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Court of Appeal decision on novel land applications is a welcome relief

PRIMA FACIE
 

It is not uncommon to meet many Batswana who have been frustrated by a Land Board in one way or the other. Common complaints are about,delays in processing land applications,double allocations,allegations of corrupt allocations to list a few.
 

Land Boards were established in terms of the Tribal Land Act of 1970 Cap 32:02. The Act came into effect on the 30th Of January 1970.Prior to the establishment of Land Boards, communal land (tribal land) was held and administered on behalf of the Tribe by a Chief.
 

The coming into effect of the Tribal Land Act thus vested land control and administration onto Land Boards. Section 10 of the Tribal Land Act is of great significance. It reads as follows “All rights and title to land in each tribal area listed in the first column of the first schedule shall vest in the land board set out in relation to it in the second column of the schedule in trust for the benefit and advantage of the citizens of Botswana and for the purpose of promoting the economic and social development of all the peoples of Botswana”.
 

The effect of this section was to transfer all tribal land control to land Boards.The second effect of the Section was to ensure that every Motswana irrespective of their origin had a right to apply for tribal land in any part of the country.The third and significant effect of the Section was to dress the land board with the power to manage the land for the economic and social development of Botswana.
 

Surprisingly Land Boards are slow to give effect to this Section.The Tribal Land Act makes it easy for a Land Board to achieve this mandate.Section 11 of the Act gives the Land Board authority to consult with the District Council for purposes of the formulation of Policy which would give effect to its mandate.
 

The complaints about the failure of the Land Board to exercise its core function under section 10 were addressed as far back as 2001.Part of Justice Kirby’s speech in Ker & Downey(Botswana) V The Land Tribunal and Another 2001 volume 2 of the Botswana Law Reports is captured as follows  “The Tribal Land Act as a whole is in my judgment designed to promote the fair and equitable distribution of tribal land in Botswana. For example the land is "held in trust for the benefit and advantage of the   citizens of Botswana" (section 10), that is, for all the citizens of Botswana without exception, and customary land grants may be cancelled "to ensure the fair and just distribution of land among the citizens of Botswana" (section 15(c)). I hold that it was also entirely legitimate for the and board to have regard to and give due weight to the fact that the appellant was operating two other sites, while Heart and Soul had none. This also serves to "promote the economic and social development of all the peoples of Botswana" as required by section 10 of the Act.”
 

A common complaint arises out of Land Grants issued following a tender process.Applicants complain of over-reliance on technicalities.Interestingly Kirby addressed this issue in the following terms “The land board is given the discretion by law to grant leases over land which is vested in it. In doing so it is entitled to lay down conditions to be adhered to by persons wishing to apply for leases, whether by tender or otherwise. The Tender Procedures Document commences with the words: "The following are the procedures to be followed by companies wishing to tender for any of the lodge and campsites . . ."
 

It continues as follows:
 

  "This document shows the requirements for allocation, the documents prospective tenderers are required to submit and outlines the allocation process.")The General Guidelines referred to earlier, and supplied with the Tender Procedures, state than:     "The tendering process is subject to the terms, conditions and stipulations as contained in the 'Tendering Procedures ..' which forms part of the documentation issued. Tenderers that do not adhere to these terms, conditions and stipulations will be disqualified." Here it is clearly stated that in the case of the tenderer, non-compliance will be visited by disqualification. The drafters of the procedures intended that they should be obligatory insofar as the tenderer is concerned.
 

The position is entirely different with regard to the land board. The document is stated only to "outline the tender process". Moreover, the document must be interpreted as a whole, and clause 11 of the tender procedures provides that "The    appropriate Land Authority is not bound (the emphasis is mine) to accept the highest land rental offered, the highest scoring technical proposal or any technical proposal or tender . . ."If the land board is not bound to accept any tender, then it retains its unfettered discretion to accept or reject any tender after full consideration of its merits, and clause 8, with its almost formulaic approach can represent no  more than guidelines to be followed in appropriate circumstances.”
 

It is thus important for Land Boards to at all times consider the merits of an application before it.The Court of Appeal has recently expanded on the views expressed in the Ker & Downey case.In Ngwato Land Board V Philimon Autwetse CAHFT-000002-11, the Court emphasised the importance and relevance of Section 10 of the Act.

