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Zakhem, P436 million and a conflicted Permanent Secretary

More drama at the Botswana courts is playing out, this time the permanent secretary in the Ministry of Transport and Communication, Kabelo Ebineng is compelled to defend his 20 year friendship with businessman Nicholas Zakhem who convinced him to terminate a contract for a Consultant engaged in the construction of the Charles Hill- Ncojane road.

Zac Construction, whose Managing Director is Zakhem is the contractor in the project. The two parties are throwing jabs of conflict of interest at each other and the permanent secretary has stated that he has even borrowed money from Zakhem, a red flag already observed by the consultant, Bothakga Burrow.

Zakhem has flatly refused to work with the Consultant, Bothakga Burrow Botswana (BBB) accusing them of being difficult to work with and later alleging conflict of interest on their part – they had tendered for the same project, he says. BBB was awarded the Consultant contract by the PPADB with the Ministry of Transport and Communications as the procuring entity.

As of 16 February 2018 Bothakga Burrow Botswana has dragged the Ministry of Transport and Communications before court accusing it of unlawfully terminating its contract. Ebineng terminated BBB’s contract with effect from 16 February 2018 citing convenience on the part of the Employer or procuring entity. But Bothakga is arguing that the Ministry did not follow the correct procedure when terminating the contract and the Public Procurement and Asset Disposal Board (PPADB) agrees with Bothakga.

Zac Construction was awarded the Charles Hill – Ncojane tender on 26th November 2013 for an amount of P436 279 046. 45 to be completed in 36 months on a design and build basis. In January 2017, sixteen months after commencement of construction Zac or Zakhem complains to the Ministry of Transport citing conflict of interest on the part of the consultant, Bothakga Burrow. His views are such that the consultant has not been properly appointed and he threatens to stop taking instructions from the Consultant and requests that Bothakga Burrow be removed from the project. The then permanent secretary, Elias Magosi dismissed Zakhem’s allegations and warned him to abide by the contract which he would have defaulted on the contract.

Records show that in May 2017, one month after the appointment of Kabelo Ebineng as Permanent Secretary at the Ministry of Transport, Zakhem restarts work after a four week unauthorized stoppage of work, and reconfirms that they will not work with the Consultant, Bothakga Barrow, and again he requested the removal of the Consultant.

What has irked Bothakga Burrow directors before their contract was terminated is that the Permanent Secretary at a meeting held on 19th June 2017 he confirmed that “he and Mr Nicholas Zakhem know each other socially. He mentioned that he has even had the opportunity to borrow money from him because of their relationship and they continue to have a relationship.”  After this meeting Bothakga Burrow requested that Ebineng recuse himself from meeting dealing with the matter but he refused stating that there was no conflict of interest.

During the course of July 2017, construction was suspended by the consultant, because the contractor was no longer accepting project works to be tested, as per the contract, however the Contractor proceeded to construct 12km of road, whose quality could not be vouched for. Ebineng immediately requested Bothakga to withdraw the suspension and he instructed Zac Construction to proceed with construction work unsupervised.

Records further show that by September 2017 the Parliamentary Committee on Communications, Works, Transport, and Technology, had visited the project site to understand the challenges on the project. Shortly thereafter the Contractor on his own volition stopped construction on the project, and demanded to be paid for the 12km of road that he had refused to have tested. The Consultant was asked by the permanent secretary to certify payment for the 12km, and declined to do so without verifying the quality of works in accordance with the contract.

Indications are that at some stage the Permanent Secretary to the President, Carter Morupusi intervened and advised that the project be executed in accordance with the signed contracts of all parties. In all meetings, Zac Construction requested that the Consultant be removed as a pre-condition to return to work on the project.

WeekendPost learns that by the end of 2017 the Ministry had paid Zac Construction for the 12km of untested road works; failed to test or verify the quality of the constructed work; acceded to the contractor’s request to remove the Consultant from the project; the permanent secretary has refused to recuse himself from dealing with the matter which he is said to be conflicted; the PPADB had notified him that his position is untenable.  

Ebineng’s defense of his relationship with Zakhem is a simplified one. He states that he knows most of the contractors, engineers, and consultants that deal with his Ministry. He states that most of them he went with them to school, met them at play grounds, socializes with them hence he wonders if he will recuse himself for almost everyone in town. On the other hand allegations of conflict of interest on the part of Bothakga were dismissed by the PPADB but the Ministry through Ebineng held that conflict was inherent.

