Boko, Pilane clash again over UDC constitution
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Two renowned Advocates in Botswana, the Umbrella for Democratic Change (UDC) Advocate President Duma Boko and Botswana Movement for Democracy (BMD) leader Advocate Sidney Pilane are geared for a nasty showdown on the interpretation of the constitution of the UDC.
UDC is a coalition consisting of the Botswana National Front (BNF), Botswana Peoples Party (BPP) and Botswana Congress Party (BCP) and BMD which is headed by Pilane. This week, the leadership of the UDC, comprising mainly of BNF and BCP executive members announced a decision to suspend from the coalition for 14 days pending final decision. The decision has certainly set in motion a legal battle regarding the rights and powers of the contracting partners and the party National Executive Committee (NEC).
While Pilane has been adamant that the UDC is not registered as a political party but just a conglomerate in accordance with its constitution Boko says otherwise – that it is a political party in its context. Pilane has stressed several times in the media and public that the “UDC is not a political party per se, but only an electoral arrangement.” Boko refuted Pilane this week at a press conference in Gaborone announcing the suspension of BMD that UDC is a political formation.
The UDC leader reminisced on the only judgement that justifies his position that was passed by the former Judge Peter Collins in the matter between BPP and Botswana Alliance Movement (BAM). He said Judge Collins made a finding in that case that BAM is not a political party but a coalition saying the reason is that, on the constitution and the way BAM was configured, to the extent that there was no individual membership, BAM only had provision for group membership.
“It could therefore not be a political party. That’s what he says. However the UDC does not fall in that boat because the UDC in its constitution has provision for individual membership,” Boko said. So, he added that on the criteria led by Judge Collins UDC is a political party and so if anybody wants to engage and debate on this matter anywhere, in the courts; both the formal and the courts of public opinion, its Cadit quaestio. In legal contexts, cadit quaestio is a latin used to indicate that an issue is no longer in question, often because a dispute (question) between two parties has either been settled, or dropped.
ON WHICH UDC CONSTITUTION REMAINS IN EFFECT
According to Boko, the constitution of the UDC was registered on the 23 August 2012 and it is that constitution that still applies until it is lawfully and properly amended and duly replaced. Pilane also believes that the current constitution is the one that was registered in 2012 which he adds that it recognises only the founding members in BNF, BMD and BPP and not the BCP.
ON WHETHER BCP A FULL MEMBER OF UDC
The BMD leader has also indicated that, as of now, BCP has not been formally admitted into the UDC, until a new constitution is submitted to the Register of Societies. Pilane and BPP leadership has presented one to the Registrar nullifying the one submitted by Boko and Saleshando recently. Pilane has stated several times that the BCP is not a member of the umbrella coalition as per the party constitution.
On his part Boko this week clarified that the said constitution of the UDC is that following the conclusions that took place after 2014 General elections the “BCP became a full member of UDC and that situation has not changed, it’s still remains extant.”
ON CONSTITUENCIES: FOR UDC OR INDIVIDUAL PARTIES?
Under the current arrangement of the umbrella, BNF was allocated 22 constituencies, BCP 17, BMD 14 with BPP having only 4. Pilane has emphasised that they have 14 constituencies and that nobody, not the UDC nor anyone else, is going to tell them how to deal with their constituencies, and nobody is going to vet their candidates because they have deliberated and agreed on that matter.
“UDC is not entitled to dictate to the constituent parties how and what they should do in respect of its own matters including constituencies. Let us be clear about this,” Pilane has told Boko previously. However this week Boko asserted that the constituencies belong to the UDC as a collective. Each political party that has been assigned a set of certain particular constituencies, he said has been given the responsibility on behalf of the collective and that the constitution of the collective, the one that they have, says all this parties are allowed ultimately ‘subject to regulation by the collective.’
Boko highlighted: “So it is not something that we plugged from the air but comes from the constitution of the UDC. Each party brings its candidates and they are subject to scrutiny and examination by the collective. BNF, BCP, BPP and BMD have always understood that at some point they will have to submit to an audit by the collective. UDC has a right to pronounce on candidates if they have evidence against them. Its quality assurance to make sure that UDC is represented by the best.”
