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OAG report reveals negligence at NPF

The findings of the Office of Auditor General (OAG) have described the National Petroleum Fund (NPF) financial statements as ‘serious carelessness’.

In her report to the clerk of the National Assembly and Chairman of the Public Accounts Committee after compiling an audit recently, Auditor General, Pulane Letebele said, “In summation, the foregoing findings point to serious laxity in the management of the financial affairs of the Fund which permitted lack of clarity in relationships between the Fund and the various third party entities to be a regular feature of the business.”

“In my view, this situation persisted because the Management Committee of the Fund was largely dysfunctional and failed to provide guidance to the appointed Fund Managers as required by the Fund order,” she added. OAG was a few months ago tasked to review the administration, payments and the disbursement from NPF by a motion which was tabled in parliament. This followed a pending corruption case before the court involving Bakang Seretse, Botho Leburu and Kenneth Kerekang. The trio was alleged to have between September, 05, 2017 and November, 27, 2017 in Gaborone, illegally received the sum P250m from the NPF.

CARELESSNESS IN ILLEGAL APPOINTMENT OF KGORI

Documents by OAG leaked to this publication state that the appointment of Kgori Capital as the investment manager of the fund in 2015 was unlawful. “It was not in a manner that is prescribed by PPADB regulations,” states the document. The requirements for procurements of services and the choice of procurement method are covered by the PPADB regulations which states that: Floating of ITT, bid submitted, evaluated and awarded should be followed irrespective of the method of procurement used. The appointment according to the papers was confirmed in writing by the then director of the Department of Energy.

It is said that on signing, the former director indicated that he was duly authorized to execute the interim mandate, though the OAG did not obtain of him being authorized to do so. It is further the finding of the OAG that, in their financial proposal signed on October 8, 2015, Kgori Capital stated that the contract price had excluded capital raising fees (which had in any case not been part of the contract) and that they would be separately discussed with Ministry of Minerals Water and Energy Resources.

“Coincidentally on June 7, 2016, an officer of the Department of Energy wrote to Kgori Capital making an urgent request to provide a quotation to carryout financial transactional advisory services for raising fees. It is surprising that Kgori Capital mentioned capital raising fees even though they were never a part of the contract scope which suggests that at the time of submission of their financial proposal they had prior and privileged knowledge of the funding challenges of the three water supply projects and the need to source additional funding to complete the project, hence their statement on capital raising.” The fees for the provision of financial transactional advisory services amounted to over P2m.

CARELESSNESS IN MANAGEMENT COMMITTEE MEMBERS

The Fund order states that the Fund management committee shall include a representative of the Ministry of Finance and Development Planning who shall be a member. The OAG findings however, indicate no evidence that a representative from the same ministry was ever appointed to the committee. “Notwithstanding, the committee had not been functional. Minutes provided to audit showed that the committee met twice in two years,” states Letebele’s affidavit.

CARELESSNESS IN BANK ACCOUNTS

According to the documents, the Department of Energy signed a Small Scale Fund Agreement with the United Nations Environmental Programme (UNEP) for promotion of sulphur fuels. The Department of Energy had on March 2016 requested Kgori Capital to open an account into which an amount of over 83 000 USD would be transferred from UNEP. An amount of 51 000USD was already available for use at the time. However, OAG findings revealed observed that the account was not included in the financial statements of the Fund for the years ended March 31, 2016 and 2017.

On May 13, 2016, an amount of P60m was transferred from the Fund current account at Stanbic Bank to another Fund account at Bank Gaborone for the procurement of government strategic oil stock through Botswana Oil. “The account at Bank Gaborone is also not listed among the Fund banking accounts,” states Letebele in her report, adding that, “The omission of important matters such as bank accounts from financial statements is an indication that the affairs of the Fund were not properly managed in this respect.”

