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DPP powers challenged in court

After being put under a restraining order by the Directorate of Public Prosecutions (DPP) recently, Kgori Capital has now launched a civil application challenging powers of the DPP.

In their filing notice filed before the court this week, Kgori Capital stated that, “The DPP does not have the requisite to institute this confiscation civil penalty application. The powers of the DPP are set out in the constitution of the Republic of Botswana at Section 51 A (3) (a), (b), (c) and (d). These powers are primarily and exclusively prosecutorial in nature.”

Kgori goes on to state that the powers do not include the institution of civil penalty order application in terms of the Proceeds and Instrumental of Crime Act. And that the sections which seek to clothe the DPP with the power to institute these proceedings are ultra vires the constitution to the extent that they seek the powers of the DPP beyond those that have been defined by the constitution. The sections, they contend are invalid and unconstitutional and of no force and effect at law. They urged the court to strike down the sections as unconstitutional and void.

DPP was granted the application of forfeiture of P10 million by Lobatse High Court Judge Nthomiwa last week. He stated he was relying on Section 35(3) of the Proceeds and Instruments of Crime Act, Cap 08:03. “The order relates to the credit amount of P10 million standing to the credit of Investment Account Number: 906 000 149 0058 held by Kgori Capital Botswana Kgori Capital with Stanbic Bank Botswana. The receiver shall take control of all property specified in the order pending the institution and finalization of proceedings for a Civil Penalty Order,” Judge Nthomiwa ruled.



He went on to stress that all persons with knowledge of this order were, other than as required and permitted by the order, prohibited from dealing with the said amount, “except in the manner or circumstances, if any, specified in the order”. The sum in question is a portion of the total credit balance of P30m standing to the same account as at January 22, 2018.

An affidavit deposed by Director of Public Prosecutions (DPP), Stephen Tiroyakgosi states that the amount in question represents a reasonable estimate of the value of benefits and incidental expenses derived by Kgori Capital as a result of a multiple serious related criminal activities.

The offences include cheating the public revenue; abuse of public office; obtaining by false pretences and money laundering.

The court heard that Kgori Capital had over a period of 10 months, debited to the Kgori National Petroleum Fund Account held with Stanbic Bank the total amount of P10m ostensibly as management fees contrary to the consultancy agreement. The consultancy agreement is such that Kgori Capital could only benefit as a sub-contractor with whatever fees it might be entitled to, claimable from Basis Points Capital Botswana Limited from the consultancy price.

“By paying itself the so called management fees from the Kgori National Petroleum Fund account, Kgori Capital breached the National Petroleum Fund and diverted to itself the said P10m. As investigations are continuing, this figure is likely to change, especially at the time of making of the substantive order,” states Tiroyakgosi in his affidavit.

It is said that from March 7, 2016 to December 14, 2017, various debits were entered against the National Petroleum Fund account No: 906 000 208 5742 held with Stanbic Bank, with the amounts credited to the Kgori Capital bank account No: 906 000143 6320 held by Kgori Capital with Stanbic Bank Botswana allegedly as management fees in payment to Kgori Capital.


The information before court further suggests that the investigations have revealed that the National Petroleum Fund consultancy agreement had only Basis Points Capital as the only contracting party with Botswana government concerning the services that Kgori Capital purported to render and to be entitled to be paid for. “Kgori Capital could only render the services to government as a sub-contractor under the consultancy agreement, with all its fees only claimable from and payable by Basis Points Capital.

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The Department of Energy late last year withdrew all National Petroleum Fund monies and investment portfolios from respective banks and investment institutions. A communication from the Department of Energy stated that all proceeds into the National Petroleum Fund would now be deposited into the Government Remittance account held at Bank of Botswana. Furthermore, all commitments out of the Fund shall be routed through the Ministry of Finance and Economic Development for payment through the Government Remittance account.



The latest decision by government follows a series of events originated by a money laundering charge on one Bakang Seretse who was Managing Director of Kgori Capital is in his personal capacity implicated in a case involving P326 million which is perceived as thus far the leading financial scandal in monetary value. Bakang is accused alongside two others, Botho Leburu and Kenneth Kerekang. Alphonse Ndzinge is the new Kgori Executive Manager.

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Understanding the US Electoral College and key election issues 

28th October 2020
Mark J Rozell

The United States (US) will on the 3rd of November 2020 chose between incumbent Donald Trump of the Republicans and former Vice President Joe Biden of the Democrats amid the coronavirus pandemics, which has affected how voting is conducted in the world’s biggest economy.

