Some members of Ntlo ya Dikgosi (House of chiefs) have called for the utmost holistic review of the Botswana constitution in its entirety to address the current challenges bedevilling the country, and not just trivial face-lift amendments.
The members’ call come at the backdrop of the controversial debate of the constitution (amendment) Bill, 2016 (no. 3 of 2016) which seeks to increase the number of Specially Elected members from 4 to 6. The object of the Bill is also to increase the number of Ministers and Assistant Ministers by 2 each.
When debating the contentious Bill, which was nonetheless passed by a slim vote of 16 to 14 following spirited and robust deliberations, some dikgosi including outspoken Specially Elected Chief, Thabo Maruje II Masunga submitted that the ancient constitution which is still in use as it is, needs a holistic overhaul.
When speaking to WeekendPost shortly after Ntlo ya dikgosi session at the Parliament buildings in Gaborone this week, Maruje asserted that the country should come to a conclusion to look at this constitution “as a whole”.
“The current constitution needs outmost overhaul, we should address this constitution,” he insisted.
Understandably Maruje’s view echoes that of many members of Ntlo ya dikgosi who do not have the courage and confidence to clearly spell it out.
He even suggested that specific areas “they” (some dikgosi) want reviewed include the issue of equity which still has certain challenges. In particular he made reference to the issue of tribes which are recognised by the constitution as major tribes while there is no mention of many other tribes living within the borders of the country.
“That on its own spells out something,” he said adding that “as a Kalanga if a foreigner asks me where I am in the constitution I will be so embarrassed to tell them that I feature in it only in vague language.”
“You know the constitution guards against what might happen, so am saying the issue of equity should be looked at,” he maintained.
In addition the Specially Elected Chief said Botswana has been in a middle income bracket for many years and therefore needs a new constitution that will address current issues affecting the country today.
“Does the constitution still address the issues currently affecting Batswana? Does it still address the issue of Botswana classification of a middle income economy which is not clear it will be for how long?” he asked rhetorically before explaining that, “my view is that Botswana is a mature democracy and there are many issues that are coming out; as much as we are a middle income country it hasn’t translated to betterment of the people,” he stated.
“The understanding is that to forge ahead as a nation we still need to revisit how we are founded pertaining to the supreme document- constitution,” he asserted as he stressed that the holistic review will renew the nations’ aspirations and reflect on what we have achieved as a nation since 1966.
“50 years into our democracy, we have done well and I think we have to appreciate ourselves as a nation. Every Motswana has played a key role in these years. But my view is that 50 years going forward there must be a look at superlative law because there are emerging challenges and they need a new set of dialogue and another set of laws,” he added.
He maintained however that parliament should diligently perform its role of making laws, and playing a watchdog and oversight role, and there should be a separation from the highly powerful executive.
His view is, the constitution must respond to the current challenges and should not be limited by an old constitution as is the case today.
“It is now becoming a limitation, it can’t respond to current situations. It’s a sign that something is not right.”
According to Maruje, something that takes precedence like a constitution cannot be changed willy-nilly but rather wholly.
“The constitution is the blueprint in which Batswana have decided to be governed, but if you change the constitution, it cascades to the governance structure as well. So if you are going to impose 2 more people (Specially elected legislators) we have to soberly ask ourselves if we indeed need this or not,” he further stated.
“I have a serious concern with it because the constitution remains a very important document in the sense that if there is anything that you touch in the constitution there must be a consensus.”
Botswana’s heritage is clearly defined by the constitution including the kgotla system where communities are consulted. Maruje argues that there was no consultation with regards to the review as only the government gazette, which he said only speaks to a certain audience was used. “The kgotla system, dipitso and other forums are there. They can only be strengthened to continue playing their role,” he asserted
“So we should not deny Batswana the power to access information, freedom of information, freedom of association and the freedom to be consulted as they ultimately give a citizen the power to arrive at a particular decision,” he further stressed his point. Constitution should be written in indigenous languages
According to Maruje, we have hidden much knowledge by not writing some crucial documents like the constitution in Setswana,” such documents could have been written in Setswana, Sesarwa, Sekalaka, Sehumbukushu, and any other language spoken in the country.”
“Now we are talking the developments goals which says we should not leave anyone behind, that means we must try to push anyone at the back foot or who are behind the power to self-determination because it influences the way he thinks, acts, and the mental and psychological state. So I think time has come and yes English is our official language, that we can’t change, but equally languages must be able to empower,” he noted.
He also mentioned that the constitution should be included in the education curriculum. “I believe Batswana must be taught the constitution and the ultimate goals so that they can make part of the debate on it and that every Motswana can execute what they think is the right thing or needs to be done as espoused for by the constitution.” Of Kgosi Kgafela and Bogosi Act….
Maruje’s view on Kgosi Kgafela’s issue is that Bogosi be the given role to be part of a society of Botswana and not have political interference nor give power to a minister to de-recognise a Kgosi.
“I still don’t understand how because bogosi plays an oversight role on the overall running affairs of the government. I believe kgosi ke kgosi ka morafhe so morafe must be the one deciding on the fate of the kgosi.”
“Giving the minister the power of authority over other key institutions going forward will be a problem,” he highlighted while maintaining that Bogosi Act also needs to be reviewed.
Is Maruje joining politics?
The vocal member of Ntlo ya Dikgosi, Kgosi Maruje II says he has no intention of joining politics. “this issue has come out so many times and is starting to worry me personally, and now I always have to dispute that am not a member of a certain political party!” he exclaimed.
“Let me put it on record” he further said, “I am not a member of any political party. I don’t have a membership of any political party and I will give you that assignment to go find out.”
He further stated that, “”I can only join politics if Jesus says something. I will wait for that phone call from heaven. If it comes, there will be no question about it because I believe that as a Kgosi God has given me enough grace as not everyone can be a Kgosi.”
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.