Mascom Wireless Botswana has lost with costs a case in which it had sought a review of the lawfulness of a directive promulgated by the Botswana Communications Regulatory Authority (BOCRA), to regulate the Mobile Termination Rates (MTRs) in Botswana. Mascom wireless says the rates as set by BOCRA are very low and wants them increased.
Many in the industry see Mascom’s bitter fight as an effort to protect the revenue it was making from Mobile Termination Rates (MTRs) since it has the largest subscriber based when compared to other operators. The directive sets out charges that mobile network operators charge each other for network interconnection. Botswana telecommunications Corporation Limited (BTCL) and Orange Botswana were also cited as second and third respondent but they chose to be spectators in this regulatory dispute.
Mascom wanted the court to determine if in issuing regulatory directive No1 of 2017 on the 24th March 2017, determining the charges that the mobile network operators have to charge each other for network interconnections, BOCRA had acted in accordance with its statutory obligations to take regulatory decisions in the open, transparent, accountable, proportionate and objective manner in terms of the Communications Regulatory Authority Act.
The mobile operator was also skeptical as to whether BOCRA acted duly in terms of its common law duty, arising under public administrative law, to act fairly and in accordance with the legitimate expectations it had created with the operators that it would, regarding the charges in case, complete the consultation process in which it was engaged with the operators. In essence Mascom Wireless is of the view that the directive that was issued by BOCRA is illegal, irrational, improper and wanted it reviewed and set aside.
On 24th March 2017, BOCRA issued a directive that set Mobile Termination Rules that were to apply on 1st June 2017 and further directed operators – Mascom, BTC and Orange – to review their prices to remove the Off Net Mobile voice calls by 1st June 2018. The Judge, Leburu was informed that Mobile Termination Rates (MTR) are wholesale rates per minute that the operators charge each other for voice calls that terminate in their respective networks, but that originate from one of the other operators’ networks.
Explained further, if a mobile telephone customer of Mascom makes a voice call to a customer of Orange, Mascom has to pay Orange for enabling the Mascom customer’s call to be connected to the Orange customer’s mobile telephone device via Orange network. The stated purpose of the said directive was to implement the final recommendations of the 2016 Cost Model and Pricing Framework Study. The said Study was conducted by a United Kingdom firm of consultants named Interconnect Communications Ltd. There was a consultation process following the final report which was preceded by an interim report in March 2016 and the draft final report was delivered in September 2016.
“Before the draft reports and final draft report were submitted, consultation with the operators, spanning 14 months was done and presentations were made to the operators during information sessions about the project or study,” the court was told. It was further revealed that following upon public notice to all relevant stakeholders about the study, BOCRA initiated a one-on-one project meetings with each of the operators in January 2016. At this meetings a presentation was made to each of the operators, including Mascom.
It was shared in court that data from Mascom and other operators was used as inputs to populate the first Draft Cost Model. In March 2016, BOCRA issued the interim Report on cost modeling and pricing framework. Evidence presented before the court indicates that on March 22nd 2016, a stakeholder consultative workshop was held whereat all stakeholders were granted an opportunity to make presentations, responses and input on the issues described in the interim report. “Mascom elected not to make oral presentations at the workshop. Instead, it chose to subsequently submit written comments on the interim report on 11th April 2016.
“Mascom acknowledged as a starting point that the approach in the interim report was “well balanced and sensible approach with respect to the considerations made on the key issues that underpin the development of costs models and a pricing framework suitable for Botswana.” It further made its presentations with respect to potential remedies to the pricing issues on off-net compared to “on-net” voice tariffs. BOCRA then made a consolidated report based on the submissions made by all including Mascom.
After a collective meeting with Mascom, Orange and BTCL whereat a presentation on the project status was given to the operators, a draft final report which set the preliminary results of the study was issued by BOCRA on September 2016. All stakeholders including Mascom were once again given an opportunity to make presentations and Mascom obliged through its written representations on the 24th October 2016.