Trump (74) seeks re-election after trouncing Hillary Clinton in 2016, while Biden (77) is going for his first shot as Democratic nominee after previous unsuccessful spells.

US Presidents mostly succeed in their re-election bid, but there have been nine individuals who failed to garner a second term mandate, the latest being George W H. Bush, a Republican who served as the 41st US President between 1989 and 1993.

Dr Mark Rozell, a Dean of  the School of Policy and Government at George Mason University  in  Arlington, Virginia describes the complex US electoral system that will deliver the winner at the 3rd November elections.

“The founders of our Republic de-centralised  authority  significantly  in  creating  our  constitutional  system,  which  means that  they  gave  an  enormous  amount  of  independent  power  and  authority  to  State  and  local governments,” Dr Rozell told international media on Elections 2020 Virtual Reporting Tour.

Unlike  parliamentary  democracies, like Botswana the  United  States  does  not  have  all  of  the  national government elected in one year. They do not have what is commonly called mandate elections where  the  entire  federal  government  is  elected  all  in  one  election  cycle  giving  a  “mandate”  to  a particular political party to lead, and instead US have what are called staggered elections, elections over time.

The two house Congress, members of the House of Representatives have two-year long terms of office. Every two years the entire House of Representatives is up for re-election, but senators  serve  for  six  years  and  one  third  of  the  Senate is elected every  two  years.

For this election cycle, US citizens will be electing the President and Vice

President, the entire House of Representatives and one third of the open or contested seats in the Senate, whereas two thirds are still fulfilling the remainder of their terms beyond this year.

An  important  facet  of  US electoral  system  to  understand  given  the  federalism  nature  of  the republic, the US elect presidents State by State, therefore they do not have a national popular vote for the presidency.

“We have a national popular vote total that says that Hillary Clinton got three million more votes than Donald Trump or in Year 2000 that Al Gore got a half million more votes than George W. Bush, but we have what is called a State by State winner takes all system where each State  is  assigned  a  number  of  electors  to  our  Electoral  College  and  the  candidate  who  wins  the popular vote within each State takes 100 percent of the electors to the Electoral College,” explained Dr Rozell.

“And that is why mathematically, it is possible for someone to win the popular vote but lose the presidency.”

Dr Rozell indicated that in 2016, Hillary Clinton won very large popular majorities in some big population States like California, but the system allows a candidate to only have to  win  a  State  by  one  vote  to  win  a  100 percent of  its  electors,  the  margin  does  not  matter.

“Donald  Trump  won  many  more  States  by  smaller  margins,  hence  he  got  an  Electoral  College majority.”

Another interesting features by the way of US constitutional system, according to Dr Rozell, but extremely rare, is what is called the faithless elector.

“That’s the elector to the Electoral College who says, ‘I’m not going to vote the popular vote in my State, I think my State made a bad decision and I’m going  to  break  with  the  popular  vote,’’ Dr Rozell said.

“That’s constitutionally a very complicated matter in our federalism system because although the federal constitution says electors may exercise discretion, most States have passed State laws making it illegal for any elector to the Electoral College to break faith with the popular vote of that State, it is a criminal act that can be penalized if one is to do that. And we just had an important Supreme Court case that upheld the right of the states to impose and to enforce this restriction”

There are 538 electors at the Electoral College, 270 is the magic number, the candidate who gets 270 or more becomes President of the United States.

If however there are more candidates, and  this  happens  extremely  rarely,  and  a  third  candidate  got  some electors  to  the  Electoral  College  denying  the  two  major  party  candidates,  either  one  getting  a majority, nobody gets 270 or more, then the election goes to the House of Representatives and the House of Representatives votes among the top three vote getters as to who should be the next President.

“You’d have to go back to the early 19th century to have such a scenario, and that’s not going to happen this year unless there is a statistical oddity, which would be a perfect statistical tie of 269 to 269 which could happen but you can just imagine how incredibly unlikely that is,” stated Dr Rozell.

BLUE STATES vs RED STATES

Since the 2000 United States presidential election, red states and blue states have referred to states of the United States whose voters predominantly choose either the Republican Party (red) or Democratic Party (blue) presidential candidates.

Many  states  have  populations  that  are  so  heavily  concentrated  in  the  Democratic party or the Republican party that there is really no competition in those states.

