In what was supposed to be a landmark case in Botswana where Lobatse parliamentary aspirant Kamal Jacobs who lost Botswana Democratic Party (BDP) primaries was challenging the legitimacy of President Mokgweetsi Masisi as the party leader took a bitter twist on Wednesday when High Court Judge Michael Mothobi ruled that the sitting President is immune to suit in civil proceedings.
This follows a decision upheld by the Court of Appeal in Motswaledi versus BDP in 2009 where they held that the then President Ian Khama could not be sued because he enjoys total immunity from criminal and civil suits. Motswaledi, who was suspended from the party, was seeking reinstatement and to be declared the party’s parliamentary candidate at Gaborone Central. The court in unison agreed that section 41(1) granted Khama immunity, stating that the wording of the said provision were clear and unambiguous.
While arguing the case, Kamal Jacobs’ lawyer Kagisano Tamocha said the orders were sort against Masisi in his private capacity as a member of the 1st respondent (BDP). Tamocha argued that former president Lt Gen Ian Khama who is cited as the 3rd respondent in the matter, is the substantive and lawful President of the BDP. Tamocha asked the court to make a finding as whether Masisi holding the office of the presidency of the BDP in accordance with the constitution of the BDP.
In Motswaledi case the court stated immunity was there to insure that the president, while carrying out his duties, is not embarrassed by dealing with lawsuits and civil claims. “The meaning of section 41(1) is that when the President acts in a capacity other than his capacity as head of state, his act is to be categorised as an act in his private capacity,” the judgement states.
Tamocha argued that Masisi would either have to withdraw his immunity under section 41 of the country’s constitution to allow for a proper determination of the question brought forth in relation to the presidency of the BDP. While delivering his ruling Michael Mothobi said the applicant’s decision to have the 3rd respondent, former President Lt Gen Ian Khama as a joinder remained a conundrum. Mothobi said Khama has no interest in the matter thus the benefit of his evidence ought to have been sought.
Judge Mothobi said the attorney general cited as Amicus curiae or friend of the court led by Otlaadisa Kwape was not partisan and provided an invaluable insight in the matter. Mothobi also dismissed the 7th respondent in the matter who is cited as Reginal Chairperson (Botswana Democratic Party- Southern Region) on grounds of Locus Standi. The 7th respondent was sued in his capacity as the regional secretary of the BDP Southern Region Chairmen and whose better and further particulars are to the Applicant unknown.
Michael Mothobi also ruled that the matter is not urgent. He said Kamal and his lawyers failed to supply material and demonstration of imperial evidence. “You failed to show us course why the substantial redress cannot be afforded, no methods of interdiction. You approach must be holistic”, said Mothobi. He however said the former President can still be joined in the matter.
Government is currently sitting on 4 400 vacant posts that remain unfilled in the civil service. This is notwithstanding the high unemployment rate in Botswana which has been exacerbated by the recent outbreak of the deadly COVID-19 pandemic.
Just before the burst of COVID-19, official data released by Statistics Botswana in January 2020, indicate that unemployment in Botswana has increased from 17.6 percent three years ago to 20.7 percent. “Unemployment rate went up by 3.1 percentage between the two periods, from 17.6 to 20.7 percent,” statistics point out.
Leading commercial bank, First National Bank Botswana (FNBB), expects the central bank to sharpen its monetary policy knife and cut the Bank Rate twice in the last quarter of 2020.
The bank expects a 25 basis point (bps) in the beginning of the last quarter, which is next month, and another shed by the same bps in December, making a total of 50 bps cut in the last quarter. According to the bank’s researchers, the central bank is now holding on to 4.25 percent for the time being pending for more informed data on the economic climate.
An audit of the accounts and records for the supply of food rations to the institutions in the Northern Region for the financial year-ended 31 March 2019 was carried out. According to Auditor General’s report and observations, there are weaknesses and shortcomings that were somehow addressed to the Accounting Officer for comments.
Auditor General, Pulane Letebele indicated on the report that, across all depots in the region that there had been instances where food items were short for periods ranging from 1 to 7 months in the institutions for a variety of reasons, including absence of regular contracts and supplier failures. The success of this programme is dependent on regular and reliable availability of the supplies to achieve its objective, the report said.
There would be instances where food items were returned from the feeding centers to the depots for reasons of spoilage or any other cause. In these cases, instances had been noted where these returns were not supported by any documentation, which could lead to these items being lost without trace.
The report further stressed that large quantities of various food items valued at over P772 thousand from different depots were damaged by rodents, and written off.Included in the write off were 13 538 (340ml) cartons of milk valued at P75 745. In this connection, the Auditor General says it is important that the warehouses be maintained to a standard where they would not be infested by rodents and other pests.
Still in the Northern region, the report noted that there is an outstanding matter relating to the supply of stewed steak (283×3.1kg cans) to the Maun depot which was allegedly defective. The steak had been supplied by Botswana Meat Commission to the depot in November 2016.
In March 2017 part of the consignment was reported to the supplier as defective, and was to be replaced. Even as there was no agreement reached between the parties regarding replacement, in 51 October 2018 the items in question were disposed of by destruction. This disposal represented a loss as the whole consignment had been paid for, according to the report.
“In my view, the loss resulted directly from failure by the depot managers to deal with the matter immediately upon receipt of the consignment and detection of the defects. Audit inspections during visits to Selibe Phikwe, Maun, Shakawe, Ghanzi and Francistown depots had raised a number of observations on points of detail related to the maintenance of records, reconciliations of stocks and related matters, which I drew to the attention of the Accounting Officer for comments,” Letebele said in her report.
In the Southern region, a scrutiny of the records for the control of stocks of food items in the Southern Region had indicated intermittent shortages of the various items, principally Tsabana, Malutu, Sunflower Oil and Milk which was mainly due to absence of subsisting contracts for the supply of these items.
“The contract for the supply of Tsabana to all depots expired in September 2018 and was not replaced by a substantive contract. The supplier contracts for these stocks should be so managed that the expiry of one contract is immediately followed by the commencement of the next.”
Suppliers who had been contracted to supply foodstuffs had failed to do so and no timely action had been taken to redress the situation to ensure continuity of supply of the food items, the report noted.
In one case, the report highlighted that the supplier was to manufacture and supply 1 136 metric tonnes of Malutu for a 4-months period from March 2019 to June 2019, but had been unable to honour the obligation. The situation was relieved by inter-depot transfers, at additional cost in transportation and subsistence expenses.
In another case, the contract was for the supply of Sunflower Oil to Mabutsane, where the supplier had also failed to deliver. Examination of the Molepolole depot Food Issues Register had indicated a number of instances where food items consigned to the various feeding centres had been returned for a variety of reasons, including food item available; no storage space; and in other cases the whole consignments were returned, and reasons not stated.
This is an indication of lack of proper management and monitoring of the affairs of the depot, which could result in losses from frequent movements of the food items concerned.The maintenance of accounting records in the region, typically in Letlhakeng, Tsabong, and Mabutsane was less than satisfactory, according to Auditor General’s report.
In these depots a number of instances had been noted where receipts and issues had not been recorded over long periods, resulting in incorrect balances reflected in the accounting records. This is a serious weakness which could lead to or result in losses without trace or detection, and is a contravention of Supplies Regulations and Procedures, Letebele said.
Similarly, consignments of a total of 892 bags of Malutu and 3 bags of beans from Tsabong depot to different feeding centres had not been received in those centres, and are considered lost. These are also not reflected in the Statement of Losses in the Annual Statements of Accounts for the same periods.