The two parties are now in court with Bothakga Burrow Botswana pleading with the court to reverse the unlawful decision of the permanent secretary. Bothakga Burrow Botswana’s contract is worth P40 million. Judge Rannowane gave both parties an ear on 16th March 2018 and will deliver judgement next month.

Some in the Ministry are worried that Ebineng’s actions are setting a bad precedent that will have far reaching consequences for the entire construction industry where contractors can pick and choose who they want to supervise them. They also raise a concern for the role of PPADB in awarding and terminating contracts, where government can willfully undermine its own laws and institutions. After receiving a notice to terminate their contract from the permanent secretary BBB wrote to PPADB seeking clarity and confirmation on whether the Board had approved that their contract be terminated as is the prescription of the law.

PPADB DISOWNS EBINENG’S GAMBITS

In a letter dated 23rd February 2018 PPADB writes “…that the award of this contract was a result of a tendering process which was in line with the PPAD Act and the tender was awarded by PPADB. In light of your appreciation of the provisions of the PPAD Act and further applicable statutory instruments, the termination of the contract must be preceded by the approval of the PPADB.”

Bothakga Burrow Botswana (BBB) had argued that in line with the PPAD Act, the termination should only be implemented after the ministry has obtained authority or approval from the PPADB. BBB further argues that, in previous correspondences addressed to them by the Ministry of Transport and Communication, the latter had indicated that they were seeking approval from the Board to terminate the contract and therefore they (BBB) expected that letter of termination issued to them by the Ministry should have been preceded by approval of such termination by the Board.

From previous correspondences the Permanent Secretary, Kabelo Ebineng had appreciated that the contract entered into with BBB cannot be terminated without requisite approval from PPADB. The PPADB decided at its meeting held on 22nd February 2018 after considering a submission from BBB, that the “termination was an un-procedural act as it contravened a provision of the PPAD act.” It boldly states that the decision to terminate the contract was not sanctioned by the Board.

The PPADB went further and informed Ebineng through a letter dated 23rd February 2018 that “The Board at its sitting of the 22nd February 2018 considered the Consultant’s submission and noted with concern that the Ministry has proceeded to terminate the contract following the lapse of the period of the Notice of intention to Terminate without the requisite Board’s approval to resile from the Contract.

The Board determined that indeed the Ministry ought to have sought approval for authorization to resile from the contract as mandated by Section 47 of the PPAD Act, and that the omission by the Ministry to so do results in the inevitable conclusion that termination was un-procedural and therefore unlawful as it contravened a provision of the Act. The Board therefore has confirmed to the Consultant that it has not approved termination.”

“The Board is also greatly concerned that the Ministry has deliberately breached the law as it proceeded to resile from the Contract without seeking the requisite approval from the Board…The Ministry is cautioned from deliberately contravening the Act and is advised to rectify the error by reinstating the contract and follow due process if it wishes to invoke its rights to terminate the contract. The Ministry should note that the Board is mandated by Section 27 of the PPAD Act to ensure that all procuring entities comply fully with all the provisions of the Act.” The PPADB copied its correspondence to the Auditor General and the Permanent Secretary to the President “for their information and appropriate action.”

EBINENG REMAINS DEFIANT

However in a response letter dated 28th February 2018, Ebineng remained defiant and informed the PPADB “…on the above understanding, and considering the exigencies of the matter as well as our responsibilities as a procuring entity to manage the contractual issues and consequences thereto, we confirm the termination of contract with Bothakga Burrow Botswana (Pty) ltd, with effect on 16 February 2018.” Ebineng stated confidently that “we believe that the notice to terminate cannot be requested where the Contract is terminated at the convenience of the Employer.”

He stated that in order to avert the possibility of incurring avoidable costs, which may crystalize as a result of not moving swiftly in finding a solution to the underlying problem; as well as taking into consideration the public interest, “which I had discussed extensively, with both the Contractor and the Engineer, a decision had to be made. After considering many factors it made sense to terminate one of the parties with whom we had contracted. In the circumstances we terminated Bothakga Burrow Botswana,” said Ebineng.

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DIS blasted for cruelty – UN report

26th July 2022
DIS BOSS: Magosi

Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.

Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.

She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”

Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.

On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.

“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.

One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.

The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”

The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.

Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.

Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.

The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.

The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.