California is a heavily Democratic State, so is New York and Maryland. It is given that Joe Biden will win those states. Meanwhile Texas, Florida and Alabama are republicans. So, the candidates will spent no time campaigning in those states because it is already a given.

However there are swing  states, where  there is a competition between about five and 10 states total in each election cycle that make a difference, and that is where the candidates end up spending almost all of their time.

“So  it  ends  up  making  a  national  contest  for  the  presidency  actually  look  like  several  state-wide contests with candidates spending a lot of time talking about State and local issues in those parts of the country,” said Dr Rozell.

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Masisi to make things right with Dangote

26th October 2020

High Commissioner of the Federal Government of Nigeria to Botswana, His Excellency Umar Zainab Salisu, has challenged President Dr Mokgweetsi Masisi to move swiftly and lobby Africa’s richest man, Nigerian Billionaire, Aliko Dangote to invest in Botswana.

Speaking during a meeting with President Masisi at Office of President on Thursday Zainab Salisu said Dangote has expressed massive interest in setting up billion dollar industries in Botswana.  “We have a lot of investors who wish to come and invest in Botswana , when we look at Botswana we don’t see Botswana itself , but we are lured by its geographic location , being in the centre of Southern Africa presents a good opportunity for strategic penetration into other markets of the region,” said Salisu.

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Dow wants GBV culprits isolated

26th October 2020
Unity Dow

As murder cases and violent incidents involving couples and or lovers continue to be recorded daily, Specially Elected Member of Parliament, Dr Unity Dow has called for more funding of non-governmental organizations and accelerated action from government to come up with laws that could inhibit would-be perpetrators of crimes related to Gender Based Violence (GBV).

Just after Dr Dow had deposited her views on this subject with this reporter, a young man in Molepolole opened fire on a married woman he was having an affair with; and ended her life instantly. While it is this heinous cases that get projected to the public space, the former minister argues that the secrecy culture is keeping other real GBV cases under wraps in many spaces in the country.

The former Minister of Foreign Affairs and International Cooperation said there is GBV all the time in all kinds of places. “We have become accustomed to stories of rapes, marital rapes, defilement of children, beatings and psychological violence and even killings,” she said.

Gender-based violence is a phenomenon deeply rooted in gender inequality, Dow is worried that there is absolutely no social punishment for perpetrators; they will continue to have the same friends, jobs, wives, homes, as before. Yet another factor, she said, is that there is little or no “justice” for victims of GBV.

The renowned activist said justice for GBV victims is not just the jailing of the perpetrator. “Justice for victims means an agile, victim-friendly, accessible (time, money and procedures) and restorative justice system.”

Asked what could be leading to a spike in Gender Based Violence cases or incidents, she observed that there is no one factor to which this spike can be attributed. “The most obvious factor is stress as a result of economic distress and or poverty. Poverty makes one vulnerable and open to compromises that they would otherwise not make. For perpetrators with anger management issues, economic stress leads to lashing out to those closest to them. Another factor is the disintegration of families and family values,” she opined.

According to Dow, no government anywhere in the world is doing enough, period. “We know the places and spaces where women and girls are unsafe. We know the challenges they face in their attempts to exit those spaces and places.” The former Judge of the High Court said GBV undermines the health, dignity, security and autonomy of its victims, yet it remains shrouded in the culture of silence.

Asked what could be done to arrest GBV cases, Dow said it is critical to involve and fund civil society organizations. She observed that much of the progress done in the area of women’s human rights was during the time when Botswana had strong and funded civil society organizations.

“The funding dried up when Botswana was declared a middle-income country but unfortunately external funding was not replaced by local funding,” she acknowledged.

Further Dow said relevant government institutions must be funded and strengthened.

“Thirdly, create a society in which it is not okay to humiliate, rape, beat or kill women. You create this by responding to GBV the same way we have responded to livestock theft. We need to create agile mechanisms that hear cases quickly and allow for the removal of suspected perpetrators from their homes, work places, boards, committees, etc.”

The former Minister said the much anticipated Inter-Ministerial Task Force on Gender Based Violence will have its work cut out for it. According to Dow, GBV is not just a justice issue, it’s not just a gender issue, but rather an issue that cuts across health, education, labour, economic, housing and politics. “As long as any one believes it is someone else’s problem, we will all have the problem,” she said.

In her view, Dow said every work, educational and other place must have a GBV Policy and/or Code of Conduct. “It is important that we acknowledge that the majority of men are law-abiding. The problem is their silence, in the face of injustice,” she observed.

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