The Attorney General has lost a landmark case in which he was fighting the National Assembly Speaker, Margaret Nasha and challenging the National Assembly Standing Orders on the election of the Speaker and endorsement of the Vice-president. Reports identified President Lt Gen Ian Khama as the main sponsor of the legal battle, a development the AG denied.
Presenting arguments, the Attorney General (AG) argued that a show of hands in voting is implicitly required by the constitution of Botswana, and not expressly set out. The AG posits that voting this way promotes transparency and accountability and is consistent with Commonwealth best practice, a view elaborately refuted by the opposition.
The judge however asked the AG what the Constitutions say in those countries – a question that the AG legal representattive, Chamme, failed to answer expressely, all he could say was that he was not sure. However, the opposition charged that the constitution does not in anywhere in its text dictate that any form of voting that takes place in parliament should be by way of show of hands, further adding that if Parliament had intended that all votes be by show of hands, it would have simply provided so.
“There is no logical reason why the framers of the constitution would require a secret ballot in respect of Specially Elected MPs and then require a show of hands in respect of the vacant positions,” opposition legal representatives said. They further observed that the AG misdirected herself in interpreting the law.
On the urgency of the matter, the AG conceded that on the face of it, there is no urgent need to resolve the application that she has brought but contends that the urgency lies in the consequence that may befall the country if the matter is not urgently resolved.
ON THE SUBJECT OF CONSTITUTIONAL CRISIS The AG further argued that the difference in opinion between Khama and the BDP on one hand and the opposition parties on the other creates a constitutional crisis if there is no judicial determination as to which one of them is correct.
The BDP legal team led by Parks Tafa who was also representing Khama said the matter is urgent as a suspended Parliament paralises other organs.On the previous elections and endorsements, he said mistakes have been done in the past but was quick to point out that ‘this however does not justify that we should leave them unattended and corrected.’
He said the AG as the principal legal advisor of the government is well within her rights to represent either of the arms of government or second any firm on her behalf. He contended that Nasha is no longer the Speaker of the National Assembly saying both the Speaker and Deputy posts are vacant once a proclamation has been issued and cannot be enjoined in the matter.This view was opposed by the two opposition parties who argued that the Speaker only vacates office at the new sitting of Parliament and not session.
Tafa clashed with Justice Walia when he said they have been dragged into the matter by the AG just like any political party but Walia dismissed Tafa’s remark saying the the BDP is actually the one which initiated the move. Tafa later conceded and apologised for trying to derail the court. “Apologies my Lord you are right, we alerted the AG and we obviously see things differently as political parties despite being co-cited as respondents with opposition parties, that is why we are in support of the AG’s case,” Tafa remarked in response.
He argued against the use of secret ballot in parliament saying it is not provided for. He further argued that he has an issue with the new Standing Orders which he said impinge on constitutional provisions. Standing orders, he said, should only regulate the business of parliament. But on the contrary the opposition lawyers argued that the constitution is silent on the type or system of voting to be used and has left that to Parliament to regulate its own affairs, and in this case through Standing Orders.
The opposition made this submitions in brief: “that the application is not urgent as purported by the Attoney General and the BDP, that the Attonery General lacks legal standing to persue the remedies sought in this application, that the application, in so far as it relates to the election of the Speaker and Deputy Speaker is not ripe for adjudication, that the application is fatally defective on account of the failure to join the Clerck of the National Assembly, Speaker and Members of Parliament.”
The AG and the BDP however said the position of Speaker of the National Assembly is vacant as things stand and that the Cleck only carries the administrative duties of Parliament and cannot be enjoined in matters as this one.
On voting, the opposition argued that the secret ballot procedure has been used by both President Lt Gen Ian Khama and the former Vice President, Mompati Merafhe who were both elected using such procedures as well as Patrick balopi and Margaret Nasha.
“No constitutional crises arose following the endorsement of Khama and Merafhe through secret ballot. In fact no issue arose at all in respect of the endorsement of the duo,” argued the opposition parties. They added that the crises only exists in the minds of those who have brought the case to the courts further urging the courts not to allow itself to be brought into political party internal rows.
The opposition dismissed the submision that the case is urgent saying the urgency is self-created. “In so far as the principal complaint relates to the requirement of voting by secret ballots,the urgency,if any,is clearly self created.it is self-created because because the requirement for a secret balot in respect of election of the Speaker and his Deputy, and the endorsement of the vice president, were introduced more than 16 years ago witht he knowledge and assistance of the AG.
