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Inside Venson-Moitoi court defeat against BDP

Three empanelled Judges of High Court  comprising Chief Justice Terrence Rannowane, Judge Abednigo Tafa, , and Judge Godfrey Radijeng on Thursday dismissed Pelonomii Venson-Moitoi court suit on the basis that she proved to her eligibility to run as President of Botswana in relation to her citizenship.  

Venson-Moitoi had taken the ruling Botswana Democratic Party (BDP) to court citing irregularities in the build up to the first presidential election in party history. The lawyers representing BDP led by Busang Manewe contented that Venson-Moitoi failed to prove in the founding affidavit that she qualifies to run presidency of Botswana, as it is requirement by the constitution of BDP to meet such requirements.

On those grounds, the BDP wanted the matter dismissed because Venson-Moitoi had no locus standi thus the right or capacity to bring an action or to appear in a court. The trio Judges agreed with the BDP lawyers that Venson-Moitoi lacked locus standi, which according to the bench was enough to dismiss the matter outright.

Venson-Moitoi citizenship in question…

According to the ruling, Venson – Moitoi has no locus standi as she did not reveal whether she is eligible to be President of the ruling party and by extension that of the country.  They stated: “the BDP’s contention is that Venson – Moitoi has not alleged and established in her founding affidavit that she qualifies to be the president of the Republic of Botswana, which is a condition precedent to being President of the BDP in terms of article 29.3.3 of the constitution of the BDP.”

The BDP had submitted in court papers that for one to qualify as President of Botswana, one must in terms of the constitution of the Republic of Botswana establish that one is a citizen of Botswana by birth or descent, over the age of 30 years old and qualified to be elected member of the National Assembly.

This is provided for at section 33 (1) of the constitution of Botswana, which sets out that: “a person shall be qualified for election as president if, and shall not be qualified unless, he or she – a) is a citizen of Botswana by birth or descent; b) has attained the age of 30 years c) is qualified to be elected as a member of the National Assembly.”

They acknowledged that subsections b) and C) are not in dispute and the BDP does not contest this as Venson – Moitoi in essence averred to be over the age of 30 and has been elected as Member of Parliament. However the ruling continued: “the requirement of citizenship by birth or descent is the problematic element that has not been disclosed Moitoi in her founding papers. Put bluntly, Moitoi has failed to prove that she is a Botswana citizen by birth or descent and that she does qualifies to be President of the Republic of Botswana in terms of section 33 afore-noted. The latter as submitted by the BDP is a precondition to qualification of the BDP.”

The Judges added therefore that “after careful consideration on the issue, we are satisfied there is considerable merit to this contention and the point in limine is upheld. The effect is that on this point alone the application stands to be dismissed.” However the 3 Judges said they will nonetheless continue to assess other points out of abundance of caution in the court matter.

Judges stated that the case is not urgent…

In addition the Judges stated that the urgency was self-created if there is any urgency at all. “The BDP contended that communication was sent to all branches and regions of the BDP on the 20th February 2019, that the National congress would be held on the 5th April 2019. The BDP submitted that Moitoi signified he intention to contest as a presidential candidate of the BDP on the 17th December 2018 and began to campaign for that purpose. The latter point is acknowledged by Moitoi,” they said.

The Judges emphasised that the BDP submitted that Venson – Moitoi had ample time to seek an order that the elections rules as sought be promulgated. “They contend that she should have approached the court when she formed the intention to contest. The BDP submitted therefore that the urgency is self-created.”

Venson – Moitoi queried rules governing the elections

According to the Judges, Venson – Moitoi’s complainant is that the BDP does not have a detailed rules governing the conduct of the election of the President of BDP. “The second complaint is that the BDP through its Secretary General on the 2nd April 2019 replied to the submission of her name as an aspirant candidate for election to the office of the President of the BDP in a manner that she does not agree with on interpretation,” they pointed out.

They stated that the Secretary General in his letter of the 2nd April 2019 responded to state that certain persons submitted by Moitoi as her sponsors did not qualify as delegates in terms of articles 29.3 and 26.4.2 of the BDP’s constitution. Moitoi avers that she does not agree with that interpretation.

“Venson – Moitoi averred that the matter is urgent and seeks that the scheduled elective congress of the BDP be stayed, alternatively be postponed on as she would not be entitled to contest the BDP party presidency as a result of the disqualification of 26 of her sponsors by the BDP’s Secretary General, which decision was communicated to her on the 2nd April 2019 in the afternoon.” Her contention is that without the rules known to all candidates, the credibility of the poll will be compromised resulting in the elections not being free, fair and credible.

