As Botswana celebrates a new year, the political temperature will certainly increase as 2019 is the year for national elections. Never in the history of Botswana has there been so much tension leading to the elections.
Prior to the elections all political parties will be having congresses/conferences to in preparation for the elections. The national nlections are expected to be held in October as has been the tradition. And in 2019, the outcomes are not guaranteed for any political party. First it starts with the extension of voter registration by the Independent Electoral Commission to March 2019. A new voter registration window has been opened between January to March 2019.
IEC has set itself a target of a million voters and currently they are around 500 thousand registered voters. A key concern for the IEC still remains voter trafficking even with the extended registration. Some analysts have predicated there may be a further need for a supplementary voter registration later in the year if the IEC doesn’t reach its target.
Key political events to watch are the ongoing cooperation talks between the opposition parties; the winning back of AP to the Umbrella Movement; the BMD fight with the UDC taken to court; the anticipated BDP Congress were for the first time there will be a challenger to the Presidency of the Party; and the phenomenon of the BDP vs BDP through the courts.
Starting with the opposition, it is fairly safe to say the marriage between the Botswana National Front and Botswana Congress Party through the Umbrella for Democratic Change is intact. What may linger is the division of constituencies between the two mature political parties in the event that UDC succeeds in its full expulsion of BMD or if AP decides not to be part of the Umbrella Movement. Some constituencies became free after the UDC expelled the BMD. These were the constituencies that had been allocated to the BMD previously. For now, it would appear the BNF and BCP have some sort of a formula in the sharing of the freed-up constituencies.
What appears to be of immediate interest to the UDC though is not to hurry on sharing the spoils of the freed-up constituencies, but to seek further cooperation with other political parties. AP has been the primary target, but the effort to get them back to the UDC fold will prove to be a difficult task. AP is still sulking after feeling betrayed by the leadership of the UDC when they had a bruising fight with the BMD faction of Sydney Pilane.
They felt the leadership of the UDC could have done more to avert the destruction of the BMD by Sydney Pilane and his followers. Reached for comment, one political analyst said AP however also needs to introspect, “going it alone may not necessarily be a wise move”. Some serious soul searching needs to happen early in the year. The party hasn’t reached the heights of the “Mmono Fever” when there were still BMD.
Resources have been limited, likewise the penetration of the party to would be voters hasn’t been that exciting. So, at the end of the day, the party may find it more convenient to be with the UDC then to slug it out on their own. On the whole, it remains to be seen in 2019 if the opposition will rid itself of its curse of internal squabbles and approach the National Elections as one united front.
Not that things are any better at the BDP. Actually, they appear worse at this stage. The BDP had a difficult 2018 which is going to jeopardize their chances for an increased majority in parliament. Factionalism and elusive unity are the main challenges. It all started with the worst transition between the President Mogkwetsi Masisi and his predecessor Ian Khama. This has now brewed to an open out war between the two Heads of State. It has become so bad that nationally you are either a Masisi or a Khama person. This is the new ugly face of factionalism within the BDP. It has replaced “Barata Phati” versus “A-Team”.
From the transition, what followed was a complete kindergarten mess of what was Bulelwa Ditswe. Scores of Cabinet Ministers lost their constituencies to political minnows. All fingers pointed at Tsholetsa House, and in particular the Secretary General Mpho Balopi. Even at one stage the President bemoaned the quality of candidates Bulelwa Ditswe produced for the 2019 National Elections.
Put bluntly, one loosing Minister demeaning said “how could the BDP entrust the primary elections to Mpho Balopi, who is political lacking and one not fit even to lead a Borehole syndicate”. He even questioned if let alone he has ever been a class monitor before, thereby questioning his leadership qualities. The Secretary General of the BDP has not enjoying any peace. Apart from him being blamed for the poor showing of the BDP in the 2014 National Elections, he’s been seen as the Achilles heel of the Masisi Administration.
He has become unpopular with the democrats, with many seeing him as divisive and having a dangerous ambition to eventually succeed Masisi. He was accused in 2018 for dicampaigning Vice President Slumber Tsogwane, for posing conflict of interest in being party to International State Visits by President Masisi and using BDP donor money for his own use. Things got out of control towards at the end of the year were he was accused of assaulting a Party Member at Tsholetsa House. The matter was reported to the Police and is before the courts.
The phenomenon of the BDP vs BDP through the party became a common feature in 2018 and is still frustrating the party. Kamal Jacobs of Lobatse took President Masisi to court to challenge the constitutionality of Masisi being president of BDP. The matter is before court and a ruling is expected soon. In another case, Biggie Butale has also gone to court to challenge the BDP on his loss in the primary elections. Prior to that, Tshekedi Khama had approached the courts to bar Moemedi Dijeng to stand as a candidate in the Serowe North primary elections.
The highlight of 2018 for BDP is when out of the blue, Pelonomi Venson- Moitoi announced she will be challenging President Masisi for the Party Presidency. This set the cat amongst the pigeons. But Pelonomi is no ordinary Pelonomi Venson. She has the full backing of former President Khama, and her candidacy is seen as a proxy for the Khama’s. Scores of Bangwato descended upon the main Kgotla before Christmas to what was originally deemed an ordinary Kgotla meeting to be addressed by Kgosi Kgolo Khama, but what then turned out to be an unofficial launch of Moitoi.
It became apparent at that meeting that Khama is going to deliver on his promise to take the fight to Masisi, and Moitoi is going to be the first foot soldier. Team Moitoi is going to rely on the Khama magic, and is also getting resourced by wealthy South Africans. A notable size of current ministers are going to be part of her team, so will be several other elders of the BDP.
The Serowe meeting makes for a difficult BDP National Council slated for March and an Elective Congress thereafter in July. Many in the BDP are predicting that Masisi is going to be first unelected President, and that his tenure will end in 2019. Unelected because he would have run through a mandate of succession but won’t have the votes within the BDP to seek his own fresh mandate at the Congress.
Those in support of Masisi say he needs to win an election as BDP President and there is a growing school of thought that he needs to be given a clear mandate to govern on his own terms. What is worrying for his supporters is that, “you cannot be president without carrying both the north and south of the country. Like in South Africa were you can’t win the leadership of the ANC without Kwazulu Natal, likewise you need the north and central of Botswana delegates to win the BDP leadership. That’s were the most candidates come from,” said a source.
“As for Moitoi the question remains, is Botswana ready for a female President? And how people view her as being used by the Khama’s to take back power to them? That’s the obstacle she has to overcome.” After all, Botswana enters the new year, electioneering by political parties is going to be intense. Each party has its fair share of challenges, but nonetheless expect long bruising battles ahead. There will be few winners especially with the BDP. The faction that wins will seek to extinguish the rival faction for good, politically and economically.
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.