Objectively speaking the AG had 16 years to bring an application for a determination on whther the constition prohibits the of Speaker and/her Deputy,and endorsement of the Vice president by secret ballot,” argued the opposition parties’ lawyers.
Opposition lawyers sumitted that matters of great importance should never be determined in haste unless the circumstances dictate so. “A sixteen year delay is not to be overlooked simply because the applicant is the Attorney General.”
They said parliament can’t be suspended everytime when political parties differ on Standing Orders. They added that the framers of the constitution were not stupid to provide for separation of powers and empowered parliament to regulate its own procedures in terms of Section 76 (1) of the constituion without interference from the courts.
The opposition lawyers were of the view that the Attorney General has failed to demonstrate irreparable harm she seeks to forestall through her application. “She has also failed to set out in her founding affidavit what her legal interest in the above matter is. She impermisibly in her replying affidavit, for the first time asserts that she is acting in the public interest.
This raises two issues; firstly whether she can competently bring an application in her own name, without instruction from government or a public officer; and secondly,whether the public has legal standing in respect of the procedure of apponting the Speaker,and her Deputy and endorsing the Vice president”.
They further argued that the AG is only empowered to bring proceedings on behalf of the government or public officer. “Ther is no provision in terms of the State Proceedings Act empowering the ag to institute proceedings on behalf of the public,” argued the opposition.
They further said that in terms of our common law,a person is not entitled to institute legal proceedings to protect the interest of the public or champion the cause of the people. “The general rule is therefore that a complainant cannot act on behalf of others where the only interest he posses is the establishment of the legality of the administrative action,” further argued the opposition legal teams.
In challenging the AG’s public interest argument, the opposition charged that the public has neither the legal interest nor right in respect of the election of Speaker and the Deputy Speaker. “It is a mater that the constitution has left entirely to members of Parliament, and there is no provision for public participation in the process.”
The opposition dismissed the AG and BDP’s arguments of a possibility of a constitutional crises that may arise from the matter saying that the matter is not ripe for constitutional adjudication, “the doctrine of ripeness holds that the busines of a court is generally retrospective;it deals with sitiations or problems that have alrady crystalised,and not with prospective or hypothetical ones.”
The went on to say the last two Speakers have have been elected unopposed, and there is nothing before the court to suggest that there is likely to be a contest for the position of Speaker and Deputy. “It follows that the exercise of the Honourable court ‘s jurisdiction would be highly speculative,” argued the opposition parties.
IS NASHA’S VICTORY TEMPORARY? A visibly concerned and worried Nasha was in court when the drama unfolded. She shook her head in disagreement and nodded in agreement at some of the arguments that were being advanced about her office by all the lawyers.
Nasha may be victorious for now. The former legislator has made it clear that she will fight for the independence of parliament. As the saying goes – the enemy of my enemy is my friend – this may well apply to Nasha and the opposition who spent sleepless nights defending her office and by extension Nasha herself without her sanction. Khama who fell out with Nasha after her hard-hitting and widely publicised autobiography, Madam Speaker Sir! is said to have expressed his revulsion with Nasha saying their working relation is sour.
Following the court’s decision on the matter, observers say the campaign to bring Nasha down will continue. The president and his inner circle is said to be lobbying for Gladys Kokorwe to replace Nasha.
The BDP caucus is said to have discussed the matter at length recently. It is understood that Nasha still has support within the BDP as many believe she was only airing their long held views about Khama’s leadership style and the Independence of Parliament.
Khama however is said to be banking on the new and inexperienced BDP MPs for supports following the defeat of most party stalwarts at the polls. Most of them are yet to be deeply entrenched into the BDP internal affairs and do not have good grasp of the issues and their origings and would not be much interested in ‘the internal politics’according to observers.
With Nasha having won the first round as a result the opposition parties’ victory, her main challenge still remains – will she triumph at the election of Speaker of the National Assembly? Khama looks determined to win the second round which will be staged in Parliament.
