have seen the bottlenecks on the real cause of corruption. None of the members of parliament understands corruption to the extent that I do. They have been absorbed through the system. They have never been outside to interact with the system itself from the grassroots.” According to entrepreneur, he saw how and why people lose tenders.
“Even the laws of PPADB framework I still have questions. Even the formula used by PPADB to evaluate the tenders I still have problems with it. I have long said it. PPADB Act is flawed. In fact all parastatals Acts are flawed.” In this instance he said PPADB Act is so loose that corruption is embedded with that Act and that there are clauses within the laws that actually facilitate corruption to be executed with impunity – while they are following the law. So all the parastatal Acts they must be recalled to parliament, he emphasised.
Still supports MP’s serving two terms; and political party funding
The well-known politician still believes in the motion that MP’s should serve two terms like the presidents. “Two terms is enough. It’s mainly because of good governance. Let’s give others chance. Why are we still circulating same people, board of Directors same people as well? I have spoken about this issue strongly in my reports,” he said.
Masitara further asked “do you want to tell me now that there are no youths who are even educated enough on such issues to be trained or groomed into Board Directorship? We circulate the same old faces because we want to protect us wherever in these Ministries and Parastatals, which is not fair. So parliamentarians serving two terms is enough.”
On political party funding he pointed out that he still supports it.“I still support political party funding and scrutiny of the use of such funds. The current arrangement that every aspiring candidates should source their funding is a breeding ground for current and future corruption and state capture. Sponsors even shady ones want something in return.”
Masitara says opposition parties’ top members also corrupt
When asked why he didn’t join any of the opposition parties he said he thinks none of them is ready to govern. “I still feel that our opposition parties are not strong. I am not convinced about their direction. And I know some of them will join the BDP eventually. If I join them, I am even not yet clear if they will really allow me to fight corruption as a political expediency item. If they can will elections can they allow me to fight corruption?
Some of them are involved in corruption, they are implicated, Masitara implied while adding that the people will see as the controversial National Petroleum Fund (NPF), Botswana Public Officers Pension Fund (BPOPF), Asset management cases unfold that opposition parties are also implicated.
“Some names will crop up. Others even their fathers were implicated in corruption then. Even questioned at some of the assets they have acquired/inherited right now. And if you can trace that to issues of money laundering those assets should be confiscated,” he pointed out. According to the philanthropist, “So that’s why the best option for me is to be independent.”
On Boko, the UDC leader that he wants to dispose
Masitara said he does not entertain politics that attack other contenders. “Let me not de-campaign him. My style of leadership is not to de-campaign anyone. I can’t cast aspersions on their abilities. Let the people choose. Boko is a nice guy and very educated. I am also educated and exposed as well on the issue of corruption than all the candidates am standing against. I am well above them, he highlighted.
The former legislator said his campaign is at a different level and that Boko’s is also at a different level. “We are poles apart. It’s a divergent. They are not a tangent. Totally different parameters and angles.” Masitara further said MP”s who have experience on oversight, where government fails to prosecute, and government must source external funding to prosecute some of these cases. “And we must bring back some cases in which shabby work was done because of our inability to investigate. Other countries are doing.”
Botswana’s lack of infrastructure is heart breaking
Despite being a diamond country which is most valued in the world, Botswana’s lack of infrastructure concerns Masitara. He said “I have always asked other MP’s what do we learn from other countries? Don’t we envy those countries like Japan? Look at their infrastructures. If you land in their airports you feel that sorrow.”
No attainment of vision 2036, knowledge based economy with corruption
Masitara said the country cannot attain Vision 2036 which aspires for a knowledge based economy and upper middle class – with corruption. He stressed to this publication “we cannot attain knowledge based economy if there is still corruption. People who are going to be servicing or issuing these tenders already have corruption underneath them.”
Also fancies appointment to head corruption bodies
Even though he aspires to be an independent MP, Masitara fancies chances of appointment in government if he loses the elections. “You know if the president can appoint me now and ask me to oversee or head Governance and Investigations, with my qualifications I can stand in court of law as my evidence is admissible in a court of law. There is no one in parliament who can do this task. They don’t even know how to interrogate these issues. But I don’t blame them, this takes exposure and experience. If I were to go in government I know where to start, “he said.
He added that if he is appointed, No one will be spared or protected in the corruption drive. He continued “If Masisi is serious and sincere about fighting corruption he cannot leave me out of the equation. Masisi administration must use my services wherever they want me to. Even if they can say to me stop contesting as an independent candidate I can. My most effective way of contributing is when am within the system. That’s where my passion lies.”
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.”
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).
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.