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LSB sues Gov’t over Brand, shady court appointments

The Law Society of Botswana (LSB) has made it clear that it was not bluffing when it expressed its intention to challenge the appointment of Justice Brand to the court of Appeal bench along with any “secretive” appointments to the High court and court of Appeal benches. In a perhaps cleverly orchestrated and swift move, the Society served the Attorney General and the Judicial Service Commission with a statutory notice of the lawsuit, a day after LSB chairperson Lawrence Lecha made mention of the intention to challenge Brand’s appointment.

Lecha first spoke about the intention to challenge Brand’s appointment during the opening of this year’s legal year at the Gaborone High court on Tuesday this week. The following day the Society served the Attorney General and the Judicial Service Commission with the statutory notice detailing the intention of the lawsuit. The State President, Lieutenant General Seretse Khama Ian Khama, the Judicial Service Commission (JSC) and the Attorney General will be sued at the expiry of the thirty day statutory notice.
“Please take notice that the above named claimant intends, at the expiry of the thirty days, to launch court proceedings against the President of the Republic of Botswana Lieutenant General Seretse Khama Ian Khama (the “President” and/ or the Judicial Service Commission (“JSC) and /or the Government of the Republic of Botswana for an order in the following terms, an order reviewing and /or setting aside and declaring as unlawful, null and void the appointment of Mr Justice Frederik Daniel Jacobus (Fritz) Brand as the Judge of the court of Appeal,” the notice reads it part.

The LSB would further ask the court to make an order directing and ordering the JSC to provide and or disclose the process followed in identifying and placing before the JSC for appointment the 66 year old Brand.

Alternatively they would ask for an order reviewing and setting aside the decision of the JSC to recommend him for appointment.

Around October last year, 2015, President Khama appointed Brand as the Judge of the court of Appeal. The appointment accordingly followed the recommendation by the JSC and Judge President of the Court of Appeal, Ian Kirby says Brand did not apply for the job, but was rather “invited.”

The main objection however is that Brand’s appointment was clouded by secrecy which is common in the appointment of Judges in the country.

“In making the recommendation, the JSC never placed an advert in the Botswana government Gazette and in fact did not place any notice at all requesting for interested persons to fill the vacant position aforesaid,” LSB stated.

It further stated that, although Brand had started his job, to date, it is unknown as to who exactly negotiated and approached him for appointment.

“The LSB therefore contend that the manner of appointment to such a high Judicial office in a highly secretive and clandestine manner is unlawful and goes against all known rules of transparency in a democratic dispensation and is contrary to law,” it further contended.

The LSB also intends to ask the court to declare that the current system of recommendation for appointment as carried out by the JSC lacks transparency, openness and is irregular and contrary to law and good governance.

They would therefore ask the court to direct the JSC to advertise all or any vacant positions in the court of Appeal and the High court and to conduct interviews in respect thereof before making a recommendation for any appointment of a Judge.

According to LSB Executive Secretary, Tebogo Moipolai, the decision to challenge Brand’s appointment was first made in November, 2015, but due to some tactical legal issues that required to be resolved was revisited in December and again the resolution was confirmed.

“The reasons for the challenge relate to the process of appointment. As with others at the CoA (Court of Appeal) it lacks transparency since there was no advertisement or interview. It is not known to LSB even with a member in the JSC, where and how he was approached and by who,” Moipolai explained.

The other reason for the challenge, Moipolai says, is as stated by the LSB Chairperson, Lecha in his speech, on Tuesday this week before President Khama, Attorney General and the JSC when the High court legal year of 2016 was officially opened at the Gaborone High court.

Lecha had mentioned that, over the years, since as far back as 2006, or earlier, the LSB has advocated for a change in approach to the process of appointment of Judges with very limited success.”

He said although the interpretation of the Constitution was before the court in as far as the appointment of Judges was concerned, he was disappointed that, “whilst this litigation is ongoing, the Judicial Service Commission moves on with the same process that is being challenged. We would have thought that it would be prudent to allow the courts to pronounce on the proper process to follow first, or at best on the side of caution and accept the interpretation suggested by the Society in the interim.”

At the time Lecha was speaking, a Judgment in which the society was challenging the refusal to appoint a local Attorney, Omphemetse Motumise by President Khama was yet to be issued. Khama refused to make the appointment even though Motumise was recommended by the JSC as required by law.

Lecha further added that, “an accepted principle in the dispensation of justice is that the Presiding Officers of courts must reflect the demographics of the society that those courts serve. The Society however notes that this is not the case in the High Court and especially the Court of Appeal where gender, race and age are disproportionate to the demographic position of the country.”

