Ruling Botswana Democratic Party (BDP) is working around the clock to undertake “counselling sessions” for its party members who lost the recent primary elections dubbed Bulela Ditswe.
Preliminary indications suggest that most that were trounced are not taking kindly their defeat and are preparing to launch objections at Tsholetsa house. BDP Secretary General Mpho Balopi told WeekendPost in an exclusive interview subsequent to the party press conference this week that they will provide counselling to all the losers.
“We know the losers are in pain. So we are going to take everything into consideration and even offer them counselling losers. We have a process beyond just the Central Committee, from now on if we realize that somebody needs Counselling. There is nothing as bruising as Central committee elections,” Balopi highlighted.
The ruling party SG explained notwithstanding that there was not even a single person who did not make it at the hot heated Tonota Congress who lost the Central committee positions who left the party. “But that’s the most painful of them all because it’s national,” he added to illustrate his point.
“So we strongly believe that the peace that we have been preaching is prevailing, right from the Central Committee,” Balopi emphasised to this publication. For the first time at the party, there are eight Members of Parliament (MP’s) candidates who are unopposed, and that he said, shows that there are is headway being made with regards to attaining tranquillity within the party. “So we will continue and we will not try to be ruthless or harsh regardless of the triviality or the magnitude of the complaints. We will just give it the same level of importance.”
According to Balopi, the just ended 2018 Bulela Ditswe elections were the best they have ever conducted as a party. However the BDP SG pointed out that although so far they have not received any official protest, they continue to hear some people who are rejecting the results. He added: “the Electoral Board is the one that receives the protests, and after receiving the protests they evaluate them and forward to the Central Committee if they have not been able to solve them.”
In a calculated move, Balopi then took a swipe at the losers: “you should ask those people who are making noise that if they won what would they have said. You see they are making noise because they have lost.” He highlighted that “if the proper process was followed, there is absolutely nothing that we can do. You see there are bad losers and good losers. And in between there are those who are objective”.
“If I can tell you, these elections are in no way near any previous ones in terms of problems. The way we have locked in, and being able to isolate the real problems. And it’s very important to understand this.” In unpacking the issue, Balopi said some of the objections are trivial and unreasonable. “Imagine if someone says when the elections results were announced he was not in the school hall where the elections were held to witness them. I mean really? Think about it. Is that a protest? Whose responsibility is it?”
He said however their processes allow that such contestants have representatives sitting there to observe the elections whether they are free and fair throughout. The BDP spokesperson observed that everyone has the right to sit and observe the vote counting before announcing of results takes place and they can as well ask for a recount when dissatisfied. “So how do you just not necessarily agree because you were not there? You need to be accountable for your actions as well,” he pointed out.
On whether the protests will not in a way further divide and polarize the party resulting in the BDP losing the constituencies again, Balopi said: “it will depend on how we handle the protests. As SG I can attest to you that there will be fairness. Whether there is proof that there were some irregularities, they will be attended to in a very objective manner.”
Balopi stated that “if something comes in that does not hold water then it will be demonstrated to that particular person in a manner that is cordial. We will not ridicule you just because you did not follow procedure to complain. This is so because we understand that at the end we want to make sure that the party becomes the winner not the individual. We will adjudicate on case by case and how we do that will also depend on case by case.”
According to Article 13 of the BDP Code of Conduct for candidates in Primary Elections which is on page 51 of the BDP Constitution “the unsuccessful candidates shall consistently demonstrate commitment, loyalty and support to the Party and its candidate, furthermore ensure that their supporters equally demonstrate loyalty and support to the party and its candidate.”
A BDP member in good standing, Shima Monageng who lost to Kabo Morwaeng by 1844 to 2693 votes told WeekendPost this week when contacted that he will offer an official objection at the Tsholetsa house before the seven days ultimatum elapses.
“I have sought advice for course of action following the glaring irregularities at Bulela Ditswe and, I will protest accordingly. I will appeal for an investigation to be done if indeed there were irregularities and if that’s the position of the party then a re-run be considered to avoid disenfranchising democracy,” he highlighted.
