Government has once again attracted a penalty, it has been instructed to back pay 5 million pula following a case in which some Botswana Public Employees Union (BOPEU) union members who are employed by Botswana Examinations Council (BEC) are demanding back pays from government.
WeekendPost can reveal that a settlement agreement was reached this week following several court appearances and battles in which the government finally conceded to pay the BEC staff the 5 million pula for the next 18 months. The back pays emanate from a BEC Board “Resolution” which was back stepped by government (BEC) for unclear reasons.
The Board meeting had took a decision to increase staff salaries after finding out about the salary disparities at the organization which warranted deserved back pays as from April 2014 to March 2016. At the time of the court appearance, both parties were in agreement about the said resolution but Acting High Court Judge Justice Zein Kebonang who presided over the matter seemed not settled by the matter and wanted sufficient proof. In light of avoiding extra humiliation the parties resolved their differences amicably to avoid further unnecessary court battles.
The parties then further compiled a settlement agreement in which government appeared to be the biggest loser as they would cough out multi-million payments to the said employees. According to the settlement agreement, signed on 10th May by both parties: “now therefore the parties agree that: pursuant to the Governing Council Resolution of the Respondent (BEC) passed on the 19th of June 2013, the Respondent (BEC/government) shall pay the balance of the salary disparity adjustment for the period between 1st April 2014 to 31st March 2016, but for a maximum period of 18 months.”
In addition, government was also advised that it shall also pay the amount due on or before the 31st of July 2017. It continues: “this agreement constitutes the entire agreement between the parties and each party acknowledges that there are no further agreements not expressly included herein.” The agreement was to remain binding to both the parties immediately upon signature by both of them (which was done on 10 May) and shall operate until it is approved and made an Order of Court.
Speaking to Weekend Post subsequent to the settlement, an attorney representing applicants (BOPEU) in the matter Uyapo Ndadi of Ndadi Law Firm expressed joy as he said the agreement is precisely in their favour and that the union members will be reap fruits of their labour. “I am happy with the outcome and my clients (BOPEU) are happier for they will be reaping the fruits of their labour and will smile all the way to the bank, come end of July,” he highlighted.
The esteemed attorney however expressed discontentment about the “wasteful government” pointing out that it was unnecessary for the matter to end up in court. “I believed in the case from day one and it didn’t have to end up in court as it was totally unnecessary,” he said. “The litigation was waste of tax payer’s money. Officials must be held accountable and liable for the decisions or indecisions they make,” he asserted.
He also added that those who no longer work for BEC but were employees of BEC between the stipulated periods can also come forward and claim. “This includes those who are deceased, their heirs must also claim on their behalf.” Meanwhile, in the heads of arguments, Ndadi narrated that BOPEU had, as far back as 2012, engaged BEC on salary disparities that existed among its staff, and, the talks culminated in BEC engaging consultants by the names Global Consultants and Swicon 360 to review the salary structures of BEC.
He pointed out that “from the Human Resource Committee (HRC) resolutions and recommendations, it is stated that it was observed that most of BEC employees earned salaries below market rate, mainly due to BEC pay practices that made it impossible for any progression to be achieved.”
It is understood that the said HRC report observed that since 2007, majority of BEC employees were on band minima (lowest band) and consequently recommended that such employees should have their salaries raised to band midpoints. It was also recommended that raising the minimum salaries from band minima to band mid points be done over a period of 2 years to minimize the effect that such adjustments may have on the budget without elongating the period required to address these disparities.
According to Ndadi, it was further recommended that in the spirit of fairness and equity, those employees who were not at band minima or band maxima should have their salaries raised by 3%. “On the 19th June 2013, the Governing Council adopted and approved, among other things, recommendations by the HRC. All e-mail was sent to all staff dated 24 June 2013 confirming the approval of the recommendations by HRC.”
