A contractor has raised a red flag over what he says are matters of clear malpractice and maladministration of government funds. In a scathing letter passed to Weekend Post, Moira (Pty) Ltd attorney raises some basic contractual contraventions between Public Procurement and Asset Disposal Board (PPADB), department of Roads and the contractor awarded.
The contractor conferred, Emark (Pty) Ltd, has been awarded the tender in question at a whopping P28 million under dubious circumstances. The tender comprises a “works contract for the resealing and road marking of Tshootsha – Mamuno road section II (40km) tender no. MTC 240/55/2017-2018.” Office of the President has this week been informed of the tender dispute.
In the dispute, Kgotso Botlhole of Lekorwe Legal Consultants, on behalf of Moira (Pty) Ltd, urged the OP in a scathing letter to halt implementation of the said multimillion road project until the matter is resolved at the courts. Information reaching Weekend Post suggests that the contractor (Emark) wants to implement the project so that they use the move as an excuse in case they lose the matter at the courts – where they believe it will be too late.
In the said letter to OP titled, “complaint of serious maladministration by the Director of the Department of Roads and the Chairperson of the Ministerial Tender Committee (MTC) in the Ministry of Transport and Communication/Moira (Pty) Ltd, (which is the client) /PPADB, Attorney General and Emark Enterprises (Pty) Ltd – case no: UAHGB – 00029 – 19” the contractor queries some essential tender procedures in the awarding of the tender.
The letter dated 5 February 2019 and which was copied to Permanent Secretary in the Ministry of Transport and Communications, Kabelo Ebineng as well as to PPADB urges Permanent Secretary to the President, Carter Morupisi to tread carefully not to implement the project until justice is reached.
“Our client is currently engaged in litigation commenced on an urgent basis against the Department of Roads (represented by AG) seeking to halt the implementation of a works contract titled “a works contract for the resealing and road marking of Tshootsha – Mamuno road section II (40km) tender no. MTC 240/55/2017-2018” which was awarded to Emark (Pty) Ltd,” attorney Botlhole told the highest decision making office in the country.
He further pointed out that having perused Maipelo Ragalase’s affidavit, who is the acting Deputy Permanent Secretary (Corporate Services) in the Ministry of Transport and Communication, there are certain matters of clear malpractice and maladministration of government funds which have been committed by both herself and the Director of Roads.
Chief among the irregularities he cited that: “first, the Director of Roads issued a notice of commencement handing over the site to Emark without first having received a performance bond giving security in favour of the government of Botswana for Emark’s performance of the works.” This is notwithstanding that in the letter of acceptance concluding a contract with Emark for the performance of the works, a certain paragraph in question therefore clearly provides that:
“You shall agree to submit a Performance Security bond of 5% of the amount as stated in this letter of acceptance as per clause 4.2 of condition of contract for construction for building and engineering works designed by the employer within 28 calendar days from the date of acceptance of this letter (date of signing the contract acknowledgement), following the receipt of which, the engineer’s order to commence work will be issued,” the lawyer pointed this to OP as his main area of ‘emphasis.’
He stressed that the letter of acceptance is dated 17 December 2018 while Emark issued a letter dated 14 January 2019 apparently attaching a performance bond only issued by Old Mutual two days later, and on 16 January 2019. “Irrespective of when the bond was actually provided between these two dates, the Director has already issued a notice to Emark for the commencement of the works on 11 January 2019,”Botlhole highlighted to the Office of the President.
He also claimed to OP that the Director of Roads, Modisa Segokgo, authorized the occupation of site and the commencement of works by a civil contractor for a project awarded in the amount of P 28, 046, 343. 22 to be paid by the government, “without first ensuring that security is furnished to the government for the performance of the contract by Emark.”
The Moira company attorney, which lost the bid in the second position as they ran short of half a million to reach the 28 million mark, said “this is a clear act of unlawful maladministration inexplicably placing the government at an unnecessary and wholly avoidable fiscal risk. This behavior does not conform with the letter of acceptance, nor to any standard government practice.”
