The suspended Chief Operating Officer (COO) of Botswana Energy Regulatory Authority (BERA) Duncan Morotsi has taken the Board of the organisation to court. On the other hand the Board has moved swiftly to seek legal advice on the prospect of success in the review of proceedings and general guidance on other issues arising.
The COO, Morotsi, was suspended in June earlier this year for dubious appointment of a consultant from Tanzania, Edwin Kidiffu who would produce regulations for the Authority. Kidiffu is a legal practitioner employed by Energy and Water Regulatory Authority in Tanzania.
The COO’s grounds that the suspension be set aside are that the commission of inquiry violated the rule against bias in taking the decision to suspend him. The argument advanced by the COO is that the members of the Commission of inquiry assumed the roles of complainant, judge and jury in respect of his suspension. He further states that there was no meeting called to set up the commission of inquiry; and that he was being unfairly targeted because the decision to appoint Mr Kidiffu was authorized by the CEO.
The matter has led to a court case and a notice of opposition has been filed on behalf of the Authority and the case has been set for a roll call on 8 October 2018 at which directions for the further conduct of the matter will be issued. In advising the BERA Board the attorneys, Mboki Chilisa and Shathani Somolekae of Collins Chilisa Consultants wrote a letter marked ‘private and confidential’ to the BERA legal and Licensing Committee Chairperson, Kelebogile Moremi indicating that most of the points raised by the COO are devoid of merit .
Chilisa and Somolokae state in the confidential letter, a copy of which the Weekend Post is in possession of, that: “the COO [Morotsi] submits that he has been unfairly singled out for implementing a decision that was authorized by the CEO as principal officer of the Authority.”
According to the esteemed attorneys, the rule of parity in employment requires that where two employees in an organisation have committed an offence, all things being equal, they ought to be subjected to the same disciplinary consequences. They continued: “Failing to do so, renders the disciplinary action taken against the employee [Morotsi] who received the stiffer disciplinary sanction unfair.” But they indicate that there has not been any disciplinary action hence this argument by Morotsi will fall off.
The parity argument, they further say that is one that ought to be raised at the disciplinary inquiry if there is going to be one while adding that this is because it is concerned with the fairness of the imposition of a disciplinary sanction. “A suspension to aid investigation is not a disciplinary action, and it is therefore most difficult to sustain argument that seeks to impeach the validity of a suspension on the basis that other senior employees have not been suspended,” the lawyers wrote in the highly classified letter to BERA legal and Licensing Committee Chairperson.
They continued to state that it is not inconceivable that following completion of the investigation the Commission of Inquiry may conclude that the COO did not commit any disciplinary offence or that disciplinary action be taken against other employees. Mboki and Somolekae advise in the confidential letter that the argument about a violation of the parity principle is premature as no disciplinary action has been taken against the COO. Should, they further posit, the disciplinary actions be instituted against the COO arising from the procurement of the services of Kidiffu— it is an argument that the Authority will have to contend with.
The highly competitive attorneys stressed that: “there must be some justification if disciplinary action is only going to be taken against the COO in respect of a procurement exercise that was authorised by the CEO.” It is in the lawyers’ contention that the Commission of Inquiry should finalise its investigations and that if it forms the view that there is a prima facie case, it should recommend to the board the charges that should be preferred against the COO.
They also pointed out that the decision to appoint a commission of inquiry was unanimous hence quashing the COO’s argument that there was no meeting that resolved to set it up. The board must then deliberate on the recommendations, the secret letter from the two Counsels states, adding that, “the recommendations need not be limited to the COO and may extend to other senior employees should it appear that they also may have committee disciplinary forces.”
WHY COO MOROTSI WAS SUSPENDED
The classified letter from Mboki and Somolekae further states that on 5 June 2018, the board resolved to conduct an inquiry on the engagement of Kidiffu to provide consultancy services to BERA. The decision to conduct an inquiry was unanimous. It is understood that the terms of reference of the Committee of Inquiry were to conduct a full inquiry and to advise the board on whether an act of misconduct has been committed, and if so, recommend disciplinary or corrective measures to be taken. The Committee of Inquiry is constituted by three board members; Jonathan Moseki, Kenneth Kerekang and Matsapa Motswetla, of which Moseki was appointed Chairperson.
