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
Mowana Copper Mine in Dukwi will finally pay its former employees a total amount of P23, 789, 984.00 end of this month. For over three years Mowana Copper Mine has been under judicial management. Updating members, Botswana Mine Workers Union (BMWU) Executive Secretary Kitso Phiri this week said the High Court issued an order for the implementation of the compromise scheme of December 9, 2021 and this was to be done within 30 days after court order.
“Therefore payment of benefits under the scheme including those owed to Messina Copper Botswana employees should be effected sometime in January latest end of January 2022,” Kitso said. Kitso also explained that cash settlement will be 30 percent of the total Messina Copper Botswana estate and negotiated estate is $3,233,000 (about P35, 563,000).
Messina Copper was placed under liquidation and was thereafter acquired by Leboam Holdings to operate Mowana Mine. Leboam Holdings struck a deal with the Messina Copper’s liquidator who became a shareholder of Leboam Holdings. Leboam Holdings could not service its debts and its creditors placed it under provisional judicial management on December 18, 2018 and in judicial management on February 28, 2019.
A new company Max Power expressed interest to acquire the mining operations. It offered to take over the Mowana Mine from Leboam Holdings, however, the company had to pay the debts of Leboam including monies owed to Messina Copper, being employees benefits and other debts owed to other creditors.
The monies, were agreed to be paid through a scheme of compromise proposed by Max Power, being a negotiated payment schedule, which was subject to the financial ability of the new owners. “On December 9, 2021, Messina Copper liquidator, called a meeting of creditors, which the BMWU on behalf of its members (former Messina Copper employees) attended, to seek mandate from creditors to proceed with a proposed settlement for Messina Copper on the scheme of compromise. It is important to note that employee benefits are regarded as preferential credit, meaning once a scheme is approved they are paid first.”
A savingram the Ministry of Local Government and Rural Development sent to Town Clerks and Council Secretaries explaining why councilors across the country should not have access to their terminal benefits before end of their term has been revealed.
The contents of the savingram came out in the wake of a war of words between counselors and the Ministry of Local Government and Rural Development. The councilors through the Botswana Association of Local Authorities (BALA) accuse the Ministry of refusing to allow them to have access to their terminal benefits before end of their term.
This has since been denied by the Ministry. In the savingram to town councils and council secretaries across the country, Permanent Secretary in the Ministry of Local Government and Rural Development Molefi Keaja states that, “Kindly be advised that the terminal benefits budget is made during the final year of term of office for Honorable Councilors.” Keaja reminded town clerks and council secretaries that, “The nominal budget Councils make each and every financial year is to cater for events where a Councilor’s term of office ends before the statutory time due to death, resignation or any other reason.”
The savingram also goes into detail about why the government had in the past allowed councilors to have access to their terminal benefits before the end of their term. “Regarding the special dispensation made in the 2014-2019, it should be noted that the advance was granted because at that time there was an approved budget for terminal benefits during the financial year,” explained Keaja. He added that, “Town Clerks/Council Secretaries made discretions depending on the liquidity position of Councils which attracted a lot of audit queries.”
Keaja also revealed that councils across the country were struggling financially and therefore if they were to grant councilors access to their terminal benefits, this could leave their in a dire financial situation. Given the fact that Local Authorities currently have cash flow problems and budgetary constraints, it is not advisable to grant terminal benefits advance as it would only serve to compound the liquidity problems of councils.
It is understood that the Ministry was inundated with calls from some Councils as they sought clarification regarding access to their terminal benefits. The Ministry fears that should councils pay out the terminal benefits this would affect their coffers as the government spends a lot on councilors salaries.
Reports show that apart from elected councilors, the government spends at least P6, 577, 746, 00 on nominated councilors across the country as their monthly salaries. Former Assistant Minister of Local Government and Rural Development, Botlogile Tshireletso once told Parliament that in total there are 113 nominated councilors and their salaries per a year add up to P78, 933,16.00. She added that their projected gratuity is P9, 866,646.00.
A surge in consumer spending is expected to be a key driver of Botswana’s economic recovery, according to recent projections by Fitch Solutions. Fitch Solutions said it forecasts household spending in Botswana to grow by a real rate of 5.9% in 2022.