Election of Speaker – Commonwealth
Tanzania-elected by a secret ballot innterms of Section 86 (3) of their constition
Namibia-elected by a secret ballot as required by Standing order 7 (e)
Zambia-Standing Order 5 (3) requires voting by secret ballot
Kenya –Standing Order 6.1 requires that the election of Speaker be by secret ballot
Canada –standing order 4 requires that that voting be by secret bballot
Australia- standing order 11 requires that the election of Speaker be by secret ballot
United Kingdom-standing order 1B requires that the voting be by secret ballot
African Union Parliament-Speaker elected by secret ballot
Botswana Football Association (BFA) leadership appears to be bowing down to Nicolas Zakhem’s football pressure. The development comes to the open roughly 24 hours after the Gaborone United director publicly labelled Maclean Letshwiti and his committee failures for deciding to chop five premier league clubs under the pretext of club licensing disqualification.
As early as Wednesday noon, the BFA emergency committee met with one agenda item to discuss the possibility of reinstating the clubs. This publication gathers that the committee saw it fit to pardon the five clubs without entertaining a second thought. The committee even invited the clubs to the meeting, sources say.
Late last month, the five teams were disqualified from playing in the premier league, pending the appeal outcome. The teams are Notwane, Extension Gunners, BR Highlanders, Mogoditshane Fighters, together with Gilport Lions. The immediate decision by BFA follows what Zakhem had said and advised that it was wrong to chop clubs given the COVID-19 situation in the country.
Unbeknownst to BFA leadership, observers stress that Zakhem exerted public pressure and influenced them to change tone without asking. At the meeting, BFA president Maclean Letshwiti, his vices, Marshlow Motlogelwa and Masego Ntshingane, Aryl Ralebala, the Botswana Football League (BFL) chairman, together with Alec Fela, an ordinary member in the now stubborn NEC.
However, the reactive move by the association to reinstate the clubs is highly welcomed in certain quarters, but it also appears to have left a permanent scar, especially at BFL. As things stand, the general feeling on the ground is to oust chairman Ralebala for failing to defend these clubs before the eyes of President Letshwiti.
This publication has intercepted an ongoing petition to unseat Ralebala and his deputies from the BFL board. Strange enough, the signed petition has thus far attracted clubs with household influence in the league itself. GU, Township Rollers, Notwane, Extension Gunners, Police XI are some clubs that have already appended their signatures to have Ralebala removed.
The big clubs are believed to fighting for principle and demand fair governance at BFL. The reality is that these clubs command a large following, and sponsors can always have a say based on their presence.
When approached for clarity, Ralebala said he could not comment on allegations or issues that lack substance. He concedes that he has heard about the rolling petition but is yet to lay his eyes on it. “I have heard about the petition, but I don’t know where it is coming from. I think it is best you ask those who have signed it. My focus is to commence the league and make sure everything is on point,” said Ralebala.
Football observers state that Ralebala, together with Letshwiti, are now faced with a dilemma. Reports coming from Lekidi Football Centre, although yet to be fabricated, are that the big guns lead others to form a parallel structure where they will play on their league. The clubs are angry at their chairman for taking many of the instructions from the BFA boss, and already a general melee is gathering traction that the two must resign as football has lost direction.
Zakhem says, although he supported Letshwiti, he has a sense of duty to stand for the truth. “I knew I supported Letshwiti and his troops, but you see, these guys have lost direction. I have long advised them that chopping clubs like this will cause confusion and delay progress, but they cannot listen. Letshwiti gave BFL autonomy, but I do not know why he is still interfering,” Zakhem said.
You may, by now, have heard about the dark side of the high profile P100 billion case, but wait, there is also the brighter side. Staff Writer AUBREY LUTE explores the positives accruing from the fall of the country’s biggest financial ‘scam-dal’.
A chance to fix the country’s financial record
They have not publicly been saying it, but the state agencies and the President, Dr Mokgweetsi Masisi, have been at pains to explain and rationalise how an amount almost equal to the country’s GPD left the central bank.
Many insiders attributed the country‘s troubled financial status to the case, including the grey-listing, non-compliance and identified deficiencies, some of which were hitting citizens around the globe. Botswana was in 2018 taken aback by FATF news that the country has been listed alongside countries that do not comply with (AML/CFT). The European Union Commission later flagged Botswana in March 2019 for lacking strategic deficiencies in AML/CFT regulations.
A chance to restore the dignity of the law enforcement arms
The case, without a doubt, was a distraction object on the law enforcement agencies, which spent a chunk of their time bickering and finger-pointing. A leaked audio recording exposing the explosive meeting of the law enforcement arms of government, being the Intelligence Services, Corruption and Economic Crimes agency, and the Prosecutions division summed it all.