 

Writing for a unanimous bench made up of Lesetedi JA and Brand JA, Justice Gaongalelwe made the following profound remarks “In terms of the section a Land Board holds land in trust for the benefit and advantage of Batswana and for the purpose of promoting their economic and social development.Every Land Board must learn to accept that with development as envisaged by the section it would be called upon to deal with applications relating to commercial activities of a novel nature never dealt with in the past.

It must accept that with development the young generation would often desire to venture into commercial activities of an enterprising nature.It must always be borne in mind that gone are the days when commercial activities in rural areas and in small villages, in particular, were predominantly confined to general dealers' business,a bar or a bottle store.Failure to keep abreast with society’s ever changing needs would have the undesirable effect of frustrating the would be entrepreneurs who are capable of coming up with ideas that would promote the economic and social development in a particular locality”
 

With this judgement, we have no doubt that the Land Boards have been freed from the shackles of policy.This decision should assist Land Boards to fully achieve their core mandate under the Act.Over-reliance on technicalities and policy are in violation of Section 10 of the Tribal Land Act.The Minister might also have been saved all the trouble of having to explain himself had somebody at Kgatleng Land Board looked up Section 10 of the Tribal Land Act!

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Opinions

Elected officials should guard against personal interest

23rd September 2020

Parliament was this week once again seized with matters that concern them and borders on conflict of interest and abuse of privilege.

The two matters are; review of MPs benefits as well as President Mokgweetsi Masisi’s participation in the bidding for Banyana Farms. For the latter, it should not come as a surprise that President Masisi succeeded in bid.

The President’s business interests have also been in the forefront. While President Masisi is entitled as a citizen to participate in a various businesses in the country or abroad, it is morally deficient for him to participate in a bidding process that is handled by the government he leads. By the virtue of his presidency, Masisi is the head of government and head of State.

Not long ago, former President Festus Mogae suggested that elected officials should consider using blind trust to manage their business interests once they are elected to public office. Though blind trusts are expensive, they are the best way of ensuring confidence in those that serve in public office.

A blind trust is a trust established by the owner (or trustor) giving another party (the trustee) full control of the trust. Blind trusts are often established in situations where individuals want to avoid conflicts of interest between their employment and investments.

The trustee has full discretion over the assets and investments while being charged with managing the assets and any income generated in the trust.

The trustor can terminate the trust, but otherwise exercises no control over the actions taken within the trust and receives no reports from the trustees while the blind trust is in force.

Botswana Democratic Party (BDP) Secretary General, Mpho Balopi, has defended President Masisi’s participation in business and in the Banyana Farms bidding. His contention is that, the practise even obtained during the administration of previous presidents.

The President is the most influential figure in the country. His role is representative and he enjoys a plethora of privileges. He is not an ordinary citizen. The President should therefore be mindful of this fact.

We should as a nation continue to thrive for improvement of our laws with the viewing of enhancing good governance. We should accept perpetuation of certain practices on the bases that they are a norm. MPs are custodians of good governance and they should measure up to the demands of their responsibility.

Parliament should not be spared for its role in countenancing these developments. Parliament is charged with the mandate of making laws and providing oversight, but for them to make laws that are meant solely for their benefits as MPs is unethical and from a governance point of view, wrong.

There have been debates in parliament, some dating from past years, about the benefits of MPs including pension benefits. It is of course self-serving for MPs to be deliberating on their compensation and other benefits.

In the past, we have also contended that MPs are not the right people to discuss their own compensation and there has to be Special Committee set for the purpose. This is a practice in advanced democracies.

By suggesting this, we are not suggesting that MP benefits are in anyway lucrative, but we are saying, an independent body may figure out the best way of handling such issues, and even offer MPs better benefits.

In the United Kingdom for example; since 2009 following a scandal relating to abuse of office, set-up Independent Parliamentary Standards Authority (IPSA)

IPSA is responsible for: setting the level of and paying MPs’ annual salaries; paying the salaries of MPs’ staff; drawing up, reviewing, and administering an MP’s allowance scheme; providing MPs with publicly available and information relating to taxation issues; and determining the procedures for investigations and complaints relating to MPs.

