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Two Death row inmates acquitted

Two death row inmates have this week escaped the hangman’s noose with a whisker after close to 10 years since their case commenced.

The duo Gagotshwane Ramotlopi and Kabo Ngwako had a sigh of relief when High Court Judge Ranier Busang this week dismissed their case on grounds of lack of sufficient evidence linking them to the murder. In the judgement, delivered on the 28th February 2018, Justice Busang stated that “It is ordered as follows; (that) the accused persons are discharged and acquitted.” It is understood that the two accused persons, Ramotlopi and Ngwako were on the 27th August 2013 charged with the offence of murder contrary to section 202 of the Penal Code (Cap 08:01).

The particulars of the offence state that; “the accused persons, Gagotshwane and Ngwako, on or about the 12th day of August 2009, at Basarwa Lands, Molepolole, in the Kweneng Administrative District of the Republic of Botswana, acting together and in consent murdered Phologo Olefile.” The accused persons it is said in court papers that they pleaded not guilty.

In his judgement, Justice Busang stated that “it is clear that not all that the prosecution lists (in their submissions) are proved facts. Some are conclusions and opinions based on the prosecutor’s interpretation of the facts.” For instance, the Judge highlighted, they (prosecutors) concluded that ‘it was undisputed that it was clear that the bench (of the donkey cart used leading to murder) was one of the items used to assault the deceased’ which is also not a proved fact but an opinion of the prosecutors on what the probabilities are.

“The prosecutors have (also) conveniently omitted other proved fact, namely; shoe prints over-stepped the donkey cart’s tyre marks. The prosecution has not made an attempt to deal with these shoe prints and exclude any link between their owners and the alleged assault on the deceased.” According to the Judge, for the accused persons to be convicted as charged there must be a proof that the deceased’s death was occasioned by their actions, and there must also be evidence excluding other persons or other causes in the demise of the deceased.

The Court of Appeal (CoA), Justice Busang reminisced that they have cautioned that circumstantial evidence be used only when it is necessary and where there are no dangers of convicting the wrong persons when it (CoA) stated that; “it has been said time and again by courts in England and South Africa and Botswana that circumstantial evidence must always be narrowly examined.”

Before drawing the inference of the guilt of an accused from circumstantial evidence, Justice Busang said it is necessary for the court to be sure that there are no co-existing circumstances which would weaken or destroy the inference. He added that the co-existing circumstances that may weaken or destroy the inference are proved facts that are inconsistent with the inference sought to be drawn; and the evidence in this case point to the presence of persons other than the accused at the scene; after the accused persons had left.

“In my view it is not safe to convict a person of murder on the basis of circumstantial evidence, only because the accused person was the last person seen in the company of the deceased. The law requires more than that, and in this case the circumstantial evidence falls short of the threshold, as it does not link the accused persons with the death of the deceased.”

In a free society such as ours, the Judge explained that the people have the right and freedom to associate and acquaint with whomsoever they choose, without fear of being accused of commission of offence by association. He continued: “I have been invited to also draw an adverse inference against the first accused for his failure to testify. For the court to draw such inference there must be prima facie evidence pointing to the guilt of the accused which calls for an answer. In casu there was no evidence sought to be used against them fell far short of what is required.”

How the murder may have occurred

According to the Directorate of Public Prosecutions (DPP) submissions (or prosecutors), the murder started when the deceased (Olefile) left Mmapina Ngwako’s place (mother to Kabo) in the company of the accused persons to buy sugar at Moatlapedi’s place and they were later all spotted at the same place (Moatlapedi’s) drinking shake shake (sorghum beer) until they all left the dwelling at 9pm.

It is understood that they then left in the donkey cart which had a bench which was used when driving a donkey cart, and in the morning the deceased was found lying on the road naked, which is the road to their homestead. The prosecutors stated that the bench that they sat on when driving the donkey cart was found in pieces just by the deceased and it was undisputed that it was clear that the bench was one of the items used to assault the deceased (ending up killing the latter).

The donkey cart was found at Mmapina’s house the following day and it had been taken there by the accused persons, the prosecutors pointed out. The prosecutors further emphasized that “it is probable to conclude that the accused persons are the ones who killed the deceased or that they know the person who killed the deceased. Reasons being that these facts put together point directly to the accused persons that they are the ones who can give a reasonable explanation about the deceased’s death.”