BOKO FINALLY PRONOUNCES PILANE SUSPENSION
The UDC President has said they have received fierce feedback regarding the BMD leader Sidney Pilane, which is very negative and very uncomplimentary which has tend to affect the UDC leadership as a whole. He said that these things happen and when they respond, they do so because reality compels them to do so and not necessarily that anybody has done any wrong.
“And so when these issues were now reaching a fever peach, boiling on, we convened on the 15th of September to reflect as UDC leadership. And return we did, yesterday in which UDC NEC appreciating the seriousness of the issues and the urgency of dealing with them and also alive to the constitutional imperative that binds us to justice came to a final point where the UDC NEC took a decision to suspend the BMD.”
The BMD was as a result given the opportunity to respond to the issues within 14 days or not later that the 18th of October 2018. At that time the Gaborone Bonnington North lawmaker said they would have made their representations to the NEC and that is when any final decisions will be taken. Meanwhile Pilane has recently told Boko and Saleshando that they have no powers to suspend or expel them or BMD from the UDC.
“The UDC is not competent to decide who may represent the BMD in the UDC NEC, nor is it empowered to suspend or expel the BMD from the UDC,” he said then. The contentious leader explained that the relationship inter se of the parties which are members of the UDC as a coalition is a contractual one, and the agreed UDC constitution does not give any contracting party or parties’ authority to suspend or expel another contracting party.
“Even if the UDC had such power, which it does not, it would be able to do so only after due process, which has not been extended. Such a process is not worth undertaking because it would be stillborn,” the BMD leader observed. Neither the BMD nor I have received any communication from anybody concerning any intended or actual suspension or expulsion, he said adding that “if we should, it would not be worth the paper it is written on.”
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DCEC granted warrant to arrest Khama twins
The Directorate on Corruption and Economic Crime (DCEC) has been granted permission to apprehend the former Minister of Environment, Wildlife and Tourism, Tshekedi Khama, and his twin brother Anthony Khama.
Information gathered by this publication suggests that the DCEC is actively searching for the Khama brothers, this is in connection with events that transpired whilst Tshekedi was Minister of Environment. The duo is currently in exile in South Africa together with their elder brother, and former President Lt Gen Ian Khama.
Approximately two weeks ago, the corruption-busting agency discreetly filed for an arrest warrant that was approved by the Broadhurst Magistrate Court for the two to be taken into custody, according to a highly placed source within the government enclave.
DCEC is also said to have filed an affidavit signed by a high-ranking officer known to this publication. Reports indicate that after being presented with details of the case, the Broadhurst magistrate issued the agency an arrest warrant.
It is also believed that the agency has been conducting extensive investigations into the supposed suspects for quite some time. Furthermore, Weekend Post has it on good word that the DCEC has been looking for methods to summon the two for questioning but has been unsuccessful.
According to unconfirmed reports, DCEC met with attorney Victor Ramalepa, who refused to accept the summons, saying that he is not their attorney. Furthermore, it is believed that DCEC has enlisted the assistance of the Botswana Police Service (BPS) in flagging the suspects’ names in the International Criminal Police Organisation INTERPOL.
Responding to WeekendPost enquiries, DCEC spokesperson Lentswe Motshoganetsi said, “I am not in good position to confirm or deny the allegation,” adding that such allegations may fall within the operational purview of the DCEC.
When contacted for comment, Ramalepa briefly stated that he is unaware of the purported arrest warrant. “I know nothing about the warrant and I haven’t been served with anything,” he said.
Meanwhile, former president Lt Gen Ian Khama recently issued a statement stating that DIS is intensifying the harassment and intimidation of him, family, friends and office employees.
“It is reprehensible for state officials and agencies to abuse government resources to terrorise their own citizens for personal gain,” said the former president in a statement.
He also stated that his brother TK’s staff and security were ordered to falsely implicate him. “Their desperate tactics will never work, it only serves to motivate me more to pursue regime change and free Botswana from tyranny,” he said
This comes after the corruption busting agency wants to interview the alleged suspects as they are still hiding in South Africa since last year.
Despite the hostility between government and Khama family going unabated, last month, Masisi extended an olive branch to Khama in political rally, indicating that he hopes the two of them settle their differences, of which the former responded by welcoming the gesture.
