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Khama’s powers chopped

Justice Abednigo Tafa of the Lobatse High Court’s judgement has on Thursday effectively steered to a provisional close down of the Court of Appeal sittings – which is revered as the highest decision making structure of the judiciary.


Following the ground breaking judgement, it is understood that CoA President Justice Ian Kirby thereafter confirmed that indeed the Supreme Court has ceased to sit until the constitutional matter is settled. But now there remain questions of who will listen to the Appeal should there be any or what Parliament will do to normalize the situation. There are further questions as to whether the Justices of the Court of Appeal will continue serving during the period of appeal until a final decision is made.


When making the breathtaking ruling, Justice Tafa ordered that the appointment of Judges of Court of Appeal Justices; Stephen Gaongalelwe, Isaac Lesetedi, John Foxcroft, John Cameron, Arthur Hamilton and Craig Howie is “constitutionally invalid.” He also declared section 4 of the Court of Appeal Act as “constitutionally invalid and therefore struck down.” The said section states that: “the Court of Appeal shall, in addition to the judges provided for it under the Constitution, consist of such number of Justices of Appeal as the President of Botswana may consider necessary to appoint.”


The section was consequently struck down as it was seen as incompatible with the constitution section 99 (2). The section 99(2) posits that: “the judges of the Court of Appeal shall be (a) the President of the Court of Appeal; (b) such number, if any, of Justices of Appeal as may be prescribed by Parliament; and 2 of 2002, section 5. (c) the Chief Justice and the other judges of the High Court: Provided that Parliament may make provision for the office of President of the Court of Appeal to be held by the Chief Justice ex-officio.”


According to Tafa, the operation leading to stroking down section 4 of the Court of Appeal Act would be however suspended temporarily. “The operation of order (2) above is hereby suspended for a period of 6 months to allow the relevant authorities to take the necessary steps to ensure that the appointments of the Court of Appeal Judges and all other respondents who have not been re-appointed after the expiry of three year fixed term contracts are regularized,” he said in the judgement while adding that government should bear the costs of the two South African Senior Counsels who have argued the matter from both sides of the two parties in the matter.  


What esteemed local attorneys make of the ruling and its impact?


Martin Dingake of Dingake Law Partners:


According to Dingake the way he interpretes Justice Tafa’s judgement, it means in essence, the Court of Appeal cannot sit while adding that everyone particularly judicial stakeholders are at fault. He started by narrating to Weekend Post that President Khama was wrong to the extent that he appointed Judges of the Court of Appeal contrary to the law. “He can’t determine the number of the Court of Appeal Judges,” he said as a matter of fact.


Dingake continued to point out that, secondly parliament too was in the wrong as they literally abdicated it constitutional responsibility of law making. Thirdly, he also lamented that JSC too blundered to the extent that it made recommendations to the appointment of Judges which contravenes the law. “They ought to have checked the law and accordingly advised themselves.”


The managing attorney at Dingake law Partners also blamed the Attorney General (AG), the then AG Athaliah Molokomme, saying she was ‘off beam’ as she failed to advise herself and as per the obligation she also failed to advise government.
According to Dingake, “the statutory notice ought to have put her on guard.”


Uyapo Ndadi of Ndadi Law Partners:


“The judgement is a hallmark. It does show the significance of separation of powers at all levels of the three tier system. Most importantly, it has shown that the Constitution is supreme and triumphs over any piece of legislation. It is from the Constitution that powers are derived to enable or refuse anything.


Any provision of an Act that goes against the Constitution is vulnerable to attack and liable to be nullified by the court, as it did with Section 4 of the Court of Appeal Act. I am proud of our courts for not shying away from striking down laws that are unconstitutional, not so long ago, Judge Key Dingake struck down a law that permitted children born out of wedlock to be adopted without their fathers consent in all circumstances, even when the father was present in the life of the child.


The judiciary is therefore playing an important part in ensuring that checks and balances are a reality. “I am however not entirely sure whether the court was correct on the issue of renewability of the judges contracts. I found the reasoning by the court difficult to follow and I am inclined to think that the court may be wrong on this score. I was however not involved in this case so I may have to engage further on the issue.”

Tshiamo Rantao of Rantao Kewagamang Attorneys       


“The Botswana High Court (Tafa J.) delivered a groundbreaking judgment in Manual Workers Union vs The President, JSC and Others. It struck down section 4 of the Court of Appeal which gives the President the power to prescribe the number of judges of the Court of Appeal, holding that only parliament is constitutionally empowered to do so. This declaration of invalidity was suspended for 6 months to allow the relevant authority to amend accordingly.