The bullish Fitch Solutions noted that “This is a considerable deceleration from 9.4% growth estimated in 2021, it comes mainly from the base effects of the contraction of 2.5% recorded in 2020,” adding that, “We project total household spending (in real terms) to reach BWP59.9bn (USD8.8bn) in 2022, increasing from BWP56.5bn (USD8.3bn) in 2021.” According to Fitch Solutions, this is higher than the pre-Covid-19 total household spending (in real terms) of P53.0 billion (USD7.8bn) in 2019 and it indicates a full recovery in consumer spending.
“We forecast real household spending to grow by 5.9% in 2022, decelerating from the estimated growth of 9.4% in 2021. We note that the Covid-19 pandemic and the related restrictions on economic activity resulted in real household spending contracting by 2.5% in 2020, creating a lower base for spending to grow from in 2021 and 2022,” Fitch Solutions says.
Total household spending (in real terms), the agency says, will increase in 2022 when compared to 2021. In 2021 and 2022, total household spending (in real terms) will be above the pre-Covid-19 levels in 2019, indicating a full recovery in consumer spending, says Fitch Solutions. It says as of December 6 2021 (latest data available), 38.4% of people in Botswana have received at least one vaccine dose, while this is relatively low it is higher than Africa average of 11.3%.
“The emergence of new Covid-19 variants such as Omicron, which was first detected in the country in November 2021, poses a downside risk to our outlook for consumer spending, particularly as a large proportion of the country’s population is unvaccinated and this could result in stricter measures being implemented once again,” says Fitch Solutions.
Growth will ease in 2022, Fitch Solution says. “Our forecast for an improvement in consumer spending in Botswana in 2022 is in line with our Country Risk team’s forecast that the economy will grow by a real rate of 5.3% over 2022, from an estimated 12.5% growth in 2021 as the low base effects from 2020 dissipate,” it says.
Fitch Solutions notes that “Our Country Risk team expects private consumption to be the main driver of Botswana’s economic growth in 2022, as disposable incomes and the labour market continue to recover from the impacts of the Covid-19 pandemic.” It says Botswana’s tourism sector has been negatively impacted by the Covid-19 pandemic and the related travel restrictions.
According to Fitch Solutions, “The emergence of the Omicron variant, which was first detected in November 2021, has resulted in travel bans being implemented on Southern African countries such as South Africa, Botswana, Lesotho, Namibia, Zimbabwe and Eswatini. This will further delay the recovery of Botswana’s tourism sector in 2021 and early 2022.” Fitch Solutions, therefore, forecasts Botswana’s tourist arrivals to grow by 81.2% in 2022, from an estimated contraction of 40.3% in 2021.
It notes that the 72.4% contraction in 2020 has created a low base for tourist arrivals to grow from. “The rollout of vaccines in South Africa and its key source markets will aid the recovery of the tourism sector over the coming months and this bodes well for the employment and incomes of people employed in the hospitality industry, particularly restaurants and hotels as well as recreation and culture businesses,” the report says.
Fitch Solutions further notes that with economies reopening, consumers are demanding products that they had little access to over the previous year. However, manufacturers are facing several problems. It says supply chain issues and bottlenecks are resulting in consumer goods shortages, feeding through into supply-side inflation. Fitch Solutions believes the global semiconductor shortage will continue into 2022, putting the pressure on the supply of several consumer goods.
It says the spread of the Delta variant is upending factory production in Asia, disrupting shipping and posing more shocks to the world economy. Similarly, manufacturers are facing shortages of key components and higher raw materials costs, the report says adding that while this is somewhat restricted to consumer goods, there is a high risk that this feeds through into more consumer services over the 2022 year.
“Our global view for a notable recovery in consumer spending relies on the ability of authorities to vaccinate a large enough proportion of their populations and thereby experience a notable drop in Covid-19 infections and a decline in hospitalisation rates,” says Fitch Solutions. Both these factors, it says, will lead to governments gradually lifting restrictions, which will boost consumer confidence and retail sales.
“As of December 6 2021, 38.4% of people in Botswana have received at least one vaccine dose. While this is low, it is higher than the Africa average of 11.3%. The vaccines being administered in Botswana include Pfizer-BioNTech, Sinovac and Johnson & Johnson. We believe that a successful vaccine rollout will aid the country’s consumer spending recovery,” says Fitch Solutions. Therefore, the agency says, “Our forecasts account for risks that are highly likely to play out in 2022, including the easing of government support. However, if other risks start to play out, this may lead to forecast revisions.”