Mascom at this stage made complaints that it had not been furnished with full access to the cost model, for purposes of verifying and validating the costs results; Mascom also complained that the level of the MTRs set out in the draft final report were too low. BOCRA however proceeded and came up with a draft final report and shared it with Mascom and other stakeholders on 29th November 2016. On 17 January 2017 BOCRA held a meeting with Mascom to afford it an opportunity to raise its concerns on the Draft Final report.
Mascom further raised its concerns on the study and arising from such concerns three teleconferences between Mascom and consultants were conducted and one was on the 31st January 2017. BOCRA Board on 6th March 2017 adopted the final report but modified the recommendation of a three year glide path and adopted a two year glide path. “It was the reduction from the three years to the two years that formed Mascom’s casus belli, hence the present review application.”
According to Mascom, at all relevant times during the consultation period, the consultants and BOCRA executive management team, conveyed to the operators that a reduction in the MTRs will be implemented over a three year glide path period. Mascom contended that the three year glide path period was effected by the BOCRA Board without prior notice or consultation and further that it legitimately expected that a three year glide path would be implemented and that if BOCRA was minded to vary same, it should have give Mascom a further hearing. Mascom argued that the consultation process was incomplete.
“Although attacking the entire process leading to the issuance of the said directive, is not seeking to set aside the entire directive. Mascom’s sharp pointed arsenal is directed at paragraphs 11.2 and 11.3 of the said directive dealing with MTRs,” observed Judge Leburu. Currently Mobile Termination Rates excluding VAT stand at 0.295 and by 1st June 2017 they were at 0.220 and on 1st June 2018 MTRs will be 0.130. Mascom wants these provisions set aside on grounds of irrationality, unlawfulness and unfairness. “Interestingly, other operators Orange Botswana and BTCL have adopted a passive role and have filed notices to abide by the court’s decision,” Judge Leburu noted.
JUDGE QUASHES MASCOM
Judge Leburu found that the regulator in BOCRA invited relevant stakeholders to participate in the study at formative stages before the directive was promulgated. He also established that several documents that information was shared by the regulator, its consultants and the operators. He further pointed out that workshops were held in addition to telephone and teleconference ng. Further drafts interim reports were prepared, shared and revised up until version 13 (Draft Final report). The Judge noted that Mascom fully participated in the consultation process, right from inception of the study, up to including the preparation of the Draft Final Report.
“The process of consultation was thus open and transparent.” He dismissed Mascom’s assertion that the consultation process was incomplete and inchoate, “in my view, it is bereft of substance,” he said. The Judge also noted that it is in the public interest that a consultation process must at some point come to an end so that certainty and predictability can prevail. He said the directive was issued for public good, particularly the reduction of MTRs rates as well as Off-net and On-net tariffs.
“The decision by BOCRA, within the context of its decision making powers in my view, demonstrates that a reasonable and rational choice and decision was made by BOCRA.” Mascom’s application was dismissed with costs, inclusive of costs related to engagement of Senior Counsel.
The government of Botswana has reportedly approved the dream of hosting African Cup of Nations in 2027 with Namibia as co-host, following a proposal to cabinet by Minister of Youth Empowerment, Sports and Culture Development, Tumiso Rakgare.
WeekendSport learns that the organizing committee dreaming to host the tournament is preparing to hand their hefty book to Confederation of African Football (CAF) when bidding stage comes into open. Botswana Football Association (BFA) has, to this date, managed to win the confidence of the government, and all thoughts around the African football prestigious tournament are given serious attention with acceleration of construction of 10 mini stadia across the country, sources have said.
Furthermore, reports in Namibia state that the Botswana government has approached them with a proposal to co -host the 2027 edition of African tournament. “I can confirm that the minister of sport in Botswana has written to our minister but these are still early days and no decision has been made yet,” Audrin Mathe, an executive director in the Ministry of Sport was quoted by Namibia Sun this week. Meanwhile, Rakgare has said: “It is still an internal issues but yes, we are interested in hosting with Namibia.”