Secondly, the High Court declared as unconstitutional the renewal of three year contracts of the other justices of the CoA. The appointing authority has no powers to renew the 3 year contracts of Justices of Appeal. Lord Abernathy, Lord Hamilton, Howie J. and Foxcroft J. have been effectively disqualified. There is no suspension of this second order. It is therefore effective forthwith. Only the CoA can set this aside.


Interestingly, section 99 (2) b of the Constitution makes the Chief Justice and the other judges of High Court members of the Court of Appeal. My interpretation is that Justices Gaongalelwe, Lesetedi, Foxcroft, Cameron, Hamilton and Howie are entitled to sit once parliament has effectively regularised by way of amendment to section 4 of Court of Appeal Act. It seems that for now only Brand would be entitled to sit.


If the respondents decide to appeal this matter, it would be interesting how the panel to hear and determine the appeal would be constituted. The appeal would require a full bench of 5 judges. The Judge President would not be entitled to sit since he is a member of the Judicial Service Commission which is the 2nd Respondent.


The Judge President may delegate one of the Judges of the High Court or Brand J to empanel a full bench with High Court judges. This means that Tafa J’s judgment is likely to be tested on appeal by his High Court peers generally. Manual Workers Union is likely to object to that, but we have to wait and see. I know of jurisdictions where the High Court’s decision would prevail if it is impossible to constitute an appeals court.


This judgment has far-reaching consequences for the other appeals. For instance, the Law Society and Omphemetse Motumise versus The President and the JSC appeal was argued before a full bench on 16 January 2017. Judgment was reserved to a date to be communicated by the Registrar of the CoA. Two of the five judges who sat have now been disqualified by the Tafa J’s judgment. We will certainly have to take instructions from clients on the implications of that.


This should be very interesting for a student of Constitutional Law and Public Law,” Rantao postulated. Other observers maintains that the case has a chilling effect on constitutionalism and the rule of law in general in Botswana.


The matter was brought to Court by Amalgamated Local Central Government and Parastatal Workers Union (Manual Workers Union) which Tafa agreed had a locus standi to bring the matter before court. They cited as respondents President Lt. Gen. Dr. Seretse Khama Ian Khama, Judicial Service Commission (JSC), the Speaker of the National Assembly Gladys Kokorwe, Attorney General, Justices Elijah Legwaila, Isaac Lesetedi, Stephen Gaongalelwe, John Foxcroft, John Cameron, Arthur Hamilton, and Craig Howie who are High Court Judges as well as that of Court of Appeal.


Manual Workers were represented by Senior Counsel Advocate, Alec Freud from South Africa, together with Mboki Chilisa and Shathani Somolekae while respondents were represented by South African’s Senior Counsel Advocate, Anwar Albertus with Advocate Grant Quixley and Neo Sharp.

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Botswana’s development agenda in jeopardy

21st September 2020
Botswana’s-development-agenda-in-jeopardy--water-construction

Stanbic Bank Botswana Quarterly Economic Review indicates that Botswana will fail to meet some of its Vision 2036 targets, particularly unemployment reduction and reaching high-income status.

The report says this is mainly due to the slow economic growth that the country is currently experiencing. This Quarterly Economic Review focuses on the 2020 Budget Speech.

The first paper reviews the entire budget with its key observations being that this budget is prepared as prescribed by the Public Finance Management Act; the priorities it seeks to address are drawn from Vision 2036 and the eleventh

The 2020 budget Speech, which was the maiden speech by the Minister of Finance and Economic Development, Dr. Thapelo Matsheka, and the first after the 2019 general elections, was delivered to Parliament on the 4th of February 2020.

It has been well received by the labour unions, business community, and the public at large as well as international organisations such as the International Monetary Fund (IMF).

It mainly derived its support from key facets including, emphasis on changing the business-as-usual approach to development; outlining the transformation agenda; fiscal reform that minimizes the negative impact on economic development and human welfare, competiveness and the decision to implement the 2019 negotiated and agreed public sector.

The budget’s progress review shows that economic growth was consistent with the NDP 11 projections, with growth of around 4 percent. At this growth rate, the country would neither ascend to a high-income status nor reduce unemployment towards the Vision 2036 target of a single digit.

Simple calculations of this review confirm that the economy will need to grow the Vision 2036’s target of 6 percent over the next 16 years for per capita income to increase from around USD 8,000.00 to above USD 12,000.00 in current prices.

Further, the population is anticipated to grow by only 2 percent per annum.

For this reason, the focal areas for the forthcoming FY’s budget include measures to increase economic growth towards an average of 6 percent per annum.

Economic diversification is reportedly progressing fairly well. The report says, the share of the non-mining private sector in value added has risen to 66 percent in 2018 from to 63 percent in 2015.

The sectoral pattern of growth showed that the performance of services sector (particularly transport & communications, trade, hotels & restaurants, and finance & business services) has been the silver lining and that of mining sector was subdued whilst the utility sector disappointed.

