MultiChoice continues battle against BOCRA
MultiChoice Botswana is not going down without a fight in its race against time waging of war against Botswana Communications Regulatory Authority (BOCRA) – a spirited bid to avoid price control by the communications regulator.
In the coming fortnight, MultiChoice will have its fate laid bare by the Court of Appeal which will decide whether BOCRA should regulate the subscription service manager tariffs. MultiChoice subscribers who have been complaining about the high pricing of the subscription service manager are crossing their fingers that the highest court in Botswana endorses Justice Tshepo Motswagole’s High Court ruling which supports BOCRA’s move to control the South African company’s tariffs.
On the other hand it is apparent that MultiChoice sees the move by BOCRA as a financial blow to its pay television business. The South African company has been increasing prices citing high business operating costs and the last year’s High Court decision was seen as a financial impediment by MultiChoice who even threatened to live the country and its strict tariff jurisdiction. While MultiChoice’s chief argument, something which the company still maintains to the Court of Appeal, is that BOCRA’s decision is risky in that it might set precedence for other African regulators.
MultiChoice enjoys a monopoly of multi-channel pay television services across the African continent. The crux of the matter on the MultiChoice versus BOCRA corporate civil case tussle hangs on the interpretation of Clause 13 of the license BOCRA granted MultiChoice Botswana. This Clause which licensed MultiChoice to operate as a subscription service manager in Botswana requires MultiChoice Botswana to amongst other things, submit to BOCRA in writing, a proposal in respect of subscription fees it intends to apply or send tariff increment to the regulator for approval.
Clause 13 is also buttressed by Section 90 of the BOCRA Act which requires all licensed service providers to submit their intended tariffs to BOCRA for approval. MultiChoice’s cry is that BOCRA is trying to abuse Clause 13 or just misinterpreting the language used in the piece of legislation. “We submit that the language of this provision is clear. BOCRA may impose conditions and restrictions on a licensee in relation to its own performance of the activities for which the licence is required. It may set conditions for the performance of those activities and may impose restrictions on them,” argues MultiChoice.
However the pay television giant further says there is nothing in the language of the section to suggest that BOCRA may impose “conditions” on a licensee, which are unrelated to its own conduct, purely to regulate the conduct of a third party. “…BOCRA included clause 13 in MultiChoice Botswana’s licence with the avowed purpose of regulating Multi Choice Africa’s tariffs. That was an impermissible anterior purpose,” argues MultiChoice. MultiChoice Botswana further argues that no BOCRA legislation directly regulates its parent company Multi Choice Africa’s broadcasting activities.
Also the company states that MultiChoice Africa is not directly subject to BOCRA licence regulations, therefore the regulator is trying to impose regulation on MultiChoice Africa’s broadcasting activities which are also MultiChoice Botswana’s. BOCRA emphasizes Mutlichoice compliance to Clause 13 as failing which the subscription business supplier would be operating in Botswana regulatory jurisdiction illegally.
When tackling the argument that BOCRA is trying to impose its legislation on Multhichoice parent company though its Botswana offspring, the regulator dismisses that as a non-started which would not hold water. “….There cannot be no plausible reason to argue that pricing in Botswana must the same as for the rest of Africa because the prices to the various subscribers differ from country anyway. As far as content is concerned, it is clear that local television services are provided through the DStv platform and content can vary from country to country. It appears that MultiChoice as a group is even considering pay-per view services being provided in certain countries,” states BOCRA.
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The curtain came down at the PAP session with pomp and FUNFAIR
It was pomp and funfair at the Pan-African Parliament (PAP) on March 18 as the African Cultural Music and Dance Association (ACUMDA) brought the curtains down on the PAP session with a musical performance.
The occasion was the celebration of the Pan-African Parliament Day (PAP Day) which commemorated the inauguration of the first Parliament of the PAP on 18 March 2004 at the African Union Headquarters in Addis Ababa, Ethiopia.
