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DCEC new chief lays down sweeping reforms

Directorate on Corruption and Economic Crime (DCEC) Director General Victor Bruno Paledi has laid down sweeping reforms for his agency.

Paledi ascended to DCEC as Director on 1st September 2017 following the departure of erstwhile boss Rose Seretse to the newly formed Botswana Energy Regulatory Authority (BERA) also as its head. When speaking to WeekendPost on the sidelines of the Botswana’s second review cycle of United Nations Convention against Corruption, organized by the DCEC, Paledi hinted on his reforms that will transform the corruption busting agency.

“As you know, when someone gets into office they have their own strategy; have strategic plan and know the critical things that you want to focus on. And therefore my main focus will be prevention. Investigations will not be the backbone of my agenda. Priority will be prevention. But of course investigations will also be done as its part and parcel of the system,” he told this publication.

According to Paledi, he will focus much on crime prevention for a very simple reason being that cases involving millions of pula drag too long at the courts spanning close to 10 years, and on the way witnesses may die out of natural causes, and some might resign from their jobs, so they (investigations) can really get difficult. He emphasised that “you can’t really base your strategy on investigation. Investigation is reactive. It comes after the corruption has already been done.”

In a carefully calculated manner and to avoid being misconstrued, the former Deputy Commissioner of Botswana Police Service (operations) stressed that but he is not saying they will not do investigations at all.But rather that “investigations are necessary although we know it takes time and need a lot of money but we will still do it nonetheless. And when we do them we must do it to the best of our abilities. We need people who are highly trained and skilled to do it. But it will not be number one priority for us.”

DCEC Director General says DCEC is independent

Paledi also pointed out that another critical thing that he really wants the DCEC to be is that it should be highly professional and that it should also be a very independent organisation which is reputable internationally. However he was quick to highlight that “it’s not to suggest that we are not independent because independence is a function of the mind.”

He continued: “Independence is in the mind. It’s a function of the mind. There is no institution that can hand it over to you on silver platter. What you think and how ethical you are defines independence. I may give you the powers to do something and you may not realize that you are independent if you don’t know what it really entails.”

The maverick DCEC Director General explained that when the agency accounts to the Minister of Presidential Affairs, Governance and public Administration, it doesn’t necessarily mean it is not independent but rather that it is using public funds and that they have to account for them to someone of higher-ranking.

“So, still in this predicament even if I investigate cases of people that are senior to me, I need not bow down to their seniority. And it would have been not them who told me to bow down. I need to go out to them and do my job. If anything I maybe get fired and that’s okay as you will all know why I was fired in that case. So this is the independence am referring to,” he emphasised.

Paledi, who started his career as a teacher, also said it’s very difficult to say whether he is comfortable or not for DCEC to continue reporting to the Minister instead of parliament because reporting to the minister to him does not necessary compromise his operations anyhow.  

“But I don’t know if someone comes into my position how he will react as they may look at it differently.” He added: “I can still report to parliament and still feel am not free depending on the constitution of parliament. As you know the ruling party may still be there to keep the status quo at DCEC.”

Paledi says DCEC remains powerful, does not even fear DIS

According to Paledi, DCEC is a big institution, very well resourced, consisting of lawyers, engineers, and he doesn’t know what other people mean that DCEC fears the DIS or anyone for that matter. This is in light of utterances by ex Minister of Mineral Resources, Green Technology and Energy Security, Sadique Kebonang who revealed to Public Accounts Committee (PAC) recently when appearing before it that DCEC, including cabinet ministers and the public, fear Directorate on Intelligence and Security Services (DISS).

But Paledi differs with Kebonang: “the one who said that is dim-witted. He should unpack what they mean by this because as DCEC we go out for everyone equally. So whoever says that maybe just did out of frustration.”
Another independent thinker who has criticized the DCEC describing it as “useless” is Kgosi Ngakaagae, a renowned attorney who is representing Bakang Seretse in a marathon case involving 250 million diverted from the National Petroleum Fund to DISS.

Ngakaagae had said about DCEC: “this is a hopeless department that does not fight corruption but that protects it.  This simple act of selective charging is in its self an act of corruption by DCEC. You have to understand that. That is stupid on the part of the DCEC. They are crying because we are asking why Kgosi is not prosecuted. That is the nonsense they are crying for and it is really regrettable just because when we ask if our clients are guilty why are particular people not prosecuted, and then all you get is harassment in turn of our clients by the DCEC.”  

He also stated on record that “I have to mention that this (DCEC) is a department of cowards. They are impotent they are hopeless. They tremble at power and they feed on the meek that is the DCEC for you. You can’t tremble at power when you are an investigative authority and then feed on the meek, chasing people accused of stealing P200 and those owing traffic fines and then bang P250 million is gone and what do you do; you can’t look at power in the eyes and say account.”

In light of Ngakaagae statements on DCEC, when defending the organ, Paledi stated that the DCEC is competent. “DCEC is not incompetent. Those who say it is are just frustrated. Investigations take long and it is by their nature.” Ngakaagae said this because he wants DCEC to also charge DISS former Director Isaac Kgosi as he is implicated in the matter before the courts as documents indicate he authorized the imbursement of funds from NPF to DISS.

However when quizzed about if indeed they fear(ed) Kgosi and DISS, Paledi would not venture into that discussion including whether they would later investigate Kgosi or not. Instead he said, that he (Kgosi) was fired this week was news to his ear and that he was constrained to talk about it as there is a matter before the courts that would deal with such matters.

Meanwhile, reports indicate that Paledi was at one point accused of conniving with DIS Director General, Kgosi to release DIS agents who were arrested with suspected poached elephant tusks while he (Paledi) was acting Commissioner of Police.
The Sunday Standard newspaper reported then that one Mosetse was deployed by the Office of the President to head Operation Save Isaac Kgosi who it was believed then that he would be brought in to lead the DCEC as part of a strategy to kill DISS boss’ corruption case.

Paledi explained that corruption cases are complicated because the perpetrators are mainly people in power and highly intelligent people. These are scientists, mathematicians, lawyers, politicians and they know all the tricks, he justified.
According to the former Police Officer, the perpetrators even review, amongst them what might happen if they are caught and go to court and their defense, and that is why, when you go to court you spend a lot of time on technical issues and that’s why it takes a lot of time.

Paledi also added that he wants DCEC to move away from being shrouded in secrecy stressing that it should rather be easily accessible. He also said “that Botswana is regarded as the least corrupt in Africa is a challenge to me because it means that if it is so am in big trouble should it slide under my watch.”Paledi is the fourth Director General to lead the corruption busting agency after Tymon Katlholo and most recently Rose Seretse.

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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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