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.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.