Judge also tears down prosecutors for shabby work and delaying justice

According to the Judge, the record of proceedings from the Magistrate’s court shows that, the accused persons started appearing in court from as far back as 19th August 2009, a week after the alleged murder of the deceased. He said they were granted bail on the 2nd March 2010 and thereafter waited for three and eight months before being committed for trial at the High Court.  

“It took the prosecution four years and fifteen days to charge them, since their arrest. It further took the prosecution another four months and three days between the indictment and committal for trial at the high Court. In the interim the accused persons became frequent guests at the Magistrates Court for mentions and status hearing, at monthly intervals,” the Judge fumed.

He also stressed out that “there is nothing on the record to explain why there was such an inordinate delay in bringing the accused for trial. I also see nothing to justify why accused persons, charged with such a serious offence have had to put up with charges hanging over their heads without being brought trial for more than four years. This state of affairs is intolerable and unacceptable.”

It is a cardinal principle of our criminal justice system that, Justice Busang continued, once a man is charged, he is constitutionally entitled to be prosecuted within a reasonable time. Meanwhile Detective Constable Mpho Lesife, as the investigating officer, gave evidence on the matter, alongside with others.  In the case, Khumoetsile Tirelo from DPP stood in for the State, Unangoni Tema was representing murder accused Ramotlopi while Mooketsi Segaise was on behalf of Ngwako.

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Gov’t reforms public procurement

4th August 2021
-Masisi-Serame

Government is moving swiftly to completely overhaul public procurement — a new Bill has been tabled before Parliament this week by Minister of Finance and Economic Development, Peggy Serame and is scheduled for debate in the coming days of the current parliament sitting. 

Through this Bill the country’s purse bearer seeks to dismantle existing public procurement pieces of legislation, transform, merge and form a new public procurement arrangement. The existing public procurement high command base — the Public Procurement and Asset Disposal Board (PPDB) would cease to exist.

This organisation will transition and assume the reigns of a regulator and oversight authority; the actual procurement; floating of tenders, accepting bids, adjudicating and awarding tenders will be fully taken over by Government departments accounting officers.

Accounting officers are Permanent Secretaries and statutory organisation heads and directors or any person who is responsible for the administration and day-to-day management of the affairs of a procuring entity, and any other person, who may be designated as such by the Minister under the act.

Speaking to this Bill this week, Serame revealed that the current Public Procurement and Asset Disposal arrangement will be merged with the local authority’s procurement Act.

“We will now have procurement under one roof, all overseen by accounting officers, it’s all government money coming from one port,” she said.

Minister Serame explained that PPADB will no longer be player and referee at the same time, with a view to improve efficiency and effectiveness in the regulation and management of public procurement processes.

According to Minister Serame, the new public procurement Act will promote competition among suppliers and contractors, and also provide for the fair, equal and equitable treatment of all suppliers and contractors.

PUBLIC PROCUREMENT REGULATORY AUTHORITY 

Should parliament pass this bill the current Public Procurement and Asset Disposal Board (PPADB) will transition into a new body called Public Procurement Regulatory Authority.

The new Authority will be  mandated with setting standards and practices for the public procurement system, regulate and control the public procurement system, ensure the application of fair, equitable, competitive, transparent, accountable, efficient, non-discriminatory, honest, value for money and public confidence in procurement standards and practices.

Furthermore the Authority will monitor and enforce compliance with the new Act and any relevant law by a procuring entity.

For standardization and  ensuring of world class procurement best practices the Public Procurement Regulatory Authority will  monitor, assess, review and report on the performance of the public procurement system to the Minister and advise on desirable changes, and further issue standardized bidding documents to all procuring entities

This oversight and procurement regulator will conduct periodic inspections of the records and proceedings of a procuring entity to ensure compliance with the Act.

The regulator will institute periodically, in respect of any procurement —a procurement audit during a tender process, a contract audit in the course of execution of an awarded tender, a performance audit after the completion of a contract, and an investigation at any stage of a procurement process.

The Authority will continue to keep and maintain an up-to-date register of contractors, known as the “Contractors’ Register”, in works, services and supplies, or any combination thereof, however classified.

The new Public Procurement Regulatory Authority will be governed by a board of nine (9) non-executive directors appointed by the Minister of Finance and Economic Development.

The Public Procurement Board will be charged with directing the affairs of the Authority. Day to day executive activities of the Public Procurement Authority will be run by a Chief Executive Officer who will be appointed by the Minister on the recommendation of the board.