Gov’t reacts to Lecha’s remarks

Lecha’s remarks seemingly rubbed government officials the wrong way and the Ministry of Defence, Justice and Security in particular demanded an apology. The Ministry lamented that the speech contained racist, xenophobic and discriminatory undertones. Even the Judge President of the court of Appeal, Justice Ian Kirby was not amused and expressed the same view as the Ministry. He labelled Lecha’s remarks as “rude”.

Nonetheless the LSB has maintained that it stands by the speech and that it would not apologise.

“It needs to be stated that being a multiracial, multicultural and tolerant nation does not mean as a society we should shy away from publicly dealing with issues simply because they deal with race,” LSB retorted in a press statement that followed.

It further added that, “Any suggestion that it (speech) has racial, xenophobic and discriminatory undertones is either indicative of a serious dearth of knowledge of social sciences or simply mischievous. As said in the speech, in South Africa, the often talked about transformation of the Judiciary which is being championed by the country’s Chief Justice is based on this very same principle and the country has made great strides in that regard whilst Botswana, a much older democracy lags behind.”

Meanwhile Botswana’s Chief Justice, Maruping Dibotelo says his ideal Judiciary has to be well resourced and independent.

“I have committed what remains of my tenure as Chief Justice to ensuring that the Judiciary is properly resourced to enable it to discharge its constitutional mandate,” he stated and added that while he agrees that key Stakeholders in the Justice system must in general work together towards delivery of quality justice, “it should not be interpreted as equating the Judiciary which is an arm of the State, to Departments or Institutions that fall under the Ministry of Defence, Justice and Security because to do so could undermine and cloud the independence of the Judiciary which we continue to guard jealously at all times”.

“The Judiciary is required and must be a strong, impartial, independent and accountable Institution. Independence of the Judiciary is neither an esoteric pronouncement nor a privilege for the conform of Judicial Officers but a right and a practical measure for the benefit of Citizens, in a democratic state such as ours, to ensure that courts are true and genuine arbiters of cases brought before them. Whatever a litigant is standing or position in society we are all deemed equal before the law,” Dibotelo pointed out.

Dibotelo further expressed concern at the growing number of lawsuits against the State President.

“2015 was a turbulent year for the judiciary, a year marked by a litany of litigation against His Excellency the President, The Judicial Service Commission, The Attorney General etc. The litigation not only tested the integrity, strength of our Judiciary, and our commitment to adherence to the Rule of law but on hindsight equally demonstrated public confidence on the judiciary to promptly and adequately address issues brought before it,” he stated.

However the LSB suggests that the Chief Justice “is all talk but no action” because, “there has in the last few years been an unmistakable impression that cases of national importance or significance to Government always find themselves before the same Judges or panel of Judges, be it at the court of Appeal or the High court.”

The Society stressed that the society needs to be placed on record that Forum Shopping is as deplorable as the Chief Justice said in 2014, “Any partial allocation of cases further destroys the credibility of our judiciary.”

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Government ignores nurses’ COVID-19 anxieties

4th August 2021
Nurses

Health workers are at the front line fighting the deadly, contagious COVID-19. These workers have an immense challenge of welfare and government has since turned a blind eye to dares and crushing odds throttling health officers, particularly nurses.

Botswana Nurses Union (BONU) has once more called on government to invest in the country’s nurses and give the nursing profession dignity.

In May 2020, BONU President, Obonolo Rahube said government should, in line with the advocacy of World Health Organisation (WHO) invest more on nurses and midwives, and further advised government to address challenges that nurses are faced with. The proposal was made on International Nurses Day.

At the time, Rahube urged government to provide subsidised accommodation for nurses and midwives as it has emerged that during the fight against the Corona-virus, accommodation for nurses and midwives is very important. Rahube called on government to provide nurses and midwives with 100% medical cover.

He also called on government to introduce risk allowance for nurses and midwives, noting that as frontline workers during the pandemic, they are at high risk. Nurses also demanded Personal Protective Equipment (PPE), a matter which they lost with costs in court. Also critical during the COVID-19 era for health workers, psychological support is what BONU maintains is still lacking.

In the same year (2020), the Union raised a number of other challenges they are being faced with. These challenges, they asserted, make it testing for them to undertake their duties, especially now that COVID-19 has shaken Botswana’s already weak health system.

BONU expressed disappointment at nurses’ pay, nurses who tested positive for COVID-19 at an alarming rate, violence against nurses, nurses’ contracts which were never renewed and a poorly coordinated vaccination plan for health workers.