Khama further said his brother, Tshekedi, will facilitate the reconciliation of his behalf. Many have indicated that Masisi did not say what he said in good faith, and was only scoring political brownies since he was in Khama’s territory in Shoshong.
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DCEC’s Tshepo Pilane still has his mojo
Tshepo Pilane silenced his critics after being named the head of the Directorate on Corruption and Economic Crime (DCEC) in May of last year and served his opponents humble pie. Many believed he would only last for a month, but almost a year later, he is still standing.
Pilane, a trained soldier whose appointment surprised both the general public and some officers within the DCEC walls, has never glanced back in his duty to steer the DCEC ship forward.
It is alleged that immediately after his appointment the man embarked on a nation-wide trip touring the DCEC offices across the country in order to confirm and reaffirm the DCEC’s mandate. Sources from inside the DCEC claim that Pilane won the hearts of many DCEC employees due to his humility and plain message; “people at the top of the DCEC will come and go but the mandate of the DCEC remains relevant and unchanged.”
Pilane was appointed the Acting DCEC Director General at a time when the organisation was undergoing turbulence through court proceedings in which the suspended Director General Tymon Katlholo had interdicted the Directorate of Intelligence and Security (DIS) from accessing the DCEC premises. At the time, the DIS had raided the DCEC offices in the absence of Katlholo claiming to be looking for high profile corruption cases allegedly held by Katlholo.
At the time Pilane was Head of the DCEC Intelligence Division holding the position of Senior Assistant Director General reporting directly to the Deputy Director General Operations Ms Priscilla Israel. Contrary to his detractors, Pilane who is a reserved and humble person by nature won the support and backing of many DCEC officers due to his unassuming nature.
In a recent questionnaire sent to the DCEC regarding Pilane’s term in office, the DCEC was resolute on its commitment towards the fight against corruption. When quizzed on allegations of rife corruption since he took over, Pilane through his Public Relations (PR) office stated that the corruption landscape in Botswana remains unchanged as the DCEC continues to receive reports on allegations of corruption with sectors such as procurement (tenders and supplies), Transport (licensing and certificates), and land (dubious allocation and collusion) still leading issues reported. This trend has been consistence in the DCEC database for more than 10 years.
When further quizzed on accusations that suggest that due to the infighting at the agency, particularly at the top management, Investigations of cases has dropped significantly the DCEC claimed ignorance to the matter, stating that they are not aware of any “infights” at the DCEC “at the top management”, further stating that, investigations of cases has increased significantly, contrary to the allegations raised. “The DCEC is currently seeking new ways of expediting the investigations in order to fast track its enforcement role,” said the DCEC Head of Public Relations Lentswe Motshoganetsi. He further stated that the DCEC is in pursuit of high profile cases involving money and assets valued over P900 million. Three companies are involved in the scandal and two cases have already been committed to court while on one, investigations are about to be completed.
When WeekendPost inquired about Pilane’s roadmap, the DCEC stated that in the past, anti-corruption interventions were reactive, particularly in dealing with national projects that involve large sums of money. It was further started that in most instances investigating such matters takes a long time and in most instances, the money looted form Government in never recovered. As a result, the DCEC has taken a deliberate stance to attach its officers from the Corruption Prevention Division to be part of the implementation of these projects before, during, and after implementation.
The DCEC cited the Economic Stimulus Programme which, although meant to grow the economy and uplift Batswana from poverty, yielded incidents of corruption and poor workmanship. To date, the DCEC is still grappling with cases as some projects were not done, or were completed with defects beyond repair. Currently the DCEC is involved at the Ministry of Education conducting project risk management in the Multiple Path Ways Program at Moeng College and Maun Senior School. This intervention will spread to other sectors of the economy as part of the DCEC’s corruption prevention strategy.
Of recent, the DCEC has been in the media for all the wrong reasons following leakage of high profile cases and allegations claiming that the executive management is at war with each other more particularly with some within the agency harbouring ambitions to dethrone Pilane from the Directorship.
