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Families of Police helicopter crash victims sue

The families of  three Police officers who tragically perished in an aircraft crash in the Gumare/Maun area in April 2014, have taken the former employer, Botswana Police Service (BPS) to court seeking orders for the release of the detailed report of the crash.

In papers before the Lobatse High Court, the three families seek the court to compel the BPS to release the report on the premise of legitimate expectation owing to its assurance to avail the report in a letter dated 9th May 2014. The letter signed off by one G. Bontseng tersely states that, “Investigations are on-going to determine the cause of the accident. Relatives would be issued with a Police Report after investigations are concluded.”

Almost two years on, the families have not received the report and they are demanding it on the basis that, as members of the deceased officers, they deserve to know the cause of the accident in question so that they may find closure and advise themselves as far as their rights are concerned.

They continue to state that they seek materials relating to the aircraft crash of A350 Euro-copter bearing call sign BPS 02 including all statements taken from persons by accident investigators in the course of their investigations. Their request for orders also include the release of all cockpit voice recordings and transcripts from such recordings of the aircraft, from the 20th April 2014 to the date of the accident as well as all communications between persons who were involved in the operation of the same aircraft from 20thApril 2014 to the date of the accident inter alia air traffic control and radar communications.

They also seek the court to compel BPS to release all the opinions expressed in the analysis of information including the flight recorder information as well as all the piloting crew’s licenses indicating both aircraft type and class ratings, recency and currency requirements, whether they had night and instrument flying ratings, qualifications, most recent aviation medical certificates and record of fitness, performance and or capabilities under the circumstances in terms of Section 48 of the civil Aviation Act.

The families represented by attorney Malcom Gobhoza, also want Civil Aviation Authority of Botswana (CAAB) to release all meteorological records of Gumare to Maun (Okavango Delta region) from the 19th April 2014 up to 24th April 2014, service records of the aircraft including latest compass swing report, certificate of airworthiness and registration of the aircraft as well as records of flight plan of the crashed aircraft for the date of 20th April 2014.

However Advocate Charles Gulubane representing Botswana Police Service submitted that even though the families do not expressly and specifically state, what they are matter of factly seeking is a pre-litigation discovery of documents that may be used for future litigation and wish for the families’ application to collapse since there is no pending litigation between the parties.

He also continues that the rules of court do not provide for such discovery and that the documents sought by the three families are considered privileged documents and therefore not subject to disclosure.

Civil Aviation Authority of Botswana also states that while it has a role in its founding Act to provide specified aviation meteorological services through the National Meteorological Service to all aircrafts, it does not provide for the preparation and dissemination of reports to third parties. It also states that its founding Act only provides for the issuing of certificates of airworthiness and registration of aircrafts, but not dissemination of records to the public.

CAAB continues to counter that the Minister of Transport and Communications may make regulations pertaining to air routes and that person operating aircrafts are obliged to the authorized air routes and that it is mandated in the Act to issue a certificate of approval to service providers undertaking maintenance on aircrafts but it is not stated that it bears the responsibility to collate and disseminate information and records to any third party of the public.

In his oral presentation before Justice Abednico Tafa, Gulubane continued to state that it was the discretion of the pilot who was piloting the tragic aircraft to assess the weather condition before take-off. He added that the case only constitutes a ‘fishing expedition as the applicants want a search warrant of a civil nature’ and it is not the role of the court to assist people who want to sue in building a case. He continued that a police report is privileged dossier which cannot be freed for persons to take home and just go over it.

Gobhoza also reiterated that the families only want the privileged report for purposes of closure and that other materials are not being sought for purposes of apportioning blame.

Botswana police Superintendents, Keokeditswe Sobatha, Ricardo Mabotho and assistant superintendent Shepherd Ntobedzi were killed when a helicopter they were piloting crashed on 20th of April 2014 in the Gumare/Maun wilderness on an anti-poaching mission.

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Major public services shake-up looms

24th January 2022
Emmah

Public Servants should brace themselves for some changes as the government is in an overdrive mode to overhaul the public sector. The government has also set the tone for the looming changes as it has added the public sector to its looming list of major and sweeping reforms.

This is contained in a savingram from the Permanent Secretary to the President (PSP) Emmah Peloetletse’s office showing how the government intends to “take stock” of all reforms in the public sector through the establishment of an inventory.  Peloetletse’s savingram addressed to various ministries and the Directorate of Public Service Management (DPSM) reveals that the government is working around the clock to implement some changes in the Public Service.

The savingram reminded Permanent Secretaries of various ministries and DPSM that the public sector reforms unit (PSRU) at the Office of the President is mandated with Coordinating Reforms across the Public Service.  “This essentially entails providing the strategic guidance and facilitation in the implementation of reforms across the Public Service. In this endeavour the Unit has in the past with Technical Assistance from European Union developed a template for documenting Reforms in the Public Service and documented ten (10) major reforms across the Public Service,” reads the savingram in part. It added that “The Unit has lately rolled out the Change Management Framework in an effort to facilitate effective and efficient management of change in the Public Service.”