PROCURING ENTITIES AND ACCOUNTING OFFICERS 

The actual procurement will now be handled by the Accounting Officers who will lead their procuring entities. The entities will consist of the procurement oversight unit, a procurement unit, an ad hoc Evaluation Committee, the user Department; or any other appropriate structure put in place by the Government.

The Accounting Officer will be in charge of establishment of appropriate procurement structures to undertake the procurement functions under the new act, which shall be staffed at an appropriate level in line with the model structure issued by the Public Procurement Regulatory Authority.

The Accounting Officer will also be charged with establishment, as may be prescribed, of a committee within a procuring entity which will oversee procurement activities, establishment, as may be prescribed, of an oversight committee to monitor procurement activities in a procuring entity.

The primary role of the Accounting Officers will be adjudication and award of tenders, including the adjudication of a bid recommendation submitted to him/her through a procurement oversight unit.

The Accounting officer will have powers to cancel a tender process and reject a tender offer at any time prior to entering into a contract, in the manner as may be prescribed, and the Accounting Officer shall not compensate the bidder of a tender that has been cancelled.

Under this proposed Act new set of regulations and guidelines will direct procurement complaints and appeals.

COMPLAINTS & TENDER DISPUTES

A procuring entity  will, after the publication of an award decision — allow a cooling-off period of 10 days in order for the procuring entity to receive and address complaints, if any, from any contractor who is aggrieved by the award decision; and not enter into a contract relating to the award before the expiration of a cooling period.

A contractor who is aggrieved by a breach of any provision of this Act or claims to have suffered or is likely to suffer loss or damages due to a breach of a duty imposed on a procuring entity shall, at the first instance, lodge a complaint before an Accounting Officer for review.

A contractor who lodges a complaint shall have the right to participate in the review proceedings before an Accounting Officer. A contractor who fails to participate in the review proceedings shall be barred from subsequently lodging the same complaint.

Under this proposed Act an Accounting Officer will not entertain a complaint after a contract has entered into force. After considering a complaint and determining that the complaint is a frivolous or vexatious complaint, Accounting Officer shall dismiss such complaint.

Notwithstanding subsection (1), an Accounting Officer may refer a complaint considered and determined to be frivolous or vexatious to the Tribunal for the Tribunal to take any appropriate action as may be prescribed.

An aggrieved person shall submit his or her complaint in writing to an Accounting Officer within 10 days from the date of the publication of an award decision by the Accounting Officer, relating to the complaint.

The Accounting Officer will not entertain a complaint unless it is submitted to him/her within the period referred to under subsection.

A contractor who is aggrieved by a decision of an Accounting Officer may appeal to the Tribunal within 14 days from the date of the decision of the Accounting Officer.

Where a contract has been concluded by a procuring entity, based on an award decision of an Accounting Officer, the contract shall be irrevocable and its execution shall proceed without interruption whether the award decision by the Accounting Officer may in itself remain disputable by a contractor through the Tribunal.

Notwithstanding subsection (5), the Tribunal may suspend and subsequently revoke or terminate the execution of a contract if in the opinion of the Tribunal, sufficient evidence has been adduced to demonstrate that the execution of the contract may cause substantial loss to the public revenue or prejudicially affect public interest.

A complainant who wishes to lodge a complaint shall exhaust the dispute resolution processes provided in this Act before the complainant refers the complaint to a court.

PUBLIC PROCUREMENT TRIBUNAL 

The Tribunal will be a body established independently from Public Procurement Regulatory Authority, and shall constitute retired High Court judges or practicing attorneys who qualify to appoint high court judge.

The Tribunal shall adjudicate over any matter brought before it by a complainant for a breach of any of the provisions of this Act, or any appeal brought in accordance with the provisions of this Act.

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COVID-19 hits hard on BITC

4th August 2021
BITC

The COVID-19 pandemic which weakened world economies had left a devastating impact on Botswana Investment and Trade Centre (BITC) existence in 2020. According to the group’s 2019/2020 Annual Report, Foreign Direct Investment (FDI) was sluggish for the first two quarters at P126 million and P426.96 million respectively. They then took an upward trajectory in Q3 and 4 at P1396 million and P1456 million respectively.