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Stan Chart halts civil servants property loan facility

26th July 2022
Stan-Chart

Standard Chartered Bank Botswana (SCBB) has informed the government that it will not be accepting new loan applications for the Government Employees Motor Vehicle and Residential Property Advance Scheme (GEMVAS and LAMVAS) facility.

This emerges in a correspondence between Acting Permanent Secretary in the Ministry of Finance Boniface Mphetlhe and some government departments. In a letter he wrote recently to government departments informing them of the decision, Mphetlhe indicated that the Ministry received a request from the Bank to consider reviewing GEMVAS and LAMVAS agreement.

He said: “In summary SCBB requested the following; Government should consider reviewing GEMVAS and LAMVAS interest rate from prime plus 0.5% to prime plus 2%.” The Bank indicated that the review should be both for existing GEMVAS and LAMVAS clients and potential customers going forward.

Mphetlhe said the Bank informed the Ministry that the current GEMVAS and LAMVAS interest rate structure results into them making losses, “as the cost of loa disbursements is higher that their end collections.”

He said it also requested that the loan tenure for the residential property loans to be increased from 20 to 25 years and the loan tenure for new motor vehicles loans to be increased from 60 months to 72 months.

Mphetlhe indicated that the Bank’s request has been duly forwarded to the Directorate of Public Service Management for consideration, since GEMVAS and LAMVAS is a Condition of Service Scheme. He saidthe Bank did also inform the Ministry that if the matter is not resolved by the 6th June, 2022, they would cease receipt of new GEMVAS and LAMVAS loan applications.

“A follow up virtual meeting was held to discuss their resolution and SCB did confirm that they will not be accepting any new loans from GEMVAS and LAMVAS. The decision includes top-up advances,” said Mphetlhe. He advised civil servants to consider applying for loans from other banks.

In a letter addressed to the Ministry, SCBB Chief Executive Officer Mpho Masupe informed theministry that, “Reference is made to your letter dated 18th March 2022 wherein the Ministry had indicated that feedback to our proposal on the above subject is being sought.”

In thesame letter dated 10 May 2022, Masupe stated that the Bank was requesting for an update on the Ministry’s engagements with the relevant stakeholder (Directorate of Public Service Management) and provide an indicative timeline for conclusion.

He said the “SCBB informs the Ministry of its intention to cease issuance of new loans to applicants from 6th June 2022 in absence of any feedback on the matter and closure of the discussions between the two parties.”  Previously, Masupe had also had requested the Ministry to consider a review of clause 3 of the agreement which speaks to the interest rate charged on the facilities.

Masupe indicated in the letter dated 21 December 2021 that although all the Banks in the market had signed a similar agreement, subject to amendments that each may have requested. “We would like to suggest that our review be considered individually as opposed to being an industry position as we are cognisant of the requirements of section 25 of the Competition Act of 2018 which discourages fixing of pricing set for consumers,” he said.

He added that,“In this way,clients would still have the opportunity to shop around for more favourable pricing and the other Banks, may if they wish to, similarly, individually approach your office for a review of their pricing to the extent that they deem suitable for their respective organisations.”

Masupe also stated that: “On the issue of our request for the revision of the Interest Rate, we kindly request for an increase from the current rate of prime plus 0.5% to prime plus 2%, with no other increases during the loan period.” The Bank CEO said the rationale for the request to review pricing is due to the current construct of the GEMVAS scheme which is currently structured in a way that is resulting in the Bank making a loss.

“The greater part of the GEMVAS portfolio is the mortgage boo which constitutes 40% of the Bank’s total mortgage portfolio,” said Masupe. He saidthe losses that the Bank is incurring are as a result of the legacy pricing of prime plus 0% as the 1995 agreement which a slight increase in the August 2018 agreement to prime plus 0.5%.

“With this pricing, the GEMVAS portfolio has not been profitable to the Bank, causing distress and impeding its ability to continue to support government employees to buy houses and cars. The portfolio is currently priced at 5.25%,” he said.  Masupe said the performance of both the GEMVAS home loan and auto loan portfolios in terms of profitability have become unsustainable for the Bank.

Healso said, when the agreement was signed in August 2018, the prime lending rate was 6.75% which made the pricing in effect at the time sufficient from a profitable perspective. “It has since dropped by a total 1.5%. The funds that are loaned to customers are sourced at a high rate, which now leaves the Bank with marginal profits on the portfolio before factoring in other operational expenses associated with administration of the scheme and after sales care of the portfolio,” said the CEO.