All the while, BFA president who also sits in CAF national executive committee is expected to embody a more emotive promise about the ability of African Cup in Botswana and how it can benefit the citizenry and by extension, the Southern region. With Zimbabwe having come out clean about their intentions to bid for 2034 World Cup, there has been a growing feeling that Botswana should try her luck, and therefore Botswana delegation will be hopeful to walk a fine line.
Although, the commercial potential of a Botswana AFCON Cup is a compelling factor in their favour, following the relative uncertainty of many African countries ( due to political instability, extent of corona virus ) and state of insecurity, BFA is minded not make that their thrust of the case. Hence the concentration on providing a home from home for all teams among Botswana’s diverse population and the opportunity to use the proceeds to advance legacy projects around Africa. The feeling on the ground is that the move might be bold, and some association influential players believe that it will be a matter of upgrading Maun stadium, Masunga and Serowe stadium.
An idea is also harbored that another stadium will be built in around Gaborone to boost the existing National Stadium with the Lobatse and Francistown stadia also expected to play pivotal role. All the while, a more than P20 million operational budget is said to be needed to travel the African countries in convincing them that Botswana is more suitable to host with its security and economy very much stable.
Botswana passes the mark when it comes to transportation, accommodation and hotel facilities. The fact that CAF normally want a country that has hosted youth tournaments before enables Botswana to score points in that it has hosted before. The only problem that might mark Botswana down is road infrastructure. BFA will consider roping in an experienced sport person and the high profile of former players like Diphetogo Selolwane is anticipated to appear for the thoughts building around the bid, and his name will be seen as watershed moment.
The southern region, however, might be dealt a devastating blow following the catastrophe that hit Angola when they hosted the 2010 edition. The Togo team was shot by rebels and panic erupted. However, the field is open and the ever shifting sands of CAF internal politics make the race hard to call and feed fears of horse trading and backroom deals.
Public Servants should brace themselves for some changes as the government is in an overdrive mode to overhaul the public sector. The government has also set the tone for the looming changes as it has added the public sector to its looming list of major and sweeping reforms.
This is contained in a savingram from the Permanent Secretary to the President (PSP) Emmah Peloetletse’s office showing how the government intends to “take stock” of all reforms in the public sector through the establishment of an inventory. Peloetletse’s savingram addressed to various ministries and the Directorate of Public Service Management (DPSM) reveals that the government is working around the clock to implement some changes in the Public Service.
The savingram reminded Permanent Secretaries of various ministries and DPSM that the public sector reforms unit (PSRU) at the Office of the President is mandated with Coordinating Reforms across the Public Service. “This essentially entails providing the strategic guidance and facilitation in the implementation of reforms across the Public Service. In this endeavour the Unit has in the past with Technical Assistance from European Union developed a template for documenting Reforms in the Public Service and documented ten (10) major reforms across the Public Service,” reads the savingram in part. It added that “The Unit has lately rolled out the Change Management Framework in an effort to facilitate effective and efficient management of change in the Public Service.”
According to the savingram, it has been noted that for a variety of reasons the use of the template for documenting reforms has not been universally used across the Botswana Public Service. It further states that to facilitate the documentation of the reforms it is essential that an inventory of the various reforms across the Public Service (Central Government, Local Government and State Owned Entities) is established.
“By this correspondent we are seeking your assistance in populating the attached template to provide basic information on the various reforms. The PSRU will, through the various Coordination of focal Persons facilitate the full documentation of the reforms once the inventory is established,” the savingram further stated. The copy of the template among others calls on the focal persons to fill out them form under several headings; they include title of reform, start date, reform objectives, reform components, reform components, progress status.
The savingram echoes President Mokgweetsi Masisi’s announcement last year during his state of the nation address that as a nation Botswana has set itself a lofty goal of becoming a high income country by 2036 and has come up with a list of reforms among them digitisation of government infrastructure. He said the path to achieving this goal dictates that, Botswana takes deliberate steps that will transform its institutions; the way Batswana think and the way they act.
