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Basarwa oppose Nkate’s Ngamiland business

Three years after government awarded it the tender for management of Tsaro Lodge, Kgori Safaris, a company jointly owned by Botswana Democratic Party politician Jacob Nkate has failed to get an operating license from the Ministry of Environment and Natural Resources, Conservation and Tourism.

In an interview Nkate said: “yes I can confirm that three years down the line we have still not been granted a license for Tsaro Lodge.  We are still negotiating with the ministry. I will not comment more on the issue for fear of prejudicing our negotiations with the ministry.” Minister Environment and Natural Resources, Conservation and Tourism, Tshekedi Khama recently told Weekend Post that there has been a delay in the issuance of a license for Tsaro as the lodge’s previous owners, Khwai Development Trust have a case before the courts relating to the lodge. “KDT has gone to court. But I want to make it clear that one of the directors of Kgori is a Motswana,” he said at the time.

Basarwa community oppose Kgori Safaris

Under the Community Based Natural Resources Programme, KDT was granted exclusive rights holder of Wildlife Management Areas of NG 18 and 19 for the purpose of development of tourist activities and management of natural resources for the general benefit of and improvement of the Basarwa community of Khwai village. Under this programme KDT was issued with a lease agreement by Tawana Land Board of Tsaro lodge, a lodge located on a five hectares piece of land in NG 19. However in 2014, NG 18 and 19 were transferred to the controversial tourism land bank that communities say is illegal.

The ownership of the lodge is embroiled in controversy with KDT claiming its award to Kgori was fraudulent.  The spokesperson of the Basarwa community, Baefesia Sango, told WeekendPost in an interview that their belief as the community is that Kgori did not meet requirements to be awarded the lodge.  He said the assessment process conducted by Botswana Tourism Organisation that chose Kgori among the companies that bid for it was shrouded in secrecy.

In the award letter dated 15 October 2014, then Permanent Secretary in the then Ministry of Environment, Wildlife and Tourism, Neil Fitt awarded Kgori Safaris the tender to operate the lodge. The letter read in part that “we are pleased to inform you that your bid for Tourism Utilization and Management of Tsaro Lodge (Tender Number: 1.09/10314/NG 19 (2) has been successful”. Sango and the community’s argument is that the PS did not have powers to award the tender.

The award was subject to the following: that Kgori provide proof of consent for funds from both directors of the company, as well as to provide certified supporting documents from financial institutions providing funding for the project. Further, Kgori was asked to provide a revised Social Corporate Responsibility (CSR) plan with concrete timelines and deliverables for the duration of the lease to be awarded. Fitt lastly asked Kgori to provide details on staff ablutions as this was not captured in the company proposal. In 2016, Kgori Managing Director Jim Van Ransburg told this journalist that Kgori was looking to invest handsomely on employment creation and education opportunities for the about 600 Khwai residents.

However, Sango said in 2007, “Government refused to give KDT a license to operate the lodge saying they used permanent building materials to build it contrary to building requirements in the Okavango Delta that say only temporary materials should be used.” He further said government advised that the trust must put the lodge up for tender so that the company that wins it will bear the costs for demolishing it and building a new lodge. “But in 2014, Kgori was allowed to operate the lodge under its current brick status while we were denied. Why?” Sango asked rhetorically.

He said because they had heeded government’s advice to put the lodge up for a tendering process  in 2014, KDT approached BTO in 2014 to help them look for a partner to operate the lodge.  Sango said BTO then prepared terms of reference for the tender which he said stipulated that KDT was the one that will choose the company to award the lodge tender to.  “BTO’s mandate was to shortlist three companies and recommend those companies to us to choose from.”

Three months after the process commenced they learnt that Kgori had been awarded the tender.    “We just heard on the streets that it had been awarded without our consent,” Sango said, adding that the trust has since incurred lots of costs on the lodge saying in 2005, KDT received P 2, 5 Million funding from GEF to maintain the lodge. Sango revealed that the terms of reference clearly stipulated that the successful bidder will be required to enter in to a formal lease agreement with the KDT under facilitation by BTO as per the draft lease agreement forming part of the tender documents.

Sango said when they queried why the lodge was given to Kgori without their consent they were told that NG 19, the land where Tsaro is located, has been transferred to the tourism land bank and therefore as the community they ceased to have powers over the award of the tourism concessions. They were further told that under the land bank, the tenderer chosen, Kgori Safaris, will enter in to agreement with government through Botswana Tourism not the trust as it used to be the case.

According to Sango, however in January 17, 2017, KDT’s lease for Tsaro lodge expired and when they applied for a new lease from Tawana Land Board the land board turned them down. He said through their lawyers, Dingake Law partners they are challenging Tawana Land Board’s refusal to grant them the lease extension.

Sango said as KDT they are calling on government to stop BTO from meddling in affairs of community trusts and concentrate on marketing Botswana. He further posited that government must scrap off the tourism land bank saying its illegal as only the land board has powers over the tribal land.

Ngamiland Communities want the land bank scrapped off

Meanwhile the Ngamiland Council of Non-Governmental Organisations (NCONGO) has called on government to get rid of the tourism land bank and revert to the former system of tourism concessions allocation. Advocating against the land bank, NCONGO tourism says lands should be issued to the   respective Trust and not government through the BTO.

A statement said NCONGO watched as the Government, through its Ministry of Environment, Natural Resources and Conservation and Tourism, grabbed land from the communities in Ngamiland District with the sole intention of leasing such community concessions to investors. It said through the Land Bank policy, which has never been availed to Ngamiland Community Trusts, tribal leadership, and the community at large, the concessions in Tribal Land are and have been transferred to the Ministry of Environment, Natural Resources Conservation and Tourism for purposes of ease of doing business for the tourism sector.

NCONGO said it is of a position that leasing concessions to community trusts is the best model because the local communities are guaranteed 90% of employment in the companies that enter into partnership with the Trust, therefore reducing poaching and taking of other resources. It says the second benefit is the skills brought by investors who train local communities in various trades.

The statement stated that NCONGO is in support of investors coming to Botswana, however where the land already has Leasehold, Private Public Partnership should be employed and or the investors should be encouraged to enter into Joint Venture Partnership with the local business people or the community trust.

The statement followed the saga relating to the firing of four Tawana land board members by former Minister of Land Management, Water and Sanitation Services, Prince Maele.  The four were allegedly fired for refusing to approve a land award to British billionaire, Sir Richard Branson. In the statement NCONGO appreciated ‘the bravery of the four Tawana Land Board- Board Members who were dismissed from work in regard to their stance pertaining issuance of land to one of the rich investors without following proper channels’.

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BONELA speaks on same-sex decriminalization case

18th October 2021
BONELA

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.”

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Masisi warns Gov’t officials

18th October 2021
President Masisi

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).

 

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Guma’s battle for millions of Pula give Court headache

18th October 2021
Guma Moyo

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.

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