Although the infighting was denied by Pilane’s Office, he acknowledged that leakage of information is a problem across Government and stated that it is a pain at the DCEC. He however stated that Staff has been cautioned against leakage of investigation information and that they have roped in the Botswana Police to assist in investigating incidents of leakage. He further stated that they have increased continuous vetting and lifestyle audits for DCEC employees in order to enforce discipline.
Pilane’s term comes to an end in May 2023 after serving the DCEC for a year on acting basis. It will be in the public interest to see who will be given the baton to continue the anti-corruption journey if Pilane’s contract is not renewed. The DCEC has seen arrival and departure of Director Generals having alternated the top seat five times in less than seven years.
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Botswana firms ICC support amid arrest warrant for Russian President
The Parliament is set to discuss proposed amendments to the laws related to the International Court Court (ICC). This development coincides with reports that the ICC has issued an arrest warrant for Russian President Vladimir Putin for his alleged role in the conflict in Ukraine.
It is not clear if this is a coincidence. For the fourth time, last year Botswana voted against Russia during the UN General Assembly’s condemnation of Russia’s attack on Ukraine.
The country’s continued support for the ICC is expected to irk other African countries that are still questioning the credibility of the ICC and those have also sworn alligence to Russia.
It has been reported that the Minister of Justice, Ronald Shamukuni, is expected to table the Bill regarding the amendments to the laws concerning the ICC in the Parliament soon.
The Bill seeks to criminalize various international crimes, including genocide, war crimes, and aggression. It also proposes to repeal and replace the 2017 Rome Statute of the ICC with amendments.
The latest Government Gazette indicated that the 2017 Act has some legal and constitutional implications. The proposed amendments seek to address these issues.Therefore, the Bill seeks to replace the 2017 Act with a new statute that will retain some of the provisions that do not conflict with Botswana’s Constitution.
The Bill aims to ensure that the obligations of Botswana as a State Party to the Rome Statute of the ICC do not conflict with the country’s Constitution.
The proposed Act will include addition of the crime of aggression which was not there in the 2017 Act. The proposed Act will remove clauses that conflict with Botswana’s Constitution such as article 17 of the Rome Statute of the ICC which provides that official capacity as Head of State shall in no case exempt a person from criminal responsibility under the ICC Statute.
The import of this provision (which the new law seeks to repeal) is that Botswana Courts will be constrained by section 41 of the Constitution to try a sitting President but the International Criminal Court will not be so constrained.
The proposed Act will also result in the amendment to the extradition Act which will provide for instances where Botswana is unable to extradite, for the Director of Public Prosecution (DPP) to instead prosecute on behalf of the foreign country (ICC) where it is determined that there is sufficient evidence to prosecute and sharing of suspected proceeds of crime and confiscated property with other countries.
“In this regard, the amendment to the Mutual Assistant in Criminal Matters Act empowers the DPP to enter into agreements for the reciprocal sharing of with a competent authority in a foreign country,” reads the note in part.
The Bill also includes a clause dealing with conspiracy which provides that a person who conspires in Botswana to commit an offence, in or outside the territory of Botswana, or who conspires outside Botswana to commit an offence in Botswana commits an offence and is liable to the same penalty as the penalty for the actual offence.
Other provisions of the Bill include those relating to superior orders not being a defence as well as the responsibilities of commanders and other supervisors. Furthermore, the Bill deals with issues such as jurisdiction which allows for proceedings to be instituted against a person under certain circumstances, where an act of constituting an offence under the Bill is committed by any person outside the territory of Botswana.
The Bill also provides that the limitations on certain criminal offences will not be applicable to the offences under the Bill. This means that the Prescriptions Act and other statutory limitations will not be applicable to the offences under the Bill. Other provisions of the Bill include the establishment of regulations and the powers of the Minister to make amendments to laws.
The latest developments involving the ICC have raised concerns about Botswana’s continued support for the court. Some of the countries that are critical of the court include Uganda and Kenya. They believe that the court only targets African countries for its alleged involvement in war crimes. In 2016, South Africa decided to withdraw from the ICC. South Africa was the second African nation to withdraw from the court after Burundi.
The decision by South Africa followed a controversy in 2015 when Sudan’s President Omar Al-Bashir was invited to the country despite an ICC warrant for his arrest. Yoweri Museveni, the Ugandan President, at that time commended South Africa for its decision to withdraw from the court.