The year closed with a reduced performance at 73% for Q4. According to the financial report, export earnings opened the year at 83% which is approximately P671 million, before dropping to 81% (P1299.55 million). However, Quarter 3 experienced a slight rise in performance to 82%, or P1978.42 million before a drop in performance to close Quarter 4 at P74.9%, which was P2403.91 million.

Even if that is the case, the Centre continued to promote local investors by facilitating for local entrepreneurs to produce and find markets for their products both locally and internationally. The trend for Domestic Investment/Expansions indicated a continual upward performance surge from Quarter 1 through Quarter 4.

In percentage points, performance results reflected opening of 93% performance followed by a dip in performance to 82% Quarter 2, and then an increase to 100% in Quarter 3 and closing performance of 84.2% in Quarter 4.

For this financial year under review, BITC posted solid financial results with a surplus of P872.968, representing a decline from the previous year’s surplus of P13.991.337. The Centre started on track from the beginning of the financial year with successful execution of activities planned for the year.

However, following the subsequent onset of COVID-19 in the last quarter for the financial year, a few of the activities were negatively affected resulting from restricted cross border transfers. The impact is expected to be severe in the following financial year, especially on the Centre’s financial statements, clearly reflecting the negative impact of COVID-19.

In the financial year ended March 2020, BITC received a total subvention of P96.504.860 which represents a 5% decrease from the previous year’s subvention of P101.830.560. the Grant subvention received for the past 5 years has not been constant due to the financial constraints that the government has experienced over the years which prompted for alignment of financial resources to cover the Centre’s strategic imperatives.

For the year under review BITC’s annual FDI capital inflows realised stood at P1.456 billion against an annual target of P2 billion, which is largely attributable to more than expected performance from the Financial Services sector. The total Domestic Investment for the period was P875.5 million against the set stretched target of P952 million. The total number of jobs registered by the organisation during the year under review was 3329, against an annual target of 3340.

BITC ACHIEVEMENTS

Notwithstanding that, BITC realised high level achievements for the year under review. Chief Executive Officer Keletsositse Olebile said facilitated to establish the Selibe-Phikwe citrus project, which has a job creation expectation of 1000 vacancies as well as the expansion of Kromberg and Shubert Company through the allocation of land for construction of 7000 square metres factory to manufacture wire harness for Mercedes Benz, with over 800 jobs expected this year.

Further, the Centre continued to deliver improved investor facilitation services to both local and foreign investors through the Botswana one Stop service centre (BOSSC). “BOSSC houses relevant government departments under one roof to provide prompt, efficient and transparent services to investors. The services offered by this Centre have grown from slightly above 130 applications for government authorisation in 2013 to 752 in the year under review,” said Olebile.

BITC continued to monitor Botswana’s performance in global competitiveness indicators such as the World Bank’s ease of Doing Business Index. “In an endeavour to improve the investor facilitation mechanism in the country, we have motivated for the drafting of a Business Facilitation Law, which will expedite the setting up and operations of businesses in Botswana.”

ECONOMIC DIVERSIFICATION DRIVE

BITC continued to respond to government’s call to stimulate direct investment and growth of local companies by procuring goods and services from locally based manufactures and services providers. The message to promote locals to actively grow the national economy has been driven through campaigns such as ‘PushaBW’ which utilised an Integrated Marketing Communications (IMC) approach. As at March 2020, local purchases constituted 84% (2019:85%) of the total procurement with foreign purchases at 16% (2019:15%).

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Gov’t ignored 2 million doses COVID-19 vaccine pledge 

4th August 2021
DIKOLOTI

The government has reportedly missed out on an opportunity to secure 2 million doses of AstraZeneca, following efforts made by Batswana living in the diaspora to negotiate the deal for their besieged nation. 

The humanitarian gesture spearheaded by Batswana in the diaspora — who say they are concerned by the high mortality rate locally — has not been warmly welcomed at the government enclave.

“We are losing our relatives, friends, and associates. Based on the network we have cultivated over time, we negotiated an offer for Botswana so that the leadership may be aware of the availability. These samaritans engaged directly with the supplier to buy because you ought to be connected for you to secure vaccines right now. It is not the question of having cash power; the demand is high,” one of the negotiators told this publication.

Information received by WeekendPost shows a country leadership that looks somehow lax in engaging the suppliers and has no pressure to procure vaccines – this is evidenced by several correspondences between some ambassadors and the negotiators seen by this publication.