He explained that the decision of the Governing Council was to effect on the 1st April 2013, and that letters were issued to all concerned staff evidencing that implementation of the resolution was underway. In 2013, he remembered that all concerned staff was then given half of the increase they were entitled to and the other half was to be effected the following year.
“However those who are entitled to an increase of 3% (as per the resolution that was aimed at achieving fairness and equity) have to date not received their salary increments,” Ndadi asserted, while pointing out that that wa the crux of the matter. He had requested the court that all staff, (present and past) that would have otherwise been entitled to an increase in April 2013, be awarded the increase, up to the time that they left employment or up to the time of their promotion or up to the time they died, whichever might be the case.
“Our view is that the operative words are clear and in that they show that the salaries must be raised over two successive years and not just two years.” The first year that the resolution was in April 2013 and it follows that the second year of implementation ought to have been April 2014, he submitted.
On the other hand however the BEC lawyer Batlhalefi Moeletsi of Moeletsi attorneys argued that both parties agreed that the issue to be determined in the matter is whether the Resolution passed by BEC on the 19th June 2013 entitles employees to back pays or not.
He submitted that it was not in dispute that no agreement was concluded between BOPEU and BEC on the issue of back pays or any issue in respect of the implementation of BEC’s resolution. “In fact, that much is admitted by BOPEU.” Moeletsi said the resolution was a decision of BEC on how it sought to address the problem in its salary structure and nothing more.
“Seeing that the argument on contract is untenable, BOPEU then claims that the consequences of the Resolution were also administrative in that the Resolution was an undertaking to increase salaries. It is submitted that there was no such undertaking to increase salaries,” Moeletsi pointed out. He said the Resolution, was about removing salary disparities, an exercise which could of course lead to an increase in an employee’s salary.
Public Servants should brace themselves for some changes as the government is in an overdrive mode to overhaul the public sector. The government has also set the tone for the looming changes as it has added the public sector to its looming list of major and sweeping reforms.
This is contained in a savingram from the Permanent Secretary to the President (PSP) Emmah Peloetletse’s office showing how the government intends to “take stock” of all reforms in the public sector through the establishment of an inventory. Peloetletse’s savingram addressed to various ministries and the Directorate of Public Service Management (DPSM) reveals that the government is working around the clock to implement some changes in the Public Service.
The savingram reminded Permanent Secretaries of various ministries and DPSM that the public sector reforms unit (PSRU) at the Office of the President is mandated with Coordinating Reforms across the Public Service. “This essentially entails providing the strategic guidance and facilitation in the implementation of reforms across the Public Service. In this endeavour the Unit has in the past with Technical Assistance from European Union developed a template for documenting Reforms in the Public Service and documented ten (10) major reforms across the Public Service,” reads the savingram in part. It added that “The Unit has lately rolled out the Change Management Framework in an effort to facilitate effective and efficient management of change in the Public Service.”
According to the savingram, it has been noted that for a variety of reasons the use of the template for documenting reforms has not been universally used across the Botswana Public Service. It further states that to facilitate the documentation of the reforms it is essential that an inventory of the various reforms across the Public Service (Central Government, Local Government and State Owned Entities) is established.
“By this correspondent we are seeking your assistance in populating the attached template to provide basic information on the various reforms. The PSRU will, through the various Coordination of focal Persons facilitate the full documentation of the reforms once the inventory is established,” the savingram further stated. The copy of the template among others calls on the focal persons to fill out them form under several headings; they include title of reform, start date, reform objectives, reform components, reform components, progress status.
The savingram echoes President Mokgweetsi Masisi’s announcement last year during his state of the nation address that as a nation Botswana has set itself a lofty goal of becoming a high income country by 2036 and has come up with a list of reforms among them digitisation of government infrastructure. He said the path to achieving this goal dictates that, Botswana takes deliberate steps that will transform its institutions; the way Batswana think and the way they act.