CARELESSNESS IN LEVY COLLECTIONS

Letebele has revealed that scrutiny of the records relating to levy receipts had indicated weakness in that there were no records supporting the amounts remitted by oil companies. She noted that, it was therefore not possible to ascertain that the monies credited to the Fund were the actual amounts due.

ENERGY MINISTRY DISOWNS KHULACO

Although it is not in dispute that the sum of P230m was transferred from the Fund account to Khulaco in 2017, Letebele’s report is that the ministry has denied knowledge of the said company. “On enquiry the accounting officer explained that the ministry did not have any relationship with Khulaco and was unknown to them.”

BACKGROUND

Eight years ago, the then Ministry of Minerals, Energy and Water Resources funded the construction of petroleum storage facilities around the country; and these were, and still are owned by the DIS. These were funded from the NPF. In August 2017, the DIS proposed that the ministry which has since been renamed Ministry of Mineral Resources; Green Technology and Energy Security releases an amount of P250m for the design and construction of additional sites in a bid to further expand these sites to cater for other essential government organs. The ministry promptly responded by acceding to the request and stipulated the funds within the NPF.

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Dingake talks about gay rights in tribute to Kirby

11th January 2022
Dingake

Former High Court Judge Professor Key Dingake has made his opinion known about gay rights in a glowing tribute to his retired former colleague Justice Ian Kirby.

Late last month a panel of Court of Appeal (CoA) led by Judge Kirby upheld a 2019 High Court ruling that decriminalised same-sex relations and stroke down two sections in the penal code. In his seminal judgment, Justice Kirby said these sections served only to incentivize law enforcement agents to become keyhole peepers and intruders into the private space of citizens.

In this case one Letsweletse Motshidiemang, a homosexual had instituted an application in the High Court challenging the constitutionality of Sections 164 (a) and 164 (c).

Paying tribute to Justice Kirby, Justice Dingake said overall the Kirby court was restrained and brilliant in its genre of conservatism. Judge Dingake said the case of Motshidiemang is evidence of the latter. “In a stroke of a pen, he ended the long and tortuous road to equality of gay people.

I was reminded of this long and tortuous road by a piece written by, Zackie Achmat, that indefatigable human right defender, recently, when he reflected on a union of gay men, one Khoi and the other a Dutch sailor, way back in 1735, who for their love for each other were brutally murdered,” Justice Dingake said.

He said in truth Botswana’s Constitution never denied the right to equality for gay men. It was society and the judges who did – some arguing that the time is not right to extend equality rights to gay persons – forgetting the self-evident truth that we are all born equal and that rights are not negotiable – not even with Judges.

“It ought to be remembered that the Motshidiemang case was similar to the case of Kanani that preceded it. Justice Kirby was part of the panel that sat in Kanani. In Kanani he agreed with the other Justices and refused to strike down the offensive legislation. The same legislation he struck down in Motshidiemang.

There is no doubt in my mind that Kanani was wrongly decided at the time, as several of my writings thereafter contended, having regard to the legal injunction to always interpret constitutional rights liberally and to treat the constitution as a living organism,” Justice Dingake wrote.

He added that in Kanani the Court of Appeal held back “our march to freedom for more than a decade – and perpetuated the suffering of gay persons as their being was criminalized based on an inaccurate and narrow reading of the Constitution”.

The truth of the matter is that, he said, our Constitution never denied gay persons the rights to equality and the right not to be discriminated against. “Some sections of society (may be the majority) and the bench did so. The bench did so because of the choices they exercised.

They chose to interpret the constitution restrictively, which is not permissible; they chose to be blown away by ‘public opinion’, which was not right, and they chose not read: ‘sexual orientation’, into section 15 of the constitution, which they could have done.”

Botswana’s Constitution he said commands that it be interpreted in a manner that saves humanity from the scourge of indignity – and with a sense of the future – and to secure the rights of generations yet to be born. It is always the duty of Judges to breathe life into the Constitution – and to effect the promise of the Constitution – by among other things rejecting the tyranny of the majority.