Secondly, the attorney further told OP that PPADB, acting in terms of Regulation 79(1) of the Public Procurement and Asset Disposal Regulations S.I. 12 of 2006 (Regulations) issued a directive to the Chairperson of the MTC and the Department of Roads to cease all procurement processes related to the tender pending the resolution of their client’s complaint, which was pending before it. The letter communicating this directive is dated 11 January 2019, he said.
“In her affidavit Ag. DPS (Corporate Services) Ragalase claims to have only seen the letter on 16 January 2019, after the Director had (unlawfully) issued a notice to commence the works. Be that as it may, the actions of both Ms. Ragalase and the Director thereafter do not demonstrate any level of adherence to the directive issued by PPADB,” Botlhole pointed out.
This is so because, he said a payment certificate was submitted in favour of Emark for the mobilization (advance payment) of the project on the very next day of 17 January 2019; and on 25 January 2019, the payment certificate was checked by one L. Lekgaotswe and approved on this date. Thereafter, he added that the Director of Roads inspects the certificate and requests that payment be made on 29 January 2019.
He continued: “he does so despite having been served with our client’s application on the same date. The payment is then received by the accounts department on 30 January 2019 and sent to government revenue office on 31 January 2019.” According to Botlhole, the conduct of both the Director and Ms. Ragalase clearly disregards the directive issued to them by PPADB and Regulation 79(1). Instead of seeking to halt the implementation of the works, he said they do the opposite, frantically seeking to implement the contract without following due process, such as taking receipt of the relevant bonds, and awaiting a decision from the PPADB. As at the date of this letter, he mentioned that the PPADB is yet to determine his client’s complaint.
Thirdly, and similar to how the Director issued a notice to commence without first taking receipt a performance bond from Emark, the Director has authorised the payment of advance payment without first taking receipt of the advance payment guarantee (bond), the attorney highlighted to Carter Morupisi.
“We believe these administrative irregularities by both the Chairperson and the Director are serious in nature, and warrant that your esteemed office investigate what we have alleged in herein and take disciplinary action against both the Director and the Chairperson. It appears quite clearly to us that they are hastily trying to implement the award of the tender, on the misguided belief that this will frustrate the relief sought by our client in the intended review application.”
Conduct such as what we have detailed above seriously erodes public confidence in the procurement processes employed by government, he said adding that there is no rational/acceptable reason to explain the conduct of these two officers. “If the government itself does not comply with the laws it created, it losses its legitimacy and becomes a catalyst for inexplicable and corrupt practices. These officers must be called to account, and we beseech your esteemed office to act accordingly,” he said.
Temporarily, when approached for a comment on the matter, Permanent Secretary in the Ministry of Transport and Communication Kabelo Ebineng said he cannot immediately remember details to the disputed matter and instead referred this publication to the Director of Roads Segokgo. Segokgo was said to be outside the office at the time of press. However, his deputy, Kitso Chibule spoke to this publication but could not be drawn into the issue at hand and instead referred this reporter back to the PS in the Ministry.
Meanwhile, in the court case PPADB is one of the respondents cited in the matter and they have not opposed the relief sought by Moira and they have instead filed a notice to abide. AG filed an answering affidavit opposing the application on behalf of both the Chairperson of the MTC and the Department of Roads.
The affidavit is disposed to by Maipelo Ragalase, the acting Deputy Permanent Secretary (Corporate Services) in the Ministry of Transport and Communication. She is also the Chairperson of the MTC in question. The parties appeared before Acting Judge Khan on 31 January 2019, who decided having heard the parties briefly, that the AG be given time to file its answering affidavit before the matter is heard on 6 February 2019. The case continues.
Here is how one Permanent Secretary encapsulates the clear tension between democracy and bureaucracy in Botswana: “President Mokgweetsi Masisi’s Government is behaving like a state surrounded with armed forces in order to capture it or force its surrender. The situation has turned so volatile, for tomorrow is not guaranteed for us top civil servants.
These are the painful results of a personalized civil service in our view as permanent secretaries”. Although his deduction of the situation may be summed as sour grapes because he is one of the ‘victims’ of the reshuffle, he is convinced this is a perfect description of the rationale behind frequent changes and transfers characterising the current civil service.