Owing to what has happened in the Parliament of Botswana recently, we now need to have a way of limiting what MPs can do especially when it comes to laws that concern them. We cannot be too trusting as a nation.

MPs can abuse office for their own agendas. There is need to act swiftly to deal with the inherent conflict of interest that arise as a result of our legislative setup. A voice of reason should emerge from Parliament to address this unpleasant situation. This cannot be business as usual.

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Opinions

The Corona Coronation (Part 10)

9th July 2020

Ever heard of a 666-type beast known as Fort Detrick?

Located in the US state of Maryland, about 80 km removed from Washington DC, Fort Detrick houses the US army’s top virus research laboratory. It has been identified as “home to the US Army Medical Research and Materiel Command, with its bio-defense agency, the US Army Medical Research Institute of Infectious Diseases, and  also hosts the National Cancer Institute-Frederick and the National Interagency Confederation for Biological Research and National Interagency Biodefense Campus”.

The 490-hectare campus researches the world’s deadliest pathogens, including Anthrax (in 1944, the Roosevelt administration ordered 1 million anthrax bombs from Fort Detrick), Ebola, smallpox, and … you guessed right: coronaviruses.  The facility, which carries out paid research projects for government agencies (including the CIA), universities and drug companies most of whom owned by the highly sinister military-industrial complex, employs 900 people.

Between 1945 and 1969, the sprawling complex (which has since become the US’s ”bio-defence centre” to put it mildly) was the hub of the US biological weapons programme. It was at Fort Detrick that Project MK Ultra, a top-secret CIA quest to subject   the human mind to routine robotic manipulation, a monstrosity the CIA openly owned up to in a congressional inquisition in 1975, was carried out.  In the consequent experiments, the guinea pigs comprised not only of people of the forgotten corner of America – inmates, prostitutes and the homeless but also prisoners of war and even regular US servicemen.

These unwitting participants underwent up to a 20-year-long ordeal of barbarous experiments involving psychoactive drugs (such as LSD), forced electroshocks, physical and sexual abuses, as well as a myriad of other torments. The experiments not only violated international law, but also the CIA’s own charter which forbids domestic activities. Over 180 doctors and researchers took part in these horrendous experiments and this in a country which touts itself as the most civilised on the globe!

Was the coronavirus actually manufactured at Fort Detrick (like HIV as I shall demonstrate at the appropriate time) and simply tactfully patented to other equally cacodemonic places such as the Wuhan Institute of Virology in China?

THE FORT DETRICK SCIENTISTS’ PROPHECY WAS WELL-INFORMED

 

About two years before the term novel coronavirus became a familiar feature in day-to-day banter, two scientist cryptically served advance warning of its imminence. They were Allison Totura and Sina Bavari, both researchers at Fort Detrick.

The two scientists talked of “novel highly pathogenic coronaviruses that may emerge from animal reservoir hosts”, adding, “These coronaviruses may have the potential to cause devastating pandemics due to unique features in virus biology including rapid viral replication, broad host range, cross-species transmission, person-to-person transmission, and lack of herd immunity in human populations  Associated with novel respiratory syndromes, they move from person-to-person via close contact and can result in high morbidity and mortality caused by the progression to acute respiratory distress syndrome (ARDS).”

All the above constitute some of the documented attributes and characteristics of the virus presently on the loose – the propagator of Covid-19. A recent clinical review of Covid-19 in The Economist seemed to bear out this prognostication when it said, “It is ARDS that sees people rushed to intensive-care units and put on ventilators”. As if sounding forth a veritable prophecy, the two scientists besought governments to start working on counter-measures there and then that could be “effective against such a virus”.

Well, it was not by sheer happenstance that Tortura and Bavari turned out to have been so incredibly and ominously prescient. They had it on good authority, having witnessed at ringside what the virus was capable of in the context of their own laboratory.  The gory scenario they painted for us came not from secondary sources but from the proverbial horse’s mouth folks.

CDC’S RECKLESS ADMISSION

In March this year, Robert Redfield, the US  Director for the Centre for Disease Control and Prevention (CDC),  told the House of Representatives’ Oversight Committee that it had transpired that some members of the American populace  who were certified as having died of influenza  turned out to have harboured the novel coronavirus per posthumous analysis of their tissue.