“It is with this in mind, that I presented a Reset Agenda in May 2021, with the following priorities: Save Botswana‘s population from COVID-19, by implementing a series of life saving measures that include a successful and timely vaccination programme, Adherence to COVID-19 health protocols remains key and align Botswana Government’s machinery to the Presidential Agenda, to ensure that the national transformation agenda will be embodied in the public service of the day,” said Masisi. He added that, “this will come with significant Government reforms in all public institutions. We need greater agility and responsiveness like never before in the delivery of public services.”
The Presidential COVID-19 Task Force reportedly meddled in the awarding of tenders for COVID-19, a new Public Accounts Committee (PAC) report has revealed.
The Committee expressed concern that it has noted that there are two centres for covid procurement being the Ministry of Health and the Covid Task team in the Office of the President. The report says the Committee questioned the Accounting Officer on why the COVID 19 task team is usurping the powers of the Ministry of Health by engaging in covid procurement when the Ministry of Health is the one which has the experience and mandate of dealing with the pandemic. The report says clarification was also sought on why direct appointment is the preferred method for covid procurement.
“In her response the Accounting Officer stated that the task team was mainly engaged in the procuring of quarantine facilities and was assisting the Ministry of Health due to the heavy workload brought about by the COVID 19 pandemic,” the report says. The report says the Accounting Officer further stated that direct procurement was used because COVID 19 was treated as an emergency and that procurement was mainly from companies that have been traditionally used by the Ministry of Health.
“This however, is not the case as there has been report of new companies being awarded COVID -19 contracts. The use of direct procurement method should only be used in exceptional cases as it’s a non-competitive method which increases the risk of inflated pricing and close relations with particular suppliers to the detriment of others,” the report says.
It says since most covid procurement fell under emergency, there is need for openness and transparency regarding the procurement. The PAC recommended that in order to ensure transparency and accountability all COVID 19 related procurement should be periodically published in the PPADB website giving full details of the companies receiving procurement contracts and the beneficial owners of the companies.
It says with the passage of time the impact of covid is no longer unexpected so direct awards should gradually be abandoned as the medium and long-term needs of the pandemic can now be predicted. “Judgement should be used even during direct awards to ensure that prices are not higher than the market prices,” the report says.
In a related matter, the report says the Central Medical Stores (CMS) was unable to cater for the required quantities of medical supplies with order fulfilments of about 35% resulting in shortages and insufficient drugs to Athlone Hospital and the surrounding clinics. “In his submission the Accounting Officer had indicated that CMS was unable to supply the exact quantities required by the hospital and surrounding clinics due to the fact that supplies from CMS have to be rationed in order to cover other facilities around the country,” says the report.
The committee expressed concern about the inadequate supply of drugs to government facilities which puts the lives of patients at risk due to non- availability of essential supplies. It recommended that the Ministry identifies and prioritise measures that need to be taken to ensure that there is adequate supply of essential medicines which are needed in the public health system.
Meanwhile the report says the Ministry of Health and Wellness coordinates the operations and functions of some institutions which receive government subventions and secondment of staff from the government. These institutions include 10 NGO’s, two mission Hospitals, three mission clinics and two schools of Nursing.
It says in its endeavour to enhance efficiency and effectiveness of government support to NGOs the Ministry of Finance and Economic Development developed some Policy Guidelines for Financial Support to Non- Governmental Organisations. According to the PAC report, the guidelines were meant to ensure that there is consistency, accountability and transparency in administering public funding to NGOs. However, the Ministry of Health did not comply with the very important guidelines.
“The main areas of non-compliance were the following: (i) There was no Evaluation Committee to vet proposals from NGOs, in some instances NGOs had formed part of the evaluation forum when their requests were being considered,” the report says. It says there was continued funding of NGOs even when they failed to submit narrative and financial progress reports; and (iv) Continued funding of NGOs that failed to submit audited financial statements and management letters as required. The Committee expressed concern at the lapses in the administration of grants by the Ministry despite the large sums of public money awarded to these NGOs.