Clearly, nurses are not only battling the COVID-19 virus, but also government who has since refused to come to the party.

This week once again, BONU tested waters and slammed government with more demands, some of which have turned into an everyday song while COVID-19 continues to kill more nurses.

At a press conference on Tuesday, BONU President Rahube said over 800 nurses have been infected with COVID-19. Of this number, 34 nurses lost their lives due to COVID-19 related infections.

WHO and other health experts say for countries to emerge victorious from the COVID-19 pandemic, they must fast-track the roll out of vaccine. In Botswana, there is no clear explanations of how the vaccination plan is going.

The situation around vaccination is chaotic, and this is evidenced by only 28% of nurses who have been vaccinated. President Mokgweetsi Masisi is also disturbed by the COVAX programme as Botswana vaccines arrive in the country missing, every time.

Debates in Parliament on which vaccine to adopt are failing to conclude, in fact, they never gained energy. Rahube told members of the media that nurses are overworked.

“Shortage of nurses puts those available at risk. Some nurses are on isolation, quarantine and some passed on. Nurses do both testing and contact tracing so they end up working stretched hours, at times from 6am to 10pm. There is no how nurses will be able to deliver while exhausted,” he said.

He further indicated that infection control practitioners are not recognised and deployed appropriately, and some regions have shortage of commodities and supplies such as water resistant gowns (nurses are forced to re-use those availed), masks, gloves, scrubs and uniforms.

Oxygen supply is said to be in shortage, something that mounts COVID-19 deaths.

“Patients lose their lives whilst still awaiting to be put on oxygen. Psychological services are in serious need as nurses continue to lose their significant others, faced with resource constraints and many of them are not vaccinated,” said Rahube.

Accommodation still remains a huge challenge for nurses. BONU President said nurses overcrowd with families and colleagues.

In Kauxwi, four nurses share a single house, in Moshaweng two nurses share a single bedroomed house together with their families, with no electricity yet the village is powered. In Kazungula, there are only two staff houses for 11 nurses and their families.

The union stressed that the Chief Nursing Officer is not coming to the party, and the expectation is that the office should be coordinating all nursing issues at the Health Ministry. Rahube indicated that transfers have been frozen, promotions stalled and they continue to lose nursing posts to other Ministries.

In a number of recommendations, BONU urged government to consider compensation and risk allowance for staff affected by COVID-19 related deaths and those infected. “COVID-19 has been declared an occupational health illness, in essence, the employer should facilitate its occupational health division, and there are lots of occupational health nurses who are wrongly deployed, who could be running such programs at the facilities.”

In regard to vaccinations, BONU underlined that there should be clear information relating to vaccines and they should be made accessible. “Local franchise manufacturing of vaccine could use Botswana Vaccines Institute (BVI) and government should be clear and transparent concerning procurement of vaccines. It should also allow stakeholders with capacities of procuring vaccines to do so.”

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Gov’t reforms public procurement

4th August 2021
-Masisi-Serame

Government is moving swiftly to completely overhaul public procurement — a new Bill has been tabled before Parliament this week by Minister of Finance and Economic Development, Peggy Serame and is scheduled for debate in the coming days of the current parliament sitting. 

Through this Bill the country’s purse bearer seeks to dismantle existing public procurement pieces of legislation, transform, merge and form a new public procurement arrangement. The existing public procurement high command base — the Public Procurement and Asset Disposal Board (PPDB) would cease to exist.

This organisation will transition and assume the reigns of a regulator and oversight authority; the actual procurement; floating of tenders, accepting bids, adjudicating and awarding tenders will be fully taken over by Government departments accounting officers.

Accounting officers are Permanent Secretaries and statutory organisation heads and directors or any person who is responsible for the administration and day-to-day management of the affairs of a procuring entity, and any other person, who may be designated as such by the Minister under the act.

Speaking to this Bill this week, Serame revealed that the current Public Procurement and Asset Disposal arrangement will be merged with the local authority’s procurement Act.

“We will now have procurement under one roof, all overseen by accounting officers, it’s all government money coming from one port,” she said.

Minister Serame explained that PPADB will no longer be player and referee at the same time, with a view to improve efficiency and effectiveness in the regulation and management of public procurement processes.

According to Minister Serame, the new public procurement Act will promote competition among suppliers and contractors, and also provide for the fair, equal and equitable treatment of all suppliers and contractors.

PUBLIC PROCUREMENT REGULATORY AUTHORITY 

Should parliament pass this bill the current Public Procurement and Asset Disposal Board (PPADB) will transition into a new body called Public Procurement Regulatory Authority.

