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.
For so many years, Botswana has been trying to be a self-sufficient country that is able to provide its citizens with locally produced food products. Through appropriate collaborations with parastatals such as CEDA, ISPAAD and LEA, government introduced initiatives such as the Horticulture Impact Accelerator Subsidy-IAS and other funding facilities to facilitate horticultural farmers to increase production levels.
Now that COVID-19 took over and disrupted the food value chain across all economies, Botswana government introduced these initiatives to reduce the import bill by enhancing local market and relieve horticultural farmers from loses or impacts associated with the pandemic.
In more concerted efforts to curb these food crises in the country, government extended the ploughing period for the Southern part of Botswana. The extension was due to the late start of rains in the Southern part of the country.
Last week the Ministry of Agriculture extended the ploughing period for the Northern part of the country, mainly because of rains recently experienced in the country. With these decisions taken urgently, government optimizes food security and reliance on local food production.
When pigs fly, Botswana will be able to produce food to feed its people. This is evident by the numbers released by Statistics Botswana on imports recorded in November 2020, on their International Merchandise Trade Statistics for the month under review.
The numbers say Botswana continues to import most of its food from neighbouring South Africa. Not only that, Batswana relies on South Africa to have something to smoke, to drink and even use as machinery.
According to data from Statistics Botswana, the country’s total imports amounted to P6.881 Million. Diamonds contributed to the total imports at 33%, which is equivalent to P2.3 Million. This was followed by food, beverages and tobacco, machinery and electrical equipment which stood at P912 Million and P790 Million respectively.
Most of these commodities were imported from The Southern African Customs Union (SACU). The Union supplied Botswana with imports valued at over P4.8 Million of Botswana’s imports for the month under review (November 2020). The top most imported commodity group from SACU region was food, beverages and tobacco, with a contribution of P864 Million, which is likely to be around 18.1% of the total imports from the region.
Diamonds and fuel, according to these statistics, contributed 16.0%, or P766 Million and 13.5% or P645 Million respectively. Botswana also showed a strong and desperate reliance on neighbouring South Africa for important commodities. Even though the borders between the two countries in order to curb the spread of the COVID-19 virus, government took a decision to open border gates for essential services which included the transportation of commodities such as food.
Imports from South Africa recorded in November 2020 stood at P4.615 Million, which accounted for 67.1% of total imports during the month under review. Still from that country, Botswana bought food, beverages and tobacco worth P844 Million (18.3%), diamonds, machinery and fuel worth P758 Million, P601 Million and P562 Million respectively.
Botswana also imported chemicals and rubber products that made a contribution of 11.7% (P542.2 Million) to total imports from South Africa during the month under review, (November 2020).
The European Union also came to Botswana’s rescue in the previous year. Botswana received imports worth P698.3 Million from the EU, accounting for 10.1% of the total imports during the same month. The major group commodity imported from the EU was diamonds, accounting for 86.9% (P606.6 Million), of imports from the Union. Belgium was the major source of imports from the EU, at 8.9% (P609.1 Million) of total imports during the period under review.
Meanwhile, Minister of Finance and Economic Development Thapelo Matsheka says an improvement in exports and commodity prices will drive growth in Sub-Saharan Africa. Growth in the region is anticipated to recover modestly to 3.2% in 2021. Matsheka said this when delivering the Annual Budget Speech virtually in Gaborone on the 1st of February 2021.
He said implementation of the African Continental Free Trade Area Agreement (AfCFTA), which became operational in January 2021, could reduce the region’s vulnerability to global disruptions, as well as deepen trade and economic integration.
“This could also help boost competition and productivity. Successful implementation of AfCFTA will, of necessity, require Member States to eliminate both tariffs and non-tariff barriers, and generally make it easier to do business and invest across borders.”
Matsheka, who is also a Member of Parliament for Lobatse, an ailing town which houses the struggling biggest meat processing company in the country- Botswana Meat Commission, (BMC), said the Southern African Customs Union (SACU) recognizes the need to prioritize the key processes required for the implementation of the AfCFTA.
“The revised SACU Tariff Offer, which comprises 5,988 product lines with agreed Rules of Origin, representing 77% of the SACU Tariff Book, was submitted to the African Union Commission (AUC) in November 2020. The government is in the process of evaluating the tariff offers of other AfCFTA members prior to ratification, following which Botswana’s participation in AfCFTA will come to effect.”
Women continue to shadow men in politics – stereotypes such as ‘behind every successful man there is a woman’ cast the notion that women cannot lead. The 2019 general election recorded one of Botswana’s worst performances when it comes to women participation in parliamentary democracy with only three women elected to parliament.
Botswana’s former Minister of Health, Professor Sheila Tlou who is currently the Co-Chair, Global HIV Prevention Coalition & Nursing Now and an HIV, Gender & Human Rights Activist is not amused by the status quo. Tlou attributes this dilemma facing women to a number of factors, which she is convinced influence the voting patterns of Batswana when it comes to women politicians.
Professor Tlou plugs the party level voting systems as the first hindrance that blocks women from ascending to power. According to the former Minister of Health, there is inadequate amount of professionalism due to corrupt internal party structures affecting the voters roll and ultimately leading to voter apathy for those who end up struck off the voters rolls under dubious circumstances.
Tlou also stated that women’s campaigns are often clean; whilst men put to play the ‘politics is dirty metaphor using financial muscle to buy voters into voting for them without taking into consideration their abilities and credibility. The biggest hurdle according to Tlou is the fallacy that ‘Women cannot lead’, which is also perpetuated by other women who discourage people from voting for women.
There are numerous factors put on the table when scrutinizing a woman, she can be either too old, or too young, or her marital status can be used against her. An unmarried woman is labelled as a failure and questioned on how she intends on being a leader when she failed to have a home. The list is endless including slut shaming women who have either been through a divorce or on to their second marriages, Tlou observed.
The only way that voters can be emancipated from this mentality according to Tlou is through a robust voter education campaign tailor made to run continuously and not be left to the eve of elections as it is usually done. She further stated that the current crop of women in parliament must show case their abilities and magnify them – this will help make it clear that they too are worthy of votes.
And to women intending to run for office, Tlou encouraged them not to wait for the eleventh hour to show their interest and rather start in community mobilisation projects as early as possible so that the constituents can get to know them and their abilities prior to the election date.
Youthful Botswana National Front (BNF) leader and feminist, Resego Kgosidintsi blames women’s mentality towards one another which emanates from the fact that women have been socialised from a tender age that they cannot be leaders hence they find it difficult to vote for each other.
Kgosidintsi further states that, “Women do not have enough economic resources to stage effective campaigns. They are deemed as the natural care givers and would rather divert their funds towards raising children and building homes over buying campaign materials.”
Meanwhile, Vice President of the Alliance for Progressives (AP), Wynter Mmolotsi agrees that women’s participation in politics in Botswana remains a challenge. To address this Mmolotsi suggested that there should be constituencies reserved for women candidates only so that the outcome regardless of the party should deliver a woman Member of Parliament.
Mmolotsi further suggested that Botswana should ditch the First Past the Post system of election and opt for the proportional representation where contesting parties will dutifully list able women as their representatives in parliament.
On why women do not get elected, Mmolotsi explained that he had heard first hand from voters that they are reluctant to vote for women since they have limited access to them once they have won; unlike their male counterparts who have proven to be available night or day.
The pre-historic awarding of gender roles relegating women to be pregnant and barefoot at home and the man to be out there fending for the family has disadvantaged women in political and other professional careers.