The case presented a monumental crisis threatening the core of their being. Following these developments, the Presidency, clearly under the influence of a tripartite member, took a spine-chilling decision to disband the DCEC, a move that was saved by the organisation’s founding director- Tymon Katlholo’s bold protest.
The DPP, the Police, and the DCEC staff were used in the process to carry out bizarre instructions, some of which left the state with an egg on its face. Mistrust and backstabbing were the order of the day within the law enforcement agencies, and the P100 billion case was to blame. “Some badly wanted the plot executed while the other side badly wanted it to end to restore sanity,” an insider says.
The source further adds that “if the case did not end soon, it was going to end a lot of people’s relationships and careers because those who refused to carry the insane instructions were seen as sympathisers to former President Ian Khama.” With the case having fallen, these agencies can reflect, reconcile and go back to work.
A chance to fix diplomatic relations…
It was not only South Africa that was accused of Sabotaging Botswana’s prosecutorial goal. The state also accused several countries of refusing or delaying to assist in the process. Of all the nations, only South Africa has decided to take Botswana to task, perhaps on its proximity to Botswana. Others long ignored Botswana’s requests for assistance to the frustration of former DPP deputy director who repeatedly told the courts that they were struggling to get responses from the international community. With the case having fallen, Botswana may get a chance to face her actions, apologise and rectify the promise that lessons have been learnt.
Pressure off the shoulders of those who have to account…
The case did not only affect the law enforcement agencies. All the stakeholders were put in the spotlight to provide answers. The first to bolt out of the circle was the central bank, Moses Pelaelo, who, like DCEC director-general, long declared the case a scam. He told the world that his books were in order and that no money was missing risking his high-paying job.
According to insiders, his superiors, the then Minister of Finance and Development Planning – Dr Matsheka and his subordinate, Dr Wildfred Mandlebe, were only whispering, without success, to the Gods that there is no money missing.
So concerned and under pressure was Dr Sethibe- then the head of the Financial Intelligence Agency- who, like his Ministry supervisors, was engaging in silent screams to warn the powers that be, all in vain. He later jumped the ship to his former employer, the University of Botswana, allegedly to protect his name and career.
At the time of the fall of the case, the DIS and the DPP were at advanced plans to higher American to come and probe the Bank of Botswana’s servers in a move that bankers feared could compromise them further.
The case was bleeding the country’s coffers…
Had it not ended, the case was likely to end up ‘genuinely’ costing the country P100 billion Pula duo to its complexity and challenges. Insiders say sources who had sold the law enforcement agencies some falsified documents were paid handsomely.
Moreover, investigations were costly as they involved the international community and frequent travelling. “We are told there was also motivation for some officers to act abysmally and out of their way,” an insider said.
Lessons leant for public officers…
Public officers are often duty-bound to obey superiors instructions, no matter how irrational. The case was an eye-opener to many public officers that principle pays in the discharge of one’s duty at all times. The professional careers of the P100 billion case conspirators are currently in shambles. And as expected, the influencers, if at all there any, are nowhere to be seen.
Botswana remains on the grey list of the Financial Action Task Force (FATF) and the “black list” of the European Union, a status quo that highlights the country as one of the high-risk jurisdictions to deal with money.
The far-reaching implications of these listings is a compromised Foreign Direct Investment drive for Botswana. In particular, these listings mean investors now have to exercise some caution and restrain when thinking about putting their money in Botswana. On Tuesday, Minister of Finance and Economic Development Peggy Serame said that Botswana could see itself out of the “undesirable listing” by October this year.
Serame called for united and concerted efforts towards liberating Botswana out of this financial noncompliance tag. She said the delisting could be archived by concerted efforts from all stakeholders: players in the financial services sector, non-financial services businesses, regulators, and every individual who deals with transactions.
Botswana is a founding member of the Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG). This regional body subscribes to the Financial Action Task Force (FATF) to combat money laundering and financing of terrorism and proliferation.
One of the membership obligations to ESAAMLG is for Botswana to be peer-reviewed by the other Member States and other international bodies like the World Bank, IMF or FATF. The most recent assessment for Botswana to gauge compliance with the FATF standards was conducted by ESAAMLG in 2016 and culminated with publishing the Mutual Evaluation Report (MER) in 2017.