Redfield was not pressed to elaborate but the message was loud and clear – Covid-19 had been doing the rounds in the US much earlier than it was generally supposed and that the extent to which it was mistaken for flu was by far much more commonplace than was openly admitted. An outspoken Chinese diplomat, Zhao Lijian, seized on this rather casual revelation and insisted that the US disclose further information, exercise transparency on coronavirus cases and provide an explanation to the public.

But that was not all the beef Zhao had with the US. He further charged that the coronavirus was possibly transplanted to China by the US: whether inadvertently or by deliberate design he did not say.  Zhao pointed to the Military World Games of October 2019, in which US army representatives took part, as the context in which the coronavirus irrupted into China. Did the allegation ring hollow or there was a ring of truth to it?

THE BENASSIE FACTOR

The Military World Games, an Olympic-style spectrum of competitive action, are held every four years. The 2019 episode took place in Wuhan, China. The 7th such, the games ran from October 18 to October 27.  The US contingent comprised of 17 teams of over 280 athletes, plus an innumerable other staff members. Altogether, over 9000 athletes from 110 countries were on hand to showcase their athletic mettle in more than 27 sports. All NATO countries were present, with Africa on its part represented by 30 countries who included Botswana, Egypt, Kenya, Zambia, and Zimbabwe.

Besides the singular number of participants, the event notched up a whole array of firsts. One report spelt them out thus: “The first time the games were staged outside of military bases, the first time the games were all held in the same city, the first time an Athletes’ Village was constructed, the first time TV and VR systems were powered by 5G telecom technology, and the first use of all-round volunteer services for each delegation.”

Now, here is the clincher: the location of the guest house for the US team was located in the immediate neighbourhood of the Wuhan Seafood Market, the place the Chinese authorities to this day contend was the diffusion point of the coronavirus. But there is more: according to some reports, the person who allegedly but unwittingly transmitted the virus to the people milling about the market – Patient Zero of Covid-19 – was one Maatie Benassie.

Benassie, 52, is a security officer of Sergeant First Class rank at the Fort Belvoir military base in Virginia and took part in the 50-mile cycling road race in the same competitions. In the final lap, she was accidentally knocked down by a fellow contestant and sustained a fractured rib and a concussion though she soldiered on and completed the race with the agonising adversity.  Inevitably, she saw a bit of time in a local health facility.   According to information dug up by George Webb, an investigative journalist based in Washington DC,     Benassie would later test positive for Covid-19 at the Fort Belvoir Community Hospital.

Incidentally, Benassie apparently passed on the virus to other US soldiers at the games, who were hospitalised right there in China before they were airlifted back to the US. The US government straightaway prohibited the publicising of details on the matter under the time-honoured excuse of “national security interests”, which raised eyebrows as a matter-of-course. As if that was not fishy enough, the US out of the blue tightened Chinese visas to the US at the conclusion of the games.

The rest, as they say, is history: two months later, Covid-19 had taken hold on China territory.  “From that date onwards,” said one report, “one to five new cases were reported each day. By December 15, the total number of infections stood at 27 — the first double-digit daily rise was reported on December 17 — and by December 20, the total number of confirmed cases had reached 60.”

TWO CURIOUS RESEARCH HALTINGS

Is it a coincidence that all the US soldiers who fell ill at the Wuhan games did their preparatory training at the Fort Belvoir military base, only a 15-minutes’  drive from Fort Detrick?

That Fort Detrick is a plain-sight perpetrator of pathogenic evils is evidenced by a number of highly suspicious happenings concerning it. Remember the 2001 anthrax mailing attacks on government and media houses which killed five people right on US territory? The two principal suspects who puzzlingly were never charged, worked as microbiologists at Fort Detrick. Of the two, Bruce Ivins, who was the more culpable, died in 2008 of “suicide”. For “suicide”, read “elimination”, probably because he was in the process of spilling the beans and therefore cast the US government in a stigmatically diabolical light. Indeed, the following year, all research projects at Fort Detrick were suspended on grounds that the institute was “storing pathogens not listed   in its database”. The real truth was likely much more reprehensible.

In 2014, there was a mini local pandemic in the US which killed thousands of people and which the mainstream media were not gutsy enough to report. It arose following the weaponisation at Fort Detrick of the H7N9 virus, prompting the Obama administration to at once declare a moratorium on the research and withdraw funding.