She averred in the court papers further that “the political atmosphere prevailing in anticipation of the elective congress is highly charged and has polarised not only on the party, but the public in general.” She averred further that the elective congress anticipated impacts on the country’s body politic and that for this reason its transparency and credibility is essential.”

Venson – Moitoi averred that she “stands irreparable to suffer irreparable harm in the event she participates in the elective congress despite her complaint regarding the promulgation of rules and regulations, in anticipation of lodging a review application in due course.”  
She averred that this was because after the anticipated or scheduled Kang elective congress her potential contender, the President, Dr. Mokgweetsi Masisi, if successful would enjoy presidential immunity, thus rendering any court order aside the elections as irregular, merely academic.

After listening to other arguments the judges ruled that “in the premise the BDP succeeds on more than one point in lime and the application stands to be dismissed.” “We cannot overemphasise the importance of political parties resolving political disputes through internal conflict resolution processes. The point in limine succeeds,” they stated.The Judges borrowed a leaf from a Court of Appeal ruling between BDP and another versus Whyte Marobela who took the party to court in 2013 complaining about some transgressions in party primary elections.

“Further, we accept this position mindful of the Court of Appeal’s remarks that courts must be astute not to intrude in the political process by intervening too readily to overturn decisions taken by political bodies in internal elections where such bodies respect clear majority decisions, even in the face of clear irregularities in the process. Even though this is not about the elections, we take the view that the principle applies with equal force in this instance,” the judgement posits.

The ruling also points out that the interim sought by Venson – Moitoi is not competent in respect of prayer 2.5 of the draft order. “They contend that Venson – Moitoi has failed to disclose in her founding papers that she does not have an alternative remedy. The BDP further contends that Moitoi has an alternative remedy of article 13.6 of the BDP’s constitution. She further contended that article 13 of the BDP’s constitution was not available as a remedy in that it was tantamount to requiring Moitoi to exhaust local remedies.” As a result, the Judges ruled that “we take the view that Venson-Moitoi misses the point. The BDP has outlined an alternative remedy as set out in article 13.6 of the BDP’s constitution.”

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Details emerge in suspected Batswana poachers in Namibia

28th June 2022
suspected Motswana poacher arrested

New details about a suspected Motswana poacher arrested in Namibian and his accomplice who is on the run were revealed when the suspect appeared in court this week.

The Motswana Citizen who was shot and wounded by Namibia’s anti poaching unit is facing criminal charges under criminal case number (CR NO 10/06/2022) which was registered at the Divundu Police Station in the Mukwe constituency of the Kavango East Region on 10 June 2022.

It is alleged that a patrol team laid an ambush after discovering a giraffe’s fresh carcass in a snare wire and hanging biltong.  According to the Charge Sheet, the suspect Djeke Dihutu, aged 40 years, is charged with contravening and transgressions of Nature Conservation Ordinance andcontravening Immigration Act 07 in Mahango Wildlife Core Area, Bwabwata National Park. Dihutu’s first court appearance was on the 17th of June 2022, Rundu and it was postponed to the 07 July 2022. He is currently hospitalized in hospital under Police Guards.

Commenting on this latest development, the Namibian Lives Matter Movement National Chairperson Sinvula Mudabeti applauded the Namibian Anti Poaching Unit for its compliance with what it called the universal instrument on the Code of Conduct for Law Enforcement Officials adopted by the United Nations General Assembly resolution 34/169.

“We are aware that the duties of the police carry a great deal of risk, but our police has shown that they have a moral calling and obligation to protect even foreigners suspected of serious crimes on Namibian soil,” said Mudabeti.

According to him, whereas the Botswana Police Service, the Botswana Defence Force (BDF) and Directorate of Intelligence Service (DIS) have “very low moral ethics, integrity, accountability and honesty, the Namibian security agencies has shown very high levels of ethical leadership in the discharge of their duties even under duress.”

He said Namibian’s anti poaching unit has exercised one very important value, that is, the use of force only when it is reasonable and necessary. Mudabeti said this is in harmony with international best practices as enshrined in Article 2 of the UN instrument on law enforcement conduct, “In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

Our police have protected the life of a Botswana poacher and accorded him dignity, which is very foreign to our Botswana counterparts,” he said. He said article 3 of the same instrument above, calls for Law enforcement officials to use force only when strictly necessary and to the extent required for the performance of their duty.