Following the discussion and adoption by the Task Force and approval of the MER by the Council of Ministers, the country was placed under enhanced follow-up. This led to a one (1) year observation period in which the country was expected to improve its technical compliance (legislative framework) by correcting the deficiencies identified in the MER.
After one year, in October 2018, the Task Force decided that the country was not taking sufficient steps to implement the recommendations made by the assessors in the MER. The Task Force recommended that Botswana be referred to the International Cooperation Review Group (ICRG) for monitoring and potential listing often referred to as the ‘FATF greylisting”.
Following the FATF greylisting, the EU placed Botswana on its list of high-risk third countries, often referred to as the ‘black list.’ In 2018, Botswana and FATF agreed to an Action Plan that had six items with several timelines. In terms of Risk and coordination, Botswana was told to develop and implement a risk-based comprehensive national AML/CFT strategy, assess the risks associated with legal persons, legal arrangements, and NPOs, and operationalize the modernized company registry to obtain and maintain essential information and Ultimate Beneficial Ownership information.
Botswana was further advised to enhance the capacity of the supervisory staff, including by developing risk-based supervision manuals and providing adequate training, implement risk-based AML/CFT supervision and impose sanctions against violations.
Furthermore, Botswana was instructed to improve analysis and dissemination of financial intelligence by the Financial Intelligence Unit, including operationalizing an online Suspicious Transactions Report filing platform and prioritizing high-risk predicate crimes, and enhancing the use of financial intelligence among the relevant law enforcement agencies.
Regarding terrorism financing investigation, Botswana was instructed to develop and implement a Counter Financing of Terrorism Strategy, operationalize the Counter-Terrorism Analysis and Fusion Centre, and ensure the Terrorism Financing investigation capacity of the law enforcement agencies.
In 2018, the 11th Parliament passed 25 pieces and, later, six others related to AML/CFT/CFP. At the just ended Parliamentary session of the 12th Parliament, lawmakers passed the Financial Intelligence (Amendment) Act to address the definition of beneficial ownership.
Cabinet approved the National AML/CFT/CFP Strategy of 2019-2024 in October 2019. At the June 2021 FATF Plenary meetings, the FATF made the initial determination that Botswana had substantially addressed the Action Plan and that this warranted an on-site assessment to verify that the implementation of Botswana’s AML/CFT/CFP reforms is in place and is being sustained. Furthermore, an assessment was to be instituted to check if the necessary political commitment remains to sustain implementation in the future.
Serame said in a televised press briefing that Botswana’s exit from the FATF grey list and the EU black list would be determined by the outcome of the on-site assessment, which will be discussed at the FATF Plenary in October 2021.
She revealed that the Botswana delegation attended the Eastern and Southern Africa Anti-Money Laundering Group 42nd Task Force of Senior Officials meeting from the 26th August to the 6th September 2021, followed by the Council of Ministers on the 7th September 2021.
She told the media that at these meetings, Botswana was commended for making progress in complying with the FATF standards by addressing deficiencies in her AML/CFT/CFP framework. “We are making all these efforts of complying with the FATF standards so that we guard against our financial system being used for money laundering, terrorism financing and proliferation financing,” she said.
“We are hopeful that at the October 2021 FATF Plenary meetings, the outcome of the on-site visit undertaken by the FATF in August 2021 will bear positive results, leading to Botswana being delisted from the FATF greylisting,” she said. However, Minister Serame called on all stakeholders to support the government to remove Botswana from the greylisting.
“As Government continues its efforts of putting in place the necessary legislative and institutional framework, due diligence must be exercised by all institutions, including the ordinary Motswana, so that no one is found dealing with financiers whose credibility is wanting,” she said.
The minister reiterated that all players in the financial services sector had a role to play: “It is important that where unsolicited funds are offered, the individual or entity so receiving the offer must ensure that the funds being offered are not associated with unlawful acts. If we are not diligent, criminals may use unsuspecting people and entities to launder proceeds of crime.”
She reiterated that the government is committed to doing all within its power to remove the country from the FATF “grey list” and the EU “black list”. However, she noted that to achieve that requires the cooperation and assistance of financial institutions, designated non-financial businesses and professions and individuals to ensure full compliance with AML/CFT/CFP rules and regulations.
“These efforts will not only assist us to be removed from these mentioned lists but are for the benefit of our country to maintain a high standard of financial prudence and an economy which genuine investors can have the confidence to invest in,” Serame explained.