The Trump administration, however, which has a pathological fixation on undoing practically all the good Obama did, reinstated the research under new rigorous guidelines in 2017. But since old habits die hard, the new guidelines were flouted at will, leading to another shutdown of the whole research gamut at the institute in August 2019.  This, nonetheless, was not wholesale as other areas of research, such as experiments to make bird flu more transmissible and which had begun in 2012, proceeded apace. As one commentator pointedly wondered aloud, was it really necessary to study how to make H5N1, which causes a type of bird flu with an eye-popping mortality rate, more transmissible?

Consistent with its character, the CDC was not prepared to furnish particulars upon issuing the cease and desist order, citing “national security reasons”. Could the real reason have been the manufacture of the novel coronavirus courtesy of a tip-off by the more scrupulous scientists?

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Opinions

Masisi faces ultimate test of his presidency

9th July 2020

President Mokgweetsi Masisi may have breathed a huge sigh of relief when he emerged victorious in last year’s 2019 general elections, but the ultimate test of his presidency has only just begun.

From COVID-19 pandemic effects; disenchanted unemployed youth, deteriorating diplomatic relations with neighbouring South Africa as well as emerging instability within the ruling party — Masisi has a lot to resolve in the next few years.

Last week we started an unwanted cold war with Botswana’s main trade partner, South Africa, in what we consider an ill-conceived move. Never, in the history of this country has Botswana shown South Africa a cold shoulder – particularly since the fall of the apartheid regime.

It is without a doubt that our country’s survival depends on having good relations with South Africa. As the Chairperson of African National Congress (ANC), Gwede Mantashe once said, a good relationship between Botswana and South Africa is not optional but necessary.

No matter how aggrieved we feel, we should never engage in a diplomatic war — with due respect to other neighbours— with South Africa. We will never gain anything from starting a diplomatic war with South Africa.

In fact, doing so will imperil our economy, given that majority of businesses in the retail sector and services sector are South African companies.

Former cabinet minister and Phakalane Estates proprietor, David Magang once opined that Botswana’s poor manufacturing sector and importation of more than 80 percent of the foodstuffs from South Africa, effectively renders Botswana a neo-colony of the former.

Magang’s statement may look demeaning, but that is the truth, and all sorts of examples can be produced to support that. Perhaps it is time to realise that as a nation, we are not independent enough to behave the way we do. And for God’s sake, we are a landlocked country!

Recently, the effects of COVID-19 have exposed the fragility of our economy; the devastating pleas of the unemployed and the uncertainty of the future. Botswana’s two mainstay source of income; diamonds and tourism have been hit hard. Going forward, there is a need to chart a new pathway, and surely it is not an easy task.

The ground is becoming fertile for uprisings that are not desirable in any country. That the government has not responded positively to the rising unemployment challenge is the truth, and very soon as a nation we will wake up to this reality.

The magnitude of the problem is so serious that citizens are running out of patience. The government on the other hand has not done much to instil confidence by assuring the populace that there is a plan.

The general feeling is that, not much will change, hence some sections of the society, will try to use other means to ensure that their demands are taken into consideration. Botswana might have enjoyed peace and stability in the past, but there is guarantee that, under the current circumstances, the status quo will be maintained.

It is evident that, increasingly, indigenous citizens are becoming resentful of naturalised and other foreign nationals. Many believe naturalised citizens, especially those of Indian origin, are the major beneficiaries in the economy, while the rest of the society is side-lined.

The resentfulness is likely to intensify going forward. We needed not to be heading in this direction. We needed not to be racist in our approach but when the pleas of the large section of the society are ignored, this is bound to happen.

It is should be the intention of every government that seeks to strive on non-racialism to ensure that there is shared prosperity. Share prosperity is the only way to make people of different races in one society to embrace each other, however, we have failed in this respect.

Masisi’s task goes beyond just delivering jobs and building a nation that we all desire, but he also has an immediate task of achieving stability within his own party. The matter is so serious that, there are threats of defection by a number of MPs, and if he does not arrest this, his government may collapse before completing the five year mandate.

The problems extend to the party itself, where Masisi found himself at war with his Secretary General, Mpho Balopi. The war is not just the fight for Central Committee position, but forms part of the succession plan.

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