According to the savingram, it has been noted that for a variety of reasons the use of the template for documenting reforms has not been universally used across the Botswana Public Service.  It further states that to facilitate the documentation of the reforms it is essential that an inventory of the various reforms across the Public Service (Central Government, Local Government and State Owned Entities) is established.

“By this correspondent we are seeking your assistance in populating the attached template to provide basic information on the various reforms. The PSRU will, through the various Coordination of focal Persons facilitate the full documentation of the reforms once the inventory is established,” the savingram further stated. The copy of the template among others calls on the focal persons to fill out them form under several headings; they include title of reform, start date, reform objectives, reform components, reform components, progress status.

The savingram echoes President Mokgweetsi Masisi’s announcement last year during his state of the nation address that as a nation Botswana has set itself a lofty goal of becoming a high income country by 2036 and has come up with a list of reforms among them digitisation of government infrastructure. He said the path to achieving this goal dictates that, Botswana takes deliberate steps that will transform its institutions; the way Batswana think and the way they act.

“It is with this in mind, that I presented a Reset Agenda in May 2021, with the following priorities: Save Botswana‘s population from COVID-19, by implementing a series of life saving measures that include a successful and timely vaccination programme, Adherence to COVID-19 health protocols remains key and align Botswana Government’s machinery to the Presidential Agenda, to ensure that the national transformation agenda will be embodied in the public service of the day,” said Masisi. He added that, “this will come with significant Government reforms in all public institutions. We need greater agility and responsiveness like never before in the delivery of public services.”

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Covid-19 Task Force meddled in tenders-report

24th January 2022
Dr. Kereng Masupu

The Presidential COVID-19 Task Force reportedly meddled in the awarding of tenders for COVID-19, a new Public Accounts Committee (PAC) report has revealed.

The Committee expressed concern that it has noted that there are two centres for covid procurement being the Ministry of Health and the Covid Task team in the Office of the President. The report says the Committee questioned the Accounting Officer on why the COVID 19 task team is usurping the powers of the Ministry of Health by engaging in covid procurement when the Ministry of Health is the one which has the experience and mandate of dealing with the pandemic. The report says clarification was also sought on why direct appointment is the preferred method for covid procurement.

“In her response the Accounting Officer stated that the task team was mainly engaged in the procuring of quarantine facilities and was assisting the Ministry of Health due to the heavy workload brought about by the COVID 19 pandemic,” the report says. The report says the Accounting Officer further stated that direct procurement was used because COVID 19 was treated as an emergency and that procurement was mainly from companies that have been traditionally used by the Ministry of Health.

“This however, is not the case as there has been report of new companies being awarded COVID -19 contracts. The use of direct procurement method should only be used in exceptional cases as it’s a non-competitive method which increases the risk of inflated pricing and close relations with particular suppliers to the detriment of others,” the report says.

It says since most covid procurement fell under emergency, there is need for openness and transparency regarding the procurement.  The PAC recommended that in order to ensure transparency and accountability all COVID 19 related procurement should be periodically published in the PPADB website giving full details of the companies receiving procurement contracts and the beneficial owners of the companies.

It says with the passage of time the impact of covid is no longer unexpected so direct awards should gradually be abandoned as the medium and long-term needs of the pandemic can now be predicted. “Judgement should be used even during direct awards to ensure that prices are not higher than the market prices,” the report says.

In a related matter, the report says the Central Medical Stores (CMS) was unable to cater for the required quantities of medical supplies with order fulfilments of about 35% resulting in shortages and insufficient drugs to Athlone Hospital and the surrounding clinics.
“In his submission the Accounting Officer had indicated that CMS was unable to supply the exact quantities required by the hospital and surrounding clinics due to the fact that supplies from CMS have to be rationed in order to cover other facilities around the country,” says the report.

The committee expressed concern about the inadequate supply of drugs to government facilities which puts the lives of patients at risk due to non- availability of essential supplies. It recommended that the Ministry identifies and prioritise measures that need to be taken to ensure that there is adequate supply of essential medicines which are needed in the public health system.

Meanwhile the report says the Ministry of Health and Wellness coordinates the operations and functions of some institutions which receive government subventions and secondment of staff from the government. These institutions include 10 NGO’s, two mission Hospitals, three mission clinics and two schools of Nursing.

It says in its endeavour to enhance efficiency and effectiveness of government support to NGOs the Ministry of Finance and Economic Development developed some Policy Guidelines for Financial Support to Non- Governmental Organisations.  According to the PAC report, the guidelines were meant to ensure that there is consistency, accountability and transparency in administering public funding to NGOs. However, the Ministry of Health did not comply with the very important guidelines.

“The main areas of non-compliance were the following: (i) There was no Evaluation Committee to vet proposals from NGOs, in some instances NGOs had formed part of the evaluation forum when their requests were being considered,” the report says.  It says there was continued funding of NGOs even when they failed to submit narrative and financial progress reports; and (iv) Continued funding of NGOs that failed to submit audited financial statements and management letters as required. The Committee expressed concern at the lapses in