The letter posits: “Following constitution of Commission of Inquiry and after commencing its work, the Commission resolved on 11 June 2018 to suspend the COO pending a full investigation. They observed that the suspension was necessary in order to preserve the integrity of investigations. A suspension letter dated 11 June 2018 was issued to the COO. The letter advised that the suspension will be on full pay and that COO should not enter the Authority’s premises.”
The two lawyers said the Committee of Inquiry sought to ratify the suspension through a resolution adopted through the process of round robin, adding that a majority of the board members supported the decision to suspend the COO and that the resolution was ratified through a majority vote.
The preliminary Investigation report by the Commission of Inquiry however notes that “the only time the engagement of Kidiffu was discussed was in respect of logistics to host him in Botswana, at a management meeting at which the CEO, COO, Chief Finance Officer (CFO) and Human Resource Director (HRD) were present.”
THE CONTROVERSIAL PROCUREMENT OF KIDDIFU
The two well-regarded lawyers narrated that according to the CEO, at a management meeting held on 19 March 2018, at which the CEO; the COO; the Human Resource Director; the Chief Financial Officer were present, the COO tabled a request for the engagement of Kidiffu, to prepare draft regulations for promulgation in terms of the Act.
“Thereafter Kiddifu concluded a written agreement with BERA in respect of provision of the services. The agreement is date signed 18 April 2018 by Kidiffu, but there is no indication as to the date when the COO, who represented BERA, signed it. For purposes of completeness, we note that discussions on the engagement of Kidiffu had started in February 2018 and these were conducted through email exchanges between the COO and Kidiffu. The first invoice for work done is dated 9 March 2018.”
In terms of the agreement, it further says that Kidiffu was to be paid the amount of USD15 000 (about P 160 000.) payable in three installments and that the Authority was required to meet all Kidiffu’s travel and accommodation costs during such times as he may be needed in Botswana, and the assignment was required to be completed by 31 July 2018.
Former Umbrella for Democratic Change (UDC) Member of Parliament for Gaborone North, Haskins Nkaigwa has confirmed his departure from opposition fold to re-join the ruling Botswana Democratic Party (BDP).
Nkaigwa said opposition is extremely divided and the leadership not in talking terms. “They are planning evil against each other. Nothing much will be achieved,” Nkaigwa told WeekendPost.
“I believe my time in the opposition has come to an end. It’s time to be of value to rebuilding our nation and economy of the country. Remember the BDP is where I started my political journey. It is home,” he said.
“Despite all challenges currently facing the world, President Masisi will be far with his promises to Batswana. A leader always have the interest of the people at heart despite how some decisions may look to be unpopular with the people.
“I have faith and full confidence in President Dr Masisi leadership. We shall overcome as party and nation the current challenges bedevilling nations. BDP will emerge stronger. President Masisi will always have my backing.”
Nkaigwa served as opposition legislator between 2014-2019 representing Botswana Movement for Democracy (BMD) under UDC banner. He joined BMD in 2011 at the height public servant strike whilst Gaborone City Deputy Mayor. He eventually rose to become the mayor same year, after BDP lost majority in the GCC.
Nkaigwa had been a member of Botswana National Front (BNF), having joined from Alliance for Progressives (AP) in 2019.
Botswana has received assistance worth over P100 million from Japanese government since 2019, making the latter of the largest donors to Botswana in recent years.
The assistance include relatively large-scale grant aid programmes such as the COVID-19 programme (to provide medical equipment; P34 million), the digital terrestrial television programme (to distribute receivers to the underprivileged, P17 million), the agriculture promotion programme (to provide agricultural machinery and equipment, P53million).
“As 2020 was a particularly difficult year, where COVID-19 hit Botswana’s economy and society hard, Japan felt the need to assist Botswana as our friend,” said Japan’s new Ambassador to Botswana, Hoshiyama Takashi.
“It is for this reason that grants of over P100 million were awarded to Botswana for the above mentioned projects.”
Japan is now the world’s fourth highest ranking donor country in terms of Official Development Assistance (ODA).
From 1991 to 2000, Japan continued as the top donor country in the world and contributed to Asia’s miracle economic development.
From 1993 onwards, the TICAD process commenced through Japan’s initiative as stated earlier. Japan’s main contribution has been in the form of Yen Loans, which are at a concessional rate, to suit large scale infrastructure construction.