The Kasane Regional Magistrate Court refused this week to rule on whether three Namibians and their Zambian cousin shot dead by members of the Botswana Defence Force (BDF) were in possession of a rifle or not prior to their deaths.
Ruling in favour of the BDF members, Regional Magistrate Taboka Mopipi who presided over the inquest said, “It is acknowledged that no rifle has been produced before court to confirm that indeed the deceased were armed and or that there was indeed a gun shot.” She said the evidence before the court is that search for the rifle(s) that allegedly triggered the gunfire exchange was done by both Namibia and Botswana SCUBA divers and nothing was found. She said when the said search was done, an area of search was demarcated around the scene area which was partly searched due to water animals such as hippos that launched an attack at the area during the search.
“The search was therefore never concluded. This therefore leaves a gap. To that end, the area not extensively searched, the court cannot make a finding whether the rifle in issue was there or not. This is a very crucial piece of evidence,” added Mopipi. She said the joint search did not conclude the exercise and I cannot properly make a finding of fact adding that that the rifle was there as the BDF allege can therefore not be ruled out.
The deceased are Martin Munilweye Nchindo, Ernest Nchindo, Tommy Sinvula Nchindo and Sivula Munyeme. The four deceased persons died on the night of the 5th November 2020, in the waters of the Chobe River (Southern Channel) near Sedudu/Kasikili Island in Botswana. Mopipi said the incident took place at night, in a gloomy atmosphere and that as at the time, movement in that particular area was restricted and or not permitted.
She said it was the evidence of some of the witnesses that the injuries as observed on the four deceased reflected that they were brutally assaulted and or beaten either before or after being shot. “Their evidence gained support from Witness 34, Dr. Bithoma Thotho Amis who observed post mortem on behalf of the families of the deceased and Government of Namibia. This witness however conceded during cross-examination that the injuries as observed have been caused by other contacts and or impacts such as falling and hitting the hard surface of a wooden canoe,” said Mopipi.
She emphasized that inquest proceedings have very serious consequences and therefore, whatever evidence brought before court must be produced by persons of right qualifications particularly the post mortem report which the court has to rely upon. “The qualification of the expert is crucial in determining the credibility of the report. Upon assessment of both experts, I am inclined to adopt the reports from Witness 18, who is a qualified pathologist. A closer look at the other report indicates that the author, Witness 34 is not a qualified pathologist and it is meddled by issues outside an expert opinion,” she said.
Mopipi said reports compiled by a consultant Forensic Pathologist Dr. Kaone Panzirah-Mabaka show the causes of death as follows; Sivula Munyeme, gunshot injury to the chest and extremities, Martin Nchindo, gunshot wound to the abdomen and pelvis, Ernest Nchindo, multiple gunshot injuries to the chest and extremities and Tommy Nchindo, gunshot wound to the chest and abdomen.
“Medical evidence therefore prove conclusively that the four deceased persons died due to gunshots injuries. It is undisputed that the injuries were inflicted by seven (7) members of the Botswana Defence Force; Lieutenant Moreri Kenneth Mphela, Sergeant Ndingisano Nfazo, Sergeant Puisano Pistor Kgokong, Private Mbikiso Tafila, Private Emmanuel Moganetsi Majuta, Private Barulaganyi Rannosang and Private Oromilwe Motlhabi,” said Mopipi.
Mopipi found that there was a gunshot from the direction of the men to the direction of the BDF section. “The BDF members retaliated and returned fire. This was done in accordance with Standard Operation Procedures (SOPs) within the BDF. According to the SOPs, in case a soldier is being fired at, they fire back and do not have to wait for a command,” she said. She added that “The gunfire exchange was brief and after it ceased, they used a torch to light where the men were and established that all the four men were motionless, two in one canoe, one in the other and the other man lying on the edge of the river on the Island.”
She said, “The evidence of the witnesses is that, when they followed the intel, the intent was to conduct an investigation. There was clearly no intent on their part to shoot the deceased, they did that as an act of retaliation.”