“This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of suspected offenders, no force going beyond that was used by our Police,” he said.

Furthermore, Mudabeti said, whereas the universally accepted norm of the law of proportionality ordinarily permits the use of force by law enforcement, it is to be understood that such principles of proportionality in no case should be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.

“Our police have used force proportional to the situation at hand. Great work indeed! Article 6 urges law enforcement officials to ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required,” he said.

Mudabeti said the Botswana poacher was immediately taken to hospital whereas the Nchindo brothers who were captured on Namibian soil, beaten, tortured and executed while pleading to be taken to the hospital we left to die.

“The Namibian Doctor gave evidence in court that Sinvula Munyeme’s lungs showed signs of life (during the autopsy) and that he could have survived if he was accorded immediate medical assistance in time but was left to die while BDF soldiers looked and possibly ignored his cry for help,” he said.

Mudabeti said unlike in Botswana where there are no clear separation of powers between the BDF, Botswana Police Service, Department of Intelligence and their Directorate of Public Prosecutions,” we have a system that allows for checks and balances and allows our people and foreigners who are found on the wrong side of the law to be accorded the right to a fair trial.”

He said Botswana citizens are treated with dignity when apprehended in Namibia and not assaulted, tortured and executed. “We are a civilized country that respects international law in dealing with non-Namibian criminals. The Namibian Police have not mistreated the Botswana poacher but have given him the benefit of the doubt by allowing due processes of the law to be followed,” he said.

He added that, “We are a peace loving nation that has not repaid Botswana by the evil that Botswana has done to Namibia by killing more than 37 innocent and unarmed Namibians by the trigger happy BDF.” He concluded that, “Our acts of mercy in arresting Botswana citizens should never be mistaken for cowardice.”

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Gov’t, Unions clash over accommodation

28th June 2022
accomodation

The government has reportedly taken a decision to terminate provision of pool housing and subsidy for civil servants as it attempts to trim the public service wage bill.

This emerges in a dispute that is currently before the Labour Office headquarters lodged by unions representing thousands of civil servants across the country. This publication understands that the decision to cease providing pool housing and rental subsidy for public officers is part of proposals that government put on the table during its negotiations with public service unions in order for it to adjust salaries.

A letter from Labour Office addressed to the Directorate of Public Service Management (DPSM) shows that the directorate is cited as the First Respondent. The letter is titled, “Dispute lodged: Cessation of provision of pool housing and subsidy for pubic officers.”

“This serves as a notification and requirement to a mediation hearing,” the letter informed DPSM. According to the letter, the Botswana Teachers Union (BTU), Botswana Sectors of Educators Trade Unions (BOSETU) Botswana Nurses Union (BONU) and Botswana Land Board &Local Authorities &Health workers Union (BLLAHW) who lodged the complaint are cited as the Applicant.

“Please come for mediation hearing. The hearing will be conducted by Mr Lebang. The hearing is scheduled for date/time 29th June 2022, 09: 00HOURS at Block 8 District Labour Office, Gaborone. Please bring all relevant documents,” reads the letter in part.

According to a document described as a proposal paper on the negotiations on salaries and other conditions of employment of public officers by the employer (government), the government did not only propose to stop providing accommodation to civil servants but also put a number of proposals on the table.

The proposal papers states that the negotiations (which have since been concluded) cover three government financial years; 2022/23, 2023/24 and 2024/25. The government proposed an across the board salary adjustments as follows; 3% for the financial year 2022/23 effective 1st April 2022, across the board salary adjustment of 3.5% for the financial year 2023/24 effective 1st April 2023 subject to performance of the economy and across the board salary adjustment of 4% for the financial year 2024/25 effective 1st April 2024 subject to performance of the economy.

The government also proposed phasing out of retention and attractive (Scarce Skills) Allowance with a view to migration towards clean pay, renegotiate and set new timelines for all outstanding issues contained in the Collective Labour Agreement, executed by the employer and trade unions on the 27th August 2019, to ensure proper sequencing, alignment and proper implementation.
The government also proposed to freeze public service recruitment for the 2022/23 financial year and withdraw the financial equivalence of P500 million attached to vacancies from Ministries, Department and Agencies (MDAs).

Another proposal included phasing out of commuted overtime allowance and payment of overtime in accordance with the law and review human resource policies during the financial year 2022/23, 2023/24 and 2024/25.