The drive towards the service sector of the economy, especially to low-productivity activities (tourism, public administration, wholesaling and retailing) does not bode well for the country’s development aspirations.

In the previous versions of this Quarterly Review, it was noted that there is need for the rethinking of economic diversification. Since the country’s domestic market is small, it is inevitable that economic diversification not only focus on broadening the product mix, but also the composition of exports and markets.

This understanding of economic diversification has not been embraced by this year’s budget. Consequently, Botswana’s exports are still overwhelmingly diamonds, which means that the rest of economic sectors are still highly dependent on foreign-exchange earnings from diamonds. Thus, “the transformation programme requires a review of the country’s entire ecosystem”.

The budget review of the economic context also depicts that an economy with positive medium-term prospects, with growth expected to recover to 4.4 percent in 2020 from the expected growth of 36 percent in 2019 largely due to faster growth of services sectors and, thereafter, to slow-down to 4 percent in 2021.

These projected growth rates are comparable to those of the IMF staff’s baseline scenario of 4.2 percent in 2020 and 4 percent in 2021. Thus, the business-as-usual scenario produces growth rates that are still too low to achieve Botswana’s development objectives and create enough jobs to absorb the new entrants into the labour market.

Trade tensions between the two major markets for diamond exports, viz., the United States of America and China, is one of the factors that are cited as contributing to, indeed, undermining not only the domestic growth, but also the fiscal position.

Another notable downside risk to both global and domestic growth is outbreak of the coronavirus in China around January 2020. This has been declared as a global health emergency. In an attempt to contain the spread of the novel coronavirus pneumonia, the Chinese authorities have ordered city lockdowns and extended holidays, of course, at the expense of near- term economic growth, according to the new Stanbic Bank Botswana report.

According to Nomura Holdings Inc., fewer migrant workers returned for work than in previous years and business activities have been slow to pick up. The havoc wreaked by the virus on the world’s second largest economy is likely to spill over to the global economy. In fact, it has resulted in a glut in crude oil and, thereby placed oil markets into a contango, i.e., a market structure where near-term prices trade at a discount to future contracts.

It also presents significant risks one of Botswana’s main drivers of economic growth, diversification and foreign exchange earnings. According to the Financial Times (February 13, 2020), Chinese tourists spent $130 billion overseas in 2018. Regardless of whether the growth materializes, the projected domestic growth rate would not transform the economy to a high-income one.

Progress towards reduction of unemployment, to a target of single digit, and poverty and achieving inclusive growth has also been relatively slow, the Stanbic Bank Botswana Review says.

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OP leases Orapa House

21st September 2020
Orapa House

Ministry of Presidential Affairs, Governance and Public Administration (MOPAGPA) has through the Office of the President (OP) proposed to avail Orapa House for use by private training institutions as well as research institutions involved in the area of technology development.

For a very long time the monumental building located in the heart of the city has been a white elephant, despite government purchasing it for nearly P80 million from De Beers in 2012.

However, government has now identified a productive use for the iconic building. “The overall vision is for the building to be transformed into a hub for digital technology research and development to be carried-out by institutions, such as; Limkokwing University, BIUST, BITRI and other relevant stakeholders.”

The decision was taken as government traverse a new path of transforming the economy from a mineral led economy to a knowledge based economy through the promotion of research and innovation. However, the facility will need major maintenance to be carried-out in order to meet the requirements of the proposed change in use.

“The work will include provision of laboratories, work stations, production areas and seminar rooms; audio visual centre, high speed internet connectivity, exhibition areas and offices,” reads the proposal note for the development.

These developments will be done through the refurbishment and maintenance of the main building, workshop, and ablution block, gate house, parking area, grounds, and access control and security service.

“There will be minimal modifications to the structure as it stands. The project is estimated to cost approximately P50, 000, 000,” says the report. In this regard, it is said, the initial scope of the OP facility will be modified to accommodate the envisaged digital technology research and development hub.

With funds needed to improve the building, OP has requested that; “the 2020/21 annual budget provision for Orapa House will need to be increased by P37,500,000 from P2,500,000 to P40,000,000 to kick start the maintenance works.” Funds will be sourced from the projects that have been delayed due to Covid-19 protocols during the 2020/21 financial year.

The building has been a thorny issue for government for years. Initially, OP was expected to move there but the move never materialised. At one point it was a question of whether the Office of the President and the Ministry of Finance and Economic Development were planning to override a decision by Parliament which rejected the proposal to buy Orapa House under the belief that government may be buying its own property. The building was to be bought at a negotiated cost of P79 million.

Again in 2012, Government had wanted to buy Orapa House for a negotiated P79m but the Finance and Estimates Committee of Parliament had rejected the request because of the inconsistencies realised in the supporting documents of the proposed procurement. The valuation of the building was put at P74 million.