The result of it all, he said, is that “there is too much instability at managerial and strategic levels of the civil service leading to a noticeable directionless civil service.” He continued: “Changes and transfers are inevitable in the civil service, but to a permissible scale and frequency. Think of soccer team coach who changes and transfers his entire squad every month; you know the consequences?”
The Tsunami has hit hard at critical departments and Ministries leaving a strong wave of uncertainty, many demoralised and some jobless. In traditional approaches to public administration, democracy gives the goals; and bureaucracy delivers the technical efficiency required for implementation. But the recent moves in the civil service are indicative of conflicting imperatives – the notion of separation between politicians and administrators is becoming blurred by the day.
“Look at what happened to Prisons and BDF where second in command were overlooked for outsiders, and these are the people who had sacrificially served for donkey’s years hoping for a seat at the ladder’s end. The frequency of the changes, at times affecting the same Ministry or individual also demonstrates some level of ineptitude, clumsiness and lack of foresight from those in charge,” remarked the PS who added that their view is that the transfers are not related to anything but “settling scores, creating corruption opportunities and pushing out perceived dissident and former president, Ian Khama’s alleged loyalists and most of these transfers are said to be products of intelligence detection.”
Partly blaming Khama for the mess and his unwillingness to let go, the PS dismissed Masisi for falling to the trap and failing to outgrow the destructive tiff. “Khama is here to stay and the sooner Masisi comes to terms with the fact that he (Masisi) is the state President, the better. For a President to still be making these changes and transfers signals signs of a confused man who has not yet started rolling his roadmap, if at all it was ever there. I am saying this because any roadmap comes with key players and policies,” he concluded.
The Ministry of Health and Wellness seems to be the most hard-hit by the transfers, having experienced three Permanent Secretaries changes within a year and a half. Insiders say the changes have everything to do with the Ministry being the centre of COVID-19 tenders and economic opportunities. “The buck stops with the PS and no right-thinking PS can just allow glaring corruption under his watch as an accounting officer. Technocrats are generally law abiding, the pressure comes with politically appointed leaders racing against political terms to loot,” revealed a director in the Ministry preferring anonymity.
The latest transfer of Kabelo Ebineng she says was also motivated by his firm attitude against the President’s blue-eyed Task Team boys. “The Task Team wants to own the COVID-19 pandemic and government interventions and always cry foul when the Ministry reasserts itself as mandated by law,” said the director who added that Masisi who was always caught between the crossfire decided on sacrificing Ebineng to the joy of his team as they (Task Team) were in the habit of threatening to resign citing Ebineng as the problem.
Ebineng joins the Office of the President as a deputy Coordinator (government implementation and coordination office).The incoming PS is the soft-spoken Grace Muzila, known and described by her close associates as a conformist albeit knowledgeable.
One of the losers in the grand scheme is Thato Raphaka who many had seen as the next PSP because of his experience and calm demeanour following a declaration of interest in the Southern African Development Community (SADC) Secretary post by the current PSP, Elias Magosi.
But hardly ten months into his post, Raphaka has been transferred out to the National Strategy Office in what many see as a demotion of some sort. Other notable changes coming into OP are Pearl Ramokoka formerly with the Employment, Labour and Productivity Ministry coming in as a Permanent Secretary and Kgomotso Abi as director of Public Service Reforms.
One of the ousted senior officers in the Office of the President warned that there are no signs that the changes and transfers will stop anytime soon: “If you are observant you would have long noticed that the changes don’t only affect senior officers but government decisions as well. A decision is made today and the government backtracks on it within a week. Not only that, the President says this today, and his deputy denies it the following day in Parliament,” he warned.
Some observers have blamed the turmoil in the civil service partly to lack of accountable presidential advisers or kitchen cabinet properly schooled on matters of statecraft. They point out that politicians or those peripheral to them should refrain from hampering the technical and organizational activities of public managers – or else the party (reshuffling) won’t stop.
In the view expressed by some Permanent Secretaries, Elias Magosi, has not really been himself since joining the civil service; and has cut a picture of indifference in most critical engagements; the most notable been a permanent secretaries platform which he chairs. As things stand there is need to reconcile the imperatives of democracy and democracy in Botswana. Peace will rein only when public value should stand astride the fault that runs between politicians and public managers.