“In Botswana, only a few projects have been implemented using the Yen Loan such as the Morupule “A” Power Station Rehabilitation and Pollution Abatement in 1986, the Railway Rolling Stock Increase Project in 1987, the Trans-Kalahari Road Construction Project in 1991, the North-South Carrier Water Project in 1995 and the Kazungula Bridge Construction Project in 2012,” said Ambassador Hoshiyama.
“In terms of grant aid and technical assistance, Japan has various aid schemes including development survey and master planning, expert dispatch to recipient countries, expert training in Japan, scholarships, small scale grass-roots program, culture-related assistance, aid through international organizations and so on.”
In 1993, Japan launched Tokyo International Conference on African Development (TICAD) to promote Africa’s development, peace and security, through the strengthening of relations in multilateral cooperation and partnership.
TICAD discuss development issues across Africa and, at the same time, present “aid menus” to African countries provided by Japan and the main aid-related international organizations, United Nations (UN), United Nations Development Programme (UNDP) and the World Bank.
“As TICAD provides vision and guidance, it is up to each African country to take ownership and to implement her own development following TICAD polices and make use of the programmes shown in the aid menus,” Ambassordor Hoshiyama noted.
“This would include using ODA loans for quality infrastructure, suited to the country’s own nation-building needs. It is my fervent hope that Botswana will take full advantage of the TICAD process.”
Since then, seven conferences where held, the latest, TICAD 7 being in 2019 at Yokohama. TICAD 7’s agenda on African development focused on three pillars, among them the first pillar being “Accelerating economic transformation and improving business environment through innovation and private sector engagement”.
“Yes, private investment is very important, while public investment through ODA (Official Development Assistance) still plays an indispensable role in development,” the Japanese Ambassador said.
“For further economic development in Africa, Japan recognizes that strengthening regional connectivity and integration through investment in quality infrastructure is key.”
Japan has emphasized the following; effective implementation of economic corridors such as the East Africa Northern Corridor, Nacala Corridor and West Africa Growth Ring; Quality infrastructure investment in line with the G20 Principles for Quality Infrastructure Investment should be promoted by co-financing or cooperation through the African Development Bank (AfDB) and Japan.
Japan also emphasized the establishment of mechanisms to encourage private investment and to improve the business environment.
According to the statistics issued by Japan’s Finance Ministry, Japan invested approximately 10 billion US dollars in Africa after TICAD 7 (2019) to year end 2020, but Japanese investment through third countries are not included in this figure.
“With the other points factored in, the figure isn’t established yet,” Ambassador Hoshiyama said.
The next conference, TICAD 8 will be held in Tunisia in 2022. This will be the second TICAD summit to be held on the African continent after TICAD 6 which was held in Nairobi, Kenya, in 2016.
According to Ambassador Hoshiyama, in preparation for TICAD 8, the TICAD ministerial meeting will be held in Tokyo this year. The agenda to be discussed during TICAD 8 has not yet been fully deliberated on amongst TICAD Co-organizers (Japan, UN, UNDP, the World Bank and AU).
“Though not officially concluded, given the world situation caused by COVID-19, I believe that TICAD 8 will highlight health and medical issues including the promotion of a Universal Health Coverage (UHC),” said Hoshiyama.
“As the African economy has seriously taken a knock by COVID-19, economic issues, including debt, could be an item for serious discussion.”
The promotion of business is expected to be one of the most important topics. Japan and its partners, together with the business sector, will work closely to help revitalize private investment in Africa.
“All in all, the follow-up of the various programs that were committed by the Co-Organizers during the Yokohama Plan of Actions 2019 will also be reviewed as an important item of the agenda,” Ambassador Hoshiyama said.
“I believe that this TICAD follow-up mechanism has secured transparency and accountability as well as effective implementation of agreed actions by all parties. The guiding principle of TICAD is African ownership and international partnership.”
Directorate on Intelligence Services (DIS) Director General, Brigadier Peter Magosi is said to be hell-bent and pushing President Mokgweetsi Masisi to reshuffle his cabinet as a matter of urgency since a number of his ministers are conflicted.
The request by Magosi comes at a time when time is ticking on his contract which is awaiting renewal from Masisi.
This publication learns that Magosi is unshaken by the development and continues to wield power despite uncertainty hovering around his contractual renewal.