“I am still trying to get the powers that be at home. HE’s (President Mokgweetsi Masisi) mobile is going unanswered. But usually, he will return the call. Grace Muzila (Permanent Secretary- Ministry of Health and Wellness- MoHW) is also not picking the phone. I will keep on calling. So let me get an indication from home before I talk to Jette (AstraZeneca supplier),” a correspondence from one Ambassador to the concerned connected Motswana reads.

This correspondence was the last time between the Ambassador and the facilitator who did not want to be named – arguing that he does not want to appear to be looking for political mileage on the deal.

As a matter of fact, in another conversation, the facilitator, who at one point was a cabinet minister, is quoted saying, “I have no personal benefit sir, it is information I am giving you freely. Our people are dying. I have done my patriotic duty, sir. Let’s try to source the vaccine to immunize our people.”

Desperate attempts to engage with the Ambassador hit a brick wall, with other information suggesting that the higher-ups were not interested in the deal, despite the dire need for vaccine locally.

At the beginning of the virus in 2020 here in Botswana, the same negotiators are the ones who organized donated masks for some Southern African countries.

Different Ambassadors were asked to collect masks, and the Botswana Ambassador in China organized 10,000 NK95 masks. “We do not have to make noise about it; we all have to contribute to assist our people, no political expediency,” he says.

Both the Health Ministry and OP media liaison offices were yet to respond to this publication’s inquiries on the matter despite numerous attempts to engage them.

According to the Presidential Taskforce report, Botswana has administered at least 318,107 doses of COVID vaccines. Assuming every person needs two doses, Botswana is estimated to have vaccinated about 6.9% of her population. Botswana has a population of around 2.5 million people.

The available AstraZeneca doses negotiated for Botswana have since been offered to other countries that demonstrated a desire to buy.

Botswana is currently struggling to immunize the citizenry as a lack of connection globally to convince the manufacturers to prioritize her. In his tours to various health facilities last week to appreciate the vaccine rollout program, President Masisi said the vaccine is costly and scarce. He also revealed how the COVAX facility failed Botswana.

“As third world nations, we poured money into COVAX to buy only to learn that they are tricking us, there is nothing. We now have to look for funds and buy the available vaccines,” Masisi told residents of Ramotswa.

COVAX is a worldwide initiative aimed at equitable access to COVID-19 vaccines directed by Gavi, the Vaccine Alliance, the Coalition for Epidemic Preparedness Innovations (CEPI), and the World Health Organization (WHO).

COVAX coordinates international resources to enable low-to-middle-income countries equitable access to COVID-19 tests, therapies, and vaccines. By 15 July 2020, 165 countries – representing 60% of the human population – had joined COVAX.

As of 11 April 2021, COVAX has delivered 38.5 million doses, falling well short of 100 million promised doses by the end of March 2021. And as of 6 July 2021, 100 million doses have been delivered.

HEALTH MINISTER SAYS NO TO SPUTNIK

Following the AstraZeneca fiasco, the concerned Batswana once again reached out to the Assistant Minister of Health, Sethomo Lelatisitswe, on the prospects of the Russian medication of Sputnik V. The vaccine is currently used by 70 nations worldwide in the fight against the pandemic, and it is one of the first to trial to fight COVID -19.

Like AstraZeneca, the Minister is not keen on the medication, which he admits in one of the exchanges with the negotiators that WHO has cleared it. The main reason why the Minister threw the Sputnik idea into the dustbin is that it “is not registered as yet by Botswana Medical Regulatory Authority (BOMRA).” Further, even saying the manufactures of the drug should come and convince them as authorities why they should procure the vaccine. The Minister could not respond as to whether BOMRA will evaluate the use of Sputnik in Botswana and whether it is possible for them to carry trials here.

SoE IS THE ELEPHANT IN THE ROOM

There is a growing concern from those sourcing assistance from affluent nations, expressing concern over President Masisi’s continued State of public Emergency (SoE). They argue that the Health Ministry’s hands are tied hence unable to make decisions because Masisi is the only man who can take decisions during the State of Emergency. “We can excuse the Health Ministry because decisions are mostly taken at Office of the President (OP). Therefore, if they do not see the need for patriotic assistance, then let it be, but our people are perishing the hurtful thing. We will keep on trying our best from our networks here for our people,” adds the facilitator who is currently in the Middle East.

Last week, Lelatisitswe told parliament that the government expects around 380 000 vaccine doses in the coming months to immunize Batswana. However, the doses are a far cry from what reality dictates on the ground.

 

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