Former Permanent Secretary to the President, Carter Morupisi, is fighting for survival in a matter in which the State has charged him and his wife, Pinnie Morupisi, with corruption and money laundering.
Morupisi has joined a list of prominent figures that served in the previous administration and who have been accused of corruption during their tenure in office. While others have been emerging victorious, Morupisi is yet to find that luck. The High Court recently dismissed his no case to answer application.
United States President, Joe Biden, is faced with a decision to make relating to the Covid-19 vaccine intellectual property after 175 former world leaders and Nobel laurates joined the campaign urging the US to take “urgent action” to suspend intellectual property rights for Covid-19 vaccines to help boost global inoculation rates.
According to the world leaders, doing so would allow developing countries to make their own copies of the vaccines that have been developed by pharmaceutical companies without fear of being sued for intellectual property infringements.
“A WTO waiver is a vital and necessary step to bringing an end to this pandemic. It must be combined with ensuring vaccine know-how and technology is shared openly,” the signatories, comprising more than 100 Nobel prize-winners and over 70 former world leaders, wrote in a letter to US President Joe Biden, according to Financial Times.
A measure to allow countries to temporarily override patent rights for Covid related medical products was proposed at the World Trade Organization by India and South Africa in October, and has since been backed by nearly 60 countries.
Former leaders who signed the letter included Gordon Brown, former UK Prime Minister; François Hollande, former French President; Mikhail Gorbachev, former President of the USSR; and Yves Leterme, former Belgian Prime Minister.
In their official communication, South Africa and India said: “As new diagnostics, therapeutics and vaccines for Covid-19 are developed, there are significant concerns [about] how these will be made available promptly, in sufficient quantities and at affordable prices to meet global demand.”
While developed countries have been able to secure enough vaccine to inoculate their citizens, developing countries such as Botswana are struggling to source enough to swiftly vaccine their citizens, something which world leaders believe it would work against global recovery therefore proving counter-productive.
Since the availability of vaccines, Botswana has been able to secure only 60 000 doses of vaccines, 30 000 as donation as from the Indian government, while the other 30 000 was sourced through COVAX facility. Canada, has pre-ordered vaccines in surplus and it will be able to vaccinate each of its citizens six times over. In the UK and US, it is four vaccines per person; and two each in the EU and Australia.
For vaccines produced in Europe, developing countries are forced to pay double what European countries are paying, making it more expensive for already financially struggling economies. European countries however justify the price of vaccines and that they deserve to buy them cheap since they contributed in their development.
It is evident that vaccines cannot be made available immediately to all countries worldwide with wealthy economies being the only success story in that regard, something that has been referred to as a “catastrophic moral failure”, head of the World Health Organisation (WHO), Tedros Adhanom Ghebreyesus.
The challenge facing developing countries is not only the price, but also the capacity of vaccine manufactures to be able to do so to meet global demand within a short time. The proposal for a patent waiver by India and South Africa has been rejected by developed countries, known for hosting the world leading pharmaceutical companies such US, European Union, the United Kingdom, and Switzerland.
According to the Financial Times, US business groups including pharmaceutical industry representatives, have urged Biden to resist supporting a waiver to IP rules at the WTO, arguing that the proposal led by India and South Africa was too “vague” and “broad”.
The individuals who signed the letter, including Nobel laureates in economics as well as from across the arts and sciences, warned that inequitable vaccine access would impact the global economy and prevent it from recovering.
“The world saw unprecedented development of safe and effective vaccines, in major part thanks to US public investment,” the group wrote. “We all welcome that vaccination rollout in the US and many wealthier countries is bringing hope to their citizens.”
“Yet for the majority of the world that same hope is yet to be seen. New waves of suffering are now rising across the globe. Our global economy cannot rebuild if it remains vulnerable to this virus.” The group warned that fully enforcing IP was “self-defeating for the US” as it hindered global vaccination efforts. “Given artificial global supply shortages, the US economy already risks losing $1.3tn in gross domestic product this year.”