The new Authority will be  mandated with setting standards and practices for the public procurement system, regulate and control the public procurement system, ensure the application of fair, equitable, competitive, transparent, accountable, efficient, non-discriminatory, honest, value for money and public confidence in procurement standards and practices.

Furthermore the Authority will monitor and enforce compliance with the new Act and any relevant law by a procuring entity.

For standardization and  ensuring of world class procurement best practices the Public Procurement Regulatory Authority will  monitor, assess, review and report on the performance of the public procurement system to the Minister and advise on desirable changes, and further issue standardized bidding documents to all procuring entities

This oversight and procurement regulator will conduct periodic inspections of the records and proceedings of a procuring entity to ensure compliance with the Act.

The regulator will institute periodically, in respect of any procurement —a procurement audit during a tender process, a contract audit in the course of execution of an awarded tender, a performance audit after the completion of a contract, and an investigation at any stage of a procurement process.

The Authority will continue to keep and maintain an up-to-date register of contractors, known as the “Contractors’ Register”, in works, services and supplies, or any combination thereof, however classified.

The new Public Procurement Regulatory Authority will be governed by a board of nine (9) non-executive directors appointed by the Minister of Finance and Economic Development.

The Public Procurement Board will be charged with directing the affairs of the Authority. Day to day executive activities of the Public Procurement Authority will be run by a Chief Executive Officer who will be appointed by the Minister on the recommendation of the board.

PROCURING ENTITIES AND ACCOUNTING OFFICERS 

The actual procurement will now be handled by the Accounting Officers who will lead their procuring entities. The entities will consist of the procurement oversight unit, a procurement unit, an ad hoc Evaluation Committee, the user Department; or any other appropriate structure put in place by the Government.

The Accounting Officer will be in charge of establishment of appropriate procurement structures to undertake the procurement functions under the new act, which shall be staffed at an appropriate level in line with the model structure issued by the Public Procurement Regulatory Authority.

The Accounting Officer will also be charged with establishment, as may be prescribed, of a committee within a procuring entity which will oversee procurement activities, establishment, as may be prescribed, of an oversight committee to monitor procurement activities in a procuring entity.

The primary role of the Accounting Officers will be adjudication and award of tenders, including the adjudication of a bid recommendation submitted to him/her through a procurement oversight unit.

The Accounting officer will have powers to cancel a tender process and reject a tender offer at any time prior to entering into a contract, in the manner as may be prescribed, and the Accounting Officer shall not compensate the bidder of a tender that has been cancelled.

Under this proposed Act new set of regulations and guidelines will direct procurement complaints and appeals.

COMPLAINTS & TENDER DISPUTES

A procuring entity  will, after the publication of an award decision — allow a cooling-off period of 10 days in order for the procuring entity to receive and address complaints, if any, from any contractor who is aggrieved by the award decision; and not enter into a contract relating to the award before the expiration of a cooling period.

A contractor who is aggrieved by a breach of any provision of this Act or claims to have suffered or is likely to suffer loss or damages due to a breach of a duty imposed on a procuring entity shall, at the first instance, lodge a complaint before an Accounting Officer for review.

A contractor who lodges a complaint shall have the right to participate in the review proceedings before an Accounting Officer. A contractor who fails to participate in the review proceedings shall be barred from subsequently lodging the same complaint.

Under this proposed Act an Accounting Officer will not entertain a complaint after a contract has entered into force. After considering a complaint and determining that the complaint is a frivolous or vexatious complaint, Accounting Officer shall dismiss such complaint.

Notwithstanding subsection (1), an Accounting Officer may refer a complaint considered and determined to be frivolous or vexatious to the Tribunal for the Tribunal to take any appropriate action as may be prescribed.

An aggrieved person shall submit his or her complaint in writing to an Accounting Officer within 10 days from the date of the publication of an award decision by the Accounting Officer, relating to the complaint.

The Accounting Officer will not entertain a complaint unless it is submitted to him/her within the period referred to under subsection.

A contractor who is aggrieved by a decision of an Accounting Officer may appeal to the Tribunal within 14 days from the date of the decision of the Accounting Officer.

Where a contract has been concluded by a procuring entity, based on an award decision of an Accounting Officer, the contract shall be irrevocable and its execution shall proceed without interruption whether the award decision by the Accounting Officer may in itself remain disputable by a contractor through the Tribunal.

Notwithstanding subsection (5), the Tribunal may suspend and subsequently revoke or terminate the execution of a contract if in the opinion of the Tribunal, sufficient evidence has been adduced to demonstrate that the execution of the contract may cause substantial loss to the public revenue or prejudicially affect public interest.