The Ministry of Lands and Housing had initially offered De Beers P73, 000,000 as the purchase price. However, De Beers countered with P85, 000,000. On negotiation and converging of the minds, the selling price was finally agreed at P79, 000,000.

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Sad state of Brigades: dumped and ignored!

21st September 2020
Brigades

Auditor General, Pulane Letebele, has expressed discontentment at the worrying and deteriorating state of brigades in the country.

In an audit inspection which was carried out at Tshwaragano Brigade in Gabane, a number of observations showed weaknesses and shortcomings in the conduct of the financial affairs of the institution.

According to Letebele’s report, former students of the brigade had been engaged to carry out maintenance works on the school premises, comprising of painting, tiling, plumbing and electrical works, which covered the period from July 2017 to June 2018.

Although the agreed maintenance period had elapsed, the works had not been completed because of unavailability of funds and this situation had persisted up till the time of inspection in November 2019.

Auditor General says arrangements should have been made in time for funds to be available to complete these relatively minor works even before the works commenced.

Various contractors had been engaged for clearing the bush and for the supply of concrete stones, pit and river sand and hiring equipment for digging the trench towards the construction of an auto mechanics workshop, the report said.

It stated that the cost of services and supplies provided totalled P117 949.80. However, despite the services and the supplies having been paid for, the construction works had not commenced for a long period afterwards, resulting in the trench filling back in.

The audit inquiries had not elicited satisfactory responses as both the institution and the Ministry had not accepted the responsibility for the project, although orders for the provision for the supplies had been made. For their part, the Ministry had stated that they had sub warranted funds for the purchase of porta cabins.

Letebele indicated that it is therefore confusing that a project which is critical to the functioning of an institution such as this one would commence without a well-defined plan.

Furthermore, the accounting and maintenance of records for the supplies items were not of the standard prescribed by the Supplies Regulations and Procedures in that the supplies ledger cards, the main accounting records for Government assets, were not properly maintained for the recording of receipts and issues.

This had resulted in significant discrepancies between physical and ledger balances, while in other instances the supplies items had not been recorded at all.

The report says 24 of the 91 new computers found in the computer laboratory at Kumakwane ABC campus were not recorded anywhere, as were the other computers in the storeroom which could not be counted due to the disorderly storage conditions.

The institution had entered into a contract agreement with a security company for the provision of security services at Tshwaragano Brigade, ABC and Horticulture campuses at Kumakwane for a 2-year period which ended in June 2018, WeekendPost learnt.

After the contract expired in June 2018, an extension was granted till the 30th September 2018. Since then, there has been no security service coverage for the institution to-date. According to Auditor General, in the face of prevailing crimes, it is of paramount importance that government properties be protected by provision of security services at all times.

At Tlokweng Brigade, it was noted that the kitchen staff were working under difficult conditions as the kitchen facilities and equipment, such as the cold room, tilting pot, food warmers and solar power for hot water were dysfunctional. The kitchen roof was leaking and men’s restrooms was not working. All these need to be brought to a reasonable and functional state of repair.

The kitchen staff should use a purpose-designed Rations Ledger for the recording of receipts and issues of foodstuffs to reflect the usage of those items. As far back as 2014 the Department of Buildings and Engineering Services had found that the house occupied by the bursar was uninhabitable on account of structural defects, the report said.

A site visit during the audit had established that the house was indeed unfit for occupation as there were cracks on the walls, power switches were not working and the roof was leaking. On a sadder note, there were a number of finished items of clothing, such as dresses, shirts, and jackets from students’ practical exercises from the Fashion Design Textiles Workshop.

Auditor General shared her take on this, saying: “I have not been able to ascertain the policy on the disposal of products from these practicals. A trace of 103 green acid-proof overalls which had been purchased in August 2018 had indicated that there was no record of these items having been recorded or issued, nor were they available in stock. I was not able to obtain any explanation for this situation.”

Kgatleng brigade was also audited and inspected by Auditor General who observed that the brigade has 26 institutional houses at Bokaa, both old campus and new campus. Some of these houses are very old and dilapidated, with two declared uninhabitable. The condition of the houses is a clear indication of lack of care and maintenance of these properties.

At the time of the audit, there was no contractor engaged for the provision of security guard services at the new campus, after expiry of the previous one in July 2019.  It is hoped that steps would be taken to safeguard the security of the premises and government properties against any acts of hooliganism.

In August 2019, there was a break-in at the electrical and at the plumbing maintenance workshops and a number of high value items, such as drilling machines, bolt cutters, spanners and cables, were stolen. The break-in and theft were reported to the police.

“However, at the time of writing this report I was not aware of the outcome of the police investigation, nor of any loss report submitted in terms of the Supplies Regulations and Procedures,” Letebele said.

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