“It is with this in mind, that I presented a Reset Agenda in May 2021, with the following priorities: Save Botswana‘s population from COVID-19, by implementing a series of life saving measures that include a successful and timely vaccination programme, Adherence to COVID-19 health protocols remains key and align Botswana Government’s machinery to the Presidential Agenda, to ensure that the national transformation agenda will be embodied in the public service of the day,” said Masisi. He added that, “this will come with significant Government reforms in all public institutions. We need greater agility and responsiveness like never before in the delivery of public services.”
The Presidential COVID-19 Task Force reportedly meddled in the awarding of tenders for COVID-19, a new Public Accounts Committee (PAC) report has revealed.
The Committee expressed concern that it has noted that there are two centres for covid procurement being the Ministry of Health and the Covid Task team in the Office of the President. The report says the Committee questioned the Accounting Officer on why the COVID 19 task team is usurping the powers of the Ministry of Health by engaging in covid procurement when the Ministry of Health is the one which has the experience and mandate of dealing with the pandemic. The report says clarification was also sought on why direct appointment is the preferred method for covid procurement.
“In her response the Accounting Officer stated that the task team was mainly engaged in the procuring of quarantine facilities and was assisting the Ministry of Health due to the heavy workload brought about by the COVID 19 pandemic,” the report says. The report says the Accounting Officer further stated that direct procurement was used because COVID 19 was treated as an emergency and that procurement was mainly from companies that have been traditionally used by the Ministry of Health.
“This however, is not the case as there has been report of new companies being awarded COVID -19 contracts. The use of direct procurement method should only be used in exceptional cases as it’s a non-competitive method which increases the risk of inflated pricing and close relations with particular suppliers to the detriment of others,” the report says.
It says since most covid procurement fell under emergency, there is need for openness and transparency regarding the procurement. The PAC recommended that in order to ensure transparency and accountability all COVID 19 related procurement should be periodically published in the PPADB website giving full details of the companies receiving procurement contracts and the beneficial owners of the companies.
It says with the passage of time the impact of covid is no longer unexpected so direct awards should gradually be abandoned as the medium and long-term needs of the pandemic can now be predicted. “Judgement should be used even during direct awards to ensure that prices are not higher than the market prices,” the report says.
In a related matter, the report says the Central Medical Stores (CMS) was unable to cater for the required quantities of medical supplies with order fulfilments of about 35% resulting in shortages and insufficient drugs to Athlone Hospital and the surrounding clinics. “In his submission the Accounting Officer had indicated that CMS was unable to supply the exact quantities required by the hospital and surrounding clinics due to the fact that supplies from CMS have to be rationed in order to cover other facilities around the country,” says the report.
The committee expressed concern about the inadequate supply of drugs to government facilities which puts the lives of patients at risk due to non- availability of essential supplies. It recommended that the Ministry identifies and prioritise measures that need to be taken to ensure that there is adequate supply of essential medicines which are needed in the public health system.
Meanwhile the report says the Ministry of Health and Wellness coordinates the operations and functions of some institutions which receive government subventions and secondment of staff from the government. These institutions include 10 NGO’s, two mission Hospitals, three mission clinics and two schools of Nursing.
It says in its endeavour to enhance efficiency and effectiveness of government support to NGOs the Ministry of Finance and Economic Development developed some Policy Guidelines for Financial Support to Non- Governmental Organisations. According to the PAC report, the guidelines were meant to ensure that there is consistency, accountability and transparency in administering public funding to NGOs. However, the Ministry of Health did not comply with the very important guidelines.
“The main areas of non-compliance were the following: (i) There was no Evaluation Committee to vet proposals from NGOs, in some instances NGOs had formed part of the evaluation forum when their requests were being considered,” the report says. It says there was continued funding of NGOs even when they failed to submit narrative and financial progress reports; and (iv) Continued funding of NGOs that failed to submit audited financial statements and management letters as required. The Committee expressed concern at the lapses in the administration of grants by the Ministry despite the large sums of public money awarded to these NGOs.