Monageng, who was reluctant to speak to this publication to avoid jeopardizing his appeal, stressed that all over the world elections must not be taken for granted because they represent the will of the people. He warned that if such happens, the people (or voters) will react in such a manner that may affect the party and in this case the BDP may be affected adversely.
According to Monageng, the branch Secretary was not impartial and they caught some party members’ red handed distributing membership cards during the election and they did not deny it. He added that some voters were turned down as they did not appear on the voters roll. “Action must be taken appropriately. I cannot bottle my disappointment as I am not fighting my party. This is not the first time as it happened in 2013.”
Meanwhile Monageng also took to social media (Facebook) stating his discontentment: “having stood for BDP primary elections four times in succession at Molepolole South is not a joke! In my posts I am straining myself and simply providing facts as briefly as I can. People should know that we as democrats and members of BDP are not under any bondage. This is democracy. We are members of this great party at our own will, and not forcefully.”
He added, in a move seen to be directed to his rival Morwaeng that “we who are within and have stayed loyal to the party for this long, our voices must be heard and given due consideration. As a liberal person and politician, I do accept positive criticism and variance of views, provided all is done with humility.”
Apart from Monageng, information reaching WeekendPost suggests that in Francistown South, Khumongwana Maoto and Lamodimo Dikomang who were both trounced by Modiri JoJo Lucas are also discontented by the results. Lucas triumphed with 906 votes against Maoto’s 496 as well as Dikomang who only got 306.
In Gantsi North, the same protests are also said to be underway after Greg Losibe was narrowly defeated by John Thiite with 1566 to 1582. When contacted for comment at press time, Losibe said he was in a meeting and could not comment. Another objection expected is from Pelonomi Bantsi who was defeated by Christian Nthuba by 629 to 865 in Gaborone Bonnington South. Bantsi however stated to this publication that he is restrained to offer any comment as he was still consulting on the matter.
In other elections, although not clear at this stage whether they will officially launch objections; Oarabile Ragoeng lost at Molepolole North by 1852 against Gaotlhaetse Matlhabaphiri’s 1869 while Botsalo M Rabogadi trailed behind with 477 votes.
In Jwaneng-Mabutsane, both Dibeela Shobashoba and Amos Johanne were whitewashed by Mephato Reatile. Shobashoba garnered 702 while â€¨Johanne got 666 against Mephato Reatile’s whooping 2206. â€¨â€¨Batlhalefi Leagajang who has since publicly accepted the results was hammered by Mmusi Kgafela by 575 to 1759 votes in Mochudi West. Mogoditshane will be represented by Tshephang Mabaila. Mabaila won with 1227 votes against Patrick Masimolole’s 350, Mogogi Tshiamo’s 390, Kgang Kgang’s 342 and Otisitswe Baolwetse at 80.
In Gabane-Mankgodi, Philip Mokento, Pius Ntwayagae, Joseph Makati, lost to Kagiso Mmusi by 305, 227, and 847 against 2386 votes. In Ramotswa, Lentswe Monare lost by 1102 votes to Lefoko Moagi’s 2275. A political Analyst at the University of Botswana, Leornard Sesa said in view of the objections by BDP members that the party should introspect and consider reviewing Bulela Ditswe and halting it altogether if need be. “They need to introspect. In 2013 there were also a lot of complaints. The number of independent candidates was high.”
According to Sesa, this shows that Bulela Ditswe problems are far from over.
He stated that BDP members should not conduct these elections as there is unfairness and favouritism. “They should look for independent organizations or people to conduct the primary elections and not the party members who have proved to sway elections in favour of their friends and close associates at the expense of other contesters.”
This system of Bulela Ditswe, the political analyst said, leads to some disgruntled members often giving up when their appeal is not considered, ultimately leaving the party to join the opposition. “That is why the BDP popular vote has been dwindling; it sterms from the primary Elections,” he concluded.
In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy.
The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.
However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world. The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.
Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.
“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.
The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)
Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.
“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.
“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.
“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.
“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”
The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.
For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.
In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.
According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.
In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled. Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.
Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects. During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies. Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).
A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination. The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.
The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.
Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.
He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful. Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.
But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB. FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.
Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.
Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB. “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.
The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).
FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders. Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.
In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.
But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings. “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.
FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries). The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?
“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.
“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.
He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”
“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.
Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.