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Botswana ranked 129 in female MPs representation

26th July 2022
Minister of Finance & Economic Development Peggy Serame

The Global Gender Gap Index, a report published by the World Economic Forum annually, has indicated that Botswana is among countries that fare badly when it comes to representation of women in legislative bodies.

The latest Global Gender Gap Index, published last week, benchmarks the current state and evolution of gender parity across four key dimensions (Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment). It is the longest-standing index which tracks progress towards closing these gaps over time since its inception in 2006.

This year, the Global Gender Gap Index benchmarked 146 countries. Of these, a subset of 102 countries have been represented in every edition of the index since 2006, further providing a large constant sample for time series analysis.

Botswana ranks number 66 overall (out of 146 countries), with good rankings in most of the pillars. Botswana ranks 1st in Health and Survival, 7th in the Economic Participation and Opportunity, 22nd in Educational Attainment, and 129th in Political Empowerment.

The Global Gender Gap Index measures scores on a 0 to 100 scale and scores can be interpreted as the distance covered towards parity (i.e. the percentage of the gender gap that has been closed). The cross-country comparisons aim to support the identification of the most effective policies to close gender gaps.

The Economic Participation and Opportunity sub-index contains three concepts: the participation gap, the remuneration gap and the advancement gap. The participation gap is captured using the difference between women and men in labour-force participation rates. The remuneration gap is captured through a hard data indicator (ratio of estimated female-to-male earned income) and a qualitative indicator gathered through the World Economic Forum’s annual Executive Opinion Survey (wage equality for similar work).

Finally, the gap between the advancement of women and men is captured through two hard data statistics (the ratio of women to men among legislators, senior officials and managers, and the ratio of women to men among technical and professional workers).

The Educational Attainment sub-index captures the gap between women’s and men’s current access to education through the enrolment ratios of women to men in primary-, secondary- and tertiary-level education. A longer-term view of the country’s ability to educate women and men in equal numbers is captured through the ratio of women’s literacy rate to men’s literacy rate.

Health and Survival sub-index provides an overview of the differences between women’s and men’s health using two indicators. The first is the sex ratio at birth, which aims specifically to capture the phenomenon of “missing women”, prevalent in countries with a strong son preference. Second, the index uses the gap between women’s and men’s healthy life expectancy.

This measure provides an estimate of the number of years that women and men can expect to live in good health by accounting for the years lost to violence, disease, malnutrition and other factors.
Political Empowerment sub-index measures the gap between men and women at the highest level of political decision-making through the ratio of women to men in ministerial positions and the ratio of women to men in parliamentary positions. In addition, the reported included the ratio of women to men in terms of years in executive office (prime minister or president) for the last 50 years.

In the last general elections, only three women won elections, compared to 54 males. The three women are; Nnaniki Makwinja (Lentsweletau-Mmopane), Talita Monnakgotla (Kgalagadi North), and Anna Mokgethi (Gaborone Bonnington North). Four women were elected through Specially Elected dispensation; Peggy Serame, Dr Unity Dow, Phildah Kereng and Beauty Manake. All female MPs — save Dow, who resigned — are members of the executive.

Overall, Botswana has 63 seats, all 57 elected by the electorates, and six elected by parliament. Early this year, Botswana Democratic Party (BDP) secretary general and Gaborone North MP, Mpho Balopi, successfully moved a motion in parliament calling for increment of elective seats from 57 to 61. Balopi contented that population growth demands the country respond by increasing the number of MPs.

In Africa, Botswana play second fiddle to countries like Rwanda, Namibia, South Africa, Burundi, and Zimbabwe who have better representation of women, with Rwanda being the only country with more than 50 percent of women in parliament.

The low number of women in parliament is attributed to Botswana’s current, electoral system, First-Past-the-Post. During the 9th parliament, then MP for Mahalapye East tabled a motion in parliament in which she sort to increase the number of Specially Elected MPs in parliament to augment female representation in the National Assembly.

The motion was opposed famously, by then Specially Elected MP, Botsalo Ntuane, who said the citizens were not in favour of such a move since it dilute democracy, instead suggesting the Botswana should switch to Proportional-Representation-System. Botswana is currently undergoing Constitutional Review process, with the commission, appointed in December, expected to deliver the report to President Mokgweetsi Masisi by September this year.

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