The government argued that its proposals were premised on affordability and sustainability adding that it was important to underscore that the review of salaries and conditions of service for public officers was taking place at a time when there were uncertainties both in the global and domestic economies.

“Furthermore there is need to ensure that any collective labour agreement that is concluded does not breach the fiscal deficit target of 4% of GDP,” the proposal paper stated. The proposal paper further indicated that beyond salary adjustments, the Government of Botswana is of the view that a more comprehensive consideration “must be taken on the issue of remuneration in the public service by embracing principles such as total rewards compensation which involves taking a fully comprehensive and holistic approach to how our organization compensates employees for the work.”

The proposal paper also noted that, “Clearly, the increase in salaries and changes to other conditions of service which have monetary consequences will further increase the proportion of the budget taken by salaries, allowances and other monetary based conditions of services.”

“The consequential effect would be a reduction of the portion that can be used for other recurrent budget needs (e.g. maintenance of assets, consumable supplies such as medicines and books) and for development projects,” the proposal states.

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BPF NEC probes Serowe squabbles

28th June 2022
BPF

Opposition Botswana Patriotic Front (BPF) National Executive Committee will in no time investigate charges party members worked with the ruling Botswana Democratic Party (BDP) membership to tip the scales in favour of the latter for Serowe Sub-council Chairmanship in exchange for deputy seat in a dramatic 11th hour gentleman’s deal, leaving the ruling party splinter under the political microscope.

In a spectacular Sub-council election membership last Thursday, the ruling BDP’s Lesedi Phuthego beat Atamelang Thaga with 14 votes to 12 for Serowe Sub-council Chairmanship coveted seat and subsequently the ruling party’s councilor Bernard Kenosi withdrew his candidacy in the final hour for the equally admired deputy chair paving the way for Solomon Dikgang of BPF, seen as long sealed ‘I scratch your back and you scratch mine’ gentleman’s agreement between the contenders.

Both parties entered the race with a tie of votes torn between 12 councillors each, translating for election race that will go down to the wire definitely. But that will not be the case as two BPF councilors shifted their allegiance to the ruling party during the first race for Chairmanship held in a secret ballot and no sooner was the election concluded then the ruling party answered back by withdrawing its candidacy for the deputy chair position to give BPF’s Dikgang the post on a silver platter unopposed.

BPF councilor Vuyo Notha confirmed the incident in an interview on Wednesday, insisting the party NEC was determined to “investigate the matter soon”. “During the race for the Chairmanship, two more BPF voted for alongside the ruling party membership. It was clear Dikgang voted alongside the BDP as immediately after the vote for Chairmanship was concluded, Kenosi withdraw his candidacy to render Dikgang unopposed as a payback,” Notha added.

As for the other vote, Makolo ward councilor will not be drawn for the identity preferring instead to say: “BPF NEC will convene all the councilors to investigate the matter soon and we will take from there.” Notha will also not be drawn to conclude may be the culprit councilors could have defected to the ruling party silently.

“If they are no longer part of us they should say so and a by-election be called,” was all he could say. As it stands now, the law forbids sitting Councilors and Parliamentarians from crossing the floor to another party as to do so will immediately invite for a new election as dictated by the law. Incumbent politicians will therefore dare not venture for the unknown with a by-election that could definitely cost their political life and certainly their full benefits.

Notha could also not be dragged to link the culprit councilors actions to BPF Serowe region Chairperson Tebo Thokweng who has silently defected to the ruling party and currently employed by the party businessman and former candidate for Serowe West Moemedi Dijeng as PRO for the highly anticipated cattle abattoir project in Serowe.

“As for Thokweng he has not resigned from the party but from the region’s chairmanship,” he said. WeekendPost investigations suggest Thokweng is the secret snipper behind the recruitment drive of the votes for the elections and is determined to tear the party dominance in Serowe and the neighbouring villages asunder including in Palapye going forward.

This publication’s investigations also show BPF’s Radisele and UDC’s Mokgware/Mogome councilors are under the radar of investigations for the votes-themselves associated with the workings and operations of Thokweng.

“NEC will definitely leave no stone unturned with their investigations to get into the bottom of the matter. Disciplinary actions will follow certainly,” Notha concluded, underscoring the need to toe the party line to set a good precedent. For the youthful councilor, the actions of his peers has set a wrong precedent which has to be dealt with seriously to deter future culprits.

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