A complainant who wishes to lodge a complaint shall exhaust the dispute resolution processes provided in this Act before the complainant refers the complaint to a court.

PUBLIC PROCUREMENT TRIBUNAL 

The Tribunal will be a body established independently from Public Procurement Regulatory Authority, and shall constitute retired High Court judges or practicing attorneys who qualify to appoint high court judge.

The Tribunal shall adjudicate over any matter brought before it by a complainant for a breach of any of the provisions of this Act, or any appeal brought in accordance with the provisions of this Act.

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COVID-19 hits hard on BITC

4th August 2021
BITC

The COVID-19 pandemic which weakened world economies had left a devastating impact on Botswana Investment and Trade Centre (BITC) existence in 2020. According to the group’s 2019/2020 Annual Report, Foreign Direct Investment (FDI) was sluggish for the first two quarters at P126 million and P426.96 million respectively. They then took an upward trajectory in Q3 and 4 at P1396 million and P1456 million respectively.

The year closed with a reduced performance at 73% for Q4. According to the financial report, export earnings opened the year at 83% which is approximately P671 million, before dropping to 81% (P1299.55 million). However, Quarter 3 experienced a slight rise in performance to 82%, or P1978.42 million before a drop in performance to close Quarter 4 at P74.9%, which was P2403.91 million.

Even if that is the case, the Centre continued to promote local investors by facilitating for local entrepreneurs to produce and find markets for their products both locally and internationally. The trend for Domestic Investment/Expansions indicated a continual upward performance surge from Quarter 1 through Quarter 4.

In percentage points, performance results reflected opening of 93% performance followed by a dip in performance to 82% Quarter 2, and then an increase to 100% in Quarter 3 and closing performance of 84.2% in Quarter 4.

For this financial year under review, BITC posted solid financial results with a surplus of P872.968, representing a decline from the previous year’s surplus of P13.991.337. The Centre started on track from the beginning of the financial year with successful execution of activities planned for the year.

However, following the subsequent onset of COVID-19 in the last quarter for the financial year, a few of the activities were negatively affected resulting from restricted cross border transfers. The impact is expected to be severe in the following financial year, especially on the Centre’s financial statements, clearly reflecting the negative impact of COVID-19.

In the financial year ended March 2020, BITC received a total subvention of P96.504.860 which represents a 5% decrease from the previous year’s subvention of P101.830.560. the Grant subvention received for the past 5 years has not been constant due to the financial constraints that the government has experienced over the years which prompted for alignment of financial resources to cover the Centre’s strategic imperatives.

For the year under review BITC’s annual FDI capital inflows realised stood at P1.456 billion against an annual target of P2 billion, which is largely attributable to more than expected performance from the Financial Services sector. The total Domestic Investment for the period was P875.5 million against the set stretched target of P952 million. The total number of jobs registered by the organisation during the year under review was 3329, against an annual target of 3340.

BITC ACHIEVEMENTS

Notwithstanding that, BITC realised high level achievements for the year under review. Chief Executive Officer Keletsositse Olebile said facilitated to establish the Selibe-Phikwe citrus project, which has a job creation expectation of 1000 vacancies as well as the expansion of Kromberg and Shubert Company through the allocation of land for construction of 7000 square metres factory to manufacture wire harness for Mercedes Benz, with over 800 jobs expected this year.

Further, the Centre continued to deliver improved investor facilitation services to both local and foreign investors through the Botswana one Stop service centre (BOSSC). “BOSSC houses relevant government departments under one roof to provide prompt, efficient and transparent services to investors. The services offered by this Centre have grown from slightly above 130 applications for government authorisation in 2013 to 752 in the year under review,” said Olebile.

BITC continued to monitor Botswana’s performance in global competitiveness indicators such as the World Bank’s ease of Doing Business Index. “In an endeavour to improve the investor facilitation mechanism in the country, we have motivated for the drafting of a Business Facilitation Law, which will expedite the setting up and operations of businesses in Botswana.”

ECONOMIC DIVERSIFICATION DRIVE

BITC continued to respond to government’s call to stimulate direct investment and growth of local companies by procuring goods and services from locally based manufactures and services providers. The message to promote locals to actively grow the national economy has been driven through campaigns such as ‘PushaBW’ which utilised an Integrated Marketing Communications (IMC) approach. As at March 2020, local purchases constituted 84% (2019:85%) of the total procurement with foreign purchases at 16% (2019:15%).

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