“Section 3, the principal section conferring fundamental human rights in Botswana has always been there. It was ignored in Kanani, and thankfully given effect to in Motshidiemang.  A big lesson here is the often overlooked fact: Judges matter! Who the Judge is may be life changing in any given matter.

When one considers the decision in Kanani and Motshidiemang, based on similar facts and the diametrically opposed conclusions, one may be given to think that may be: ‘the constitution is what the Judges say it is’, at any given time, as that brilliant luminary judge and scholar, Charles Evans Hughes (1862 -1948) LLD, once ruminated.”

Interestingly, Judge Dingake wrote about homosexuality more than 12 years ago in his book ‘Key Aspects of the Constitutional Law of Botswana’. Justice Dingake expressed his views on what was said then to what was said in the recent judgment.

In that book, he began the debate by stating that homosexual issues are not frequently debate in Botswana. “Empirically, the extent of homosexual tendencies is not known. In any event the phenomenon does not appear to be widespread,” the Judge wrote.

He said serious debate however cropped up sometime around August 1995, after president Robert Mugabe’s much publicized anti homosexuals speech at the Harare International Book Show. Even then, he said, the debate was only confined to a small circle of intellectuals, with the broader community generally contemptuous and not willing to engage in serious debate about the issue.

“Although the intellectual community is by no means unanimous, there are some voices, particularly emanating from the University of Botswana, that are calling for equal treatment for homosexuals. Despite the enormous capacity of such arguments to court controversy general response of the public was one of cynicism. This general lack of interest among the general populace contrasts sharply with the enthusiasm and interest on the issue, just across the border, in South Africa, where there are numerous homosexual associations,” he said.

He explained that the South African Constitution prohibits discrimination on the basis of sexual orientation, which has paved the way for homosexuals to be employed in the army, an advance that is unparalleled in modern democracies. He also explained that Botswana’s criminal law prohibits consenting adults of the same sex from having a sexual relationship, because that is said to be unnatural.

“Within the framework of Botswana’s Constitution there can be no doubt that the prohibition of sexual relationships between consenting male adults of the same sex is unconstitutional. No free society can, in this era, afford to treat its citizens differently on the basis that is patently irrational.

Every individual, is in terms of the Constitution equal before law and has the right of equal benefit of the law without discrimination. The legal recognition of homosexuals will confirm Botswana as a democratic country that is advancing with time.”

He added that it needs to be said that it is however fruitless to bury “our heads in the sand and hope the issue will disappear for good”. He concluded: “In time we will have to confront the issue head on. In time blind prejudice that stigmatizes homosexual relationships will have to stand up to rational scrutiny. It is advisable not too turn a blind eye to the pain of discrimination suffered by few of our fellow countrymen and women. In a democracy it is unacceptable that the majority should oppress the minority”.

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Electricity prices could go up

11th January 2022
BERA CEO - Rose Seretse

Consumers could pay more for electricity this year, as the government owned power producer, Botswana Power Corporation (BPC) plans to increase prices for electricity by 5% with effect from the 1st of April 2022.

BPC recent statement on tariff adjustment shows that with the planned 5% increase in electricity tariffs, electricity prices per kWh could increase by 111 thebe for household users, 226 thebe for government, 148 thebe for commercial businesses and 111 thebe for the mining sector.

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Botswana GDP in upward trajectory as economy recovers

11th January 2022
Peggy Serame & President Masisi

Botswana economy is registering growth as the country emerges from one of its worsts economic recessions since independence, following the outbreak of COVID-19 pandemic.

In late December 2021 Statistics Botswana released the country’s Gross Domestic Product (GDP) figures for the third quarter of 2021.

The nominal GDP for the third quarter of 2021 was P49, 260.5 million compared to P48, 684.0 million registered during the previous quarter. This represents a quarterly increase of 1.2 percent in nominal terms between the two periods.

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