The celebrations took place at the seat of the Parliament in Midrand to “reflect on the journey” as the institution turns 19. The event sought to retrace the origin and context of the establishment of the PAP.
The celebrations included musical performances by ACUMDA and a presentation by Prof. Motshekga Mathole of the Kara Heritage Institute on “Whither Pan-Africanism, African Culture, and Heritage.”
The PAP Day was officially launched in 2021 to educate citizens about the Continental Parliament and ignite conversations about its future in line with its mandate.
The establishment of the PAP among the AU organs signalled a historical milestone and the most important development in the strengthening of the AU institutional architecture. It laid solid groundwork for democratic governance and oversight within the African Union system and provided a formal “platform for the peoples of Africa to get involved in discussions and decision-making on issues affecting the continent.”
The genesis of the PAP can be legally traced back to 1991 with the adoption of the Treaty Establishing the African Economic Community, adopted on June 3, 1991, in Abuja (also known as the Abuja Treaty). This treaty defined the pillars and grounds for realizing economic development and integration in Africa and called for the creation of a continental parliament, among a set of other organs, as tools for the realization of African integration and economic development. This call was reemphasized in the Sirte Declaration of 1999, which called for the accelerated implementation of the provisions of the Abuja Treaty.
PAP celebrated its ten years of existence in March 2014, a year which coincided with the adoption, on June 27, 2014, in Malabo, Equatorial Guinea, of the Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament (PAP Malabo Protocol), which, once in force, will transform the PAP into a legislative body of the AU. It requires a minimum of 28 countries to ratify it before it comes into force.
Therefore, the commemoration of PAP Day serves as a reminder to the decision-makers around the continent to fulfil their commitment to the PAP by ratifying its Protocol, 19 years after sanctioning its establishment. 14 AU member states have so far ratified the Malabo Protocol.
The celebrations of PAP Day coincided with the closing ceremony of the sitting of the PAP Permanent Committees and other organs. The Sitting took place in Midrand, South Africa under the AU theme for 2023, “Accelerating the implementation of African Continental Free Trade Area (AfCFTA)” from 6 to 17 March 2023.
PAP President, H.E. Chief Fortune Charumbira, expressed appreciation to members for their commitment during the two-week engagement.
“We have come to the end of our program, and it is appropriate that we end on a high note with the PAP Day celebrations.
“We will, upon your return to your respective countries, ensure that the work achieved over the past two weeks is transmitted to the national level for the benefit of our citizens,” concluded H.E. Chief Charumbira.
PAP needs to priorities land issues-Prof Mathole
Prof Motshekga Mathole of the Kara Heritage Institute has advised the Pan-African Parliament (PAP) to prioritise the land issue in the continent if they are to remain relevant.
He said this while addressing the Plenary during the commemoration of PAP Day held at the PAP Chambers in Midrand, South Africa
The PAP Day was officially launched in 2021 to commemorate the inauguration of the first Parliament on 18 March 2004 in Addis Ababa, Ethiopia. Intended as a platform for people of all African states to be involved in discussions and decision-making on problems and challenges facing the continent.
In a speech titled “Whither Pan-Africanism, African Culture, and Heritage,” Prof Mathole stated that for PAP to remain relevant, it must address the continent’s key land dilemma, which he feels is the core cause of all problems plaguing the continent
“If this Parliament is to be taken seriously, ownership of land and natural resources must be prioritized at the national and continental levels. Africans are not poor; they are impoverished by imperialist nations that continue to hold African land and natural resources,” said Prof Mathole.
“When African leaders took power from colonialists, they had to cope with poverty, unemployment, and other issues, but they ignored land issues. That is why Africa as a whole is poor today. Because our land and minerals are still in the hands of colonizers, Africa must rely on Ukraine for food and Europe for medical.”
Prof Mathole believes that the organization of the masses is critical as cultural revolution is the only solution to Africa’s most problems.
“We need a cultural revolution for Africa, and that revolution can only occur if the masses and people are organized. First, we need a council of African monarchs since they are the keepers of African arts, culture, and heritage. We need an African traditional health practitioners council because there is no ailment on the planet that cannot be healed by Africans; the only problem is that Africans do not harvest and process their own herbs,” he said.
Meanwhile, PAP President, H.E. Hon Chief Fortune Charumbira expressed satisfaction with the commitment displayed throughout the two-week period and said the PAP Day celebrations were befitting curtains down to the august event.
“On this high note of our two-week engagement, it is appropriate that we close our program on a high note with PAP celebrations, and I would like to thank everyone for your commitment, and please continue to be committed,” said H.E Hon Chief Charumbira.
PAP’s purpose as set out in Article 17 of the African Union Constitutive Act, is “to ensure the full participation of African people in the development and economic integration of the continent”. As it stands, the mandate of the Parliament extends to consultation and playing an advisory and oversight role for all AU organs pending the ratification protocol.
Also known as the Malabo Protocol, the Protocol to the consultative act of the AU relating to the PAP was adopted at the Assembly of Heads of State and Government summit in June 2014 and is intended to extend the powers of the PAP into a fully-fledged legislative organ. It requires a minimum of 28 countries to ratify it before it comes into force.
The commemoration of the PAP Day, therefore, serves as a reminder to the decision-makers around the continent to fulfil their commitment to the PAP by ratifying its Protocol, 17 years after sanctioning its establishment. 14 AU member states have so far ratified the Malabo Protocol.
The PAP Day commemoration also aims to educate citizens about the PAP and ignite conversations about the future of the continental Parliament in line with its mandate.
DPP drops Kably threat to kill case
The Botswana Democratic Party (BDP) Chief Whip and Member of Parliament for Letlhakeng/Lephephe Liakat Kably has welcomed the Directorate of Public Prosecution (DPP)’s decision not to prosecute BDP councillor, Meshack Tshenyego who allegedly threatened to kill him. However, the legislator has warned that should anything happen to his life, the state and the courts will have to account.
In an interview with this publication, Kablay said he has heard that the DPP has declined to prosecute Tshenyego in a case in which he threatened to kill him adding that the reasons he received are that there was not enough evidence to prosecute. “I am fine and at peace with the decision not to prosecute over evidential deficits but I must warn that should anything happen to my life both the DPP and the Magistrate will have to account,” Kablay said.
Connectedly, Kably said he has made peace with Tshenyego, “we have made peace and he even called me where upon we agreed to work for the party and bury the hatchet”.
The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the former Letlhakeng Sub-district council chairperson and currently councillor for Matshwabisi.
According to the charge sheet before the Court, councilor Tshenyego on July 8th, 2022 allegedly threatened MP Kably by indirectly uttering the following words to nominatedcouncilor Anderson Molebogi Mathibe, “Mosadi wa ga Liakat le ban aba gagwe ba tsile go lela, Mosadi wame le banake le bone ba tsile go lela. E tla re re mo meeting, ka re tsena meeting mmogo, ke tla mo tlolela a bo ke mmolaya.”
Loosely translated this means, Liakat’s wife and children are going to shed tears and my wife and kids will shed tears too. I will jump on him and kill him during a meeting.
Mathibe is said to have recorded the meeting and forwarded it to Kably who reported the matter to the police.
In a notice to the Magistrate Court to have the case against Tshenyego, acting director of Public Prosecutions, Wesson Manchwe cited the nolle prosequi by the director of public prosecution in terms of section 51 A (30) of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana as reasons for dropping the charges.
A nolle prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
“In pursuance of my powers under section 51 A (300 of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana, I do hereby stop and discontinue criminal proceedings against the accused Meshack Tshenyego in the Kweneng Administrative District, CR.No.1077/07/2022 being the case of the State vs Tshenyego,” said Manchwe. The acting director had drafted the notice dropping the charges on 13th day of March 2023.
The case then resumed before the Molepolole Magistrate Solomon Setshedi on the 14th of March 2023. The Magistrate issued an order directing “that matters be withdrawn with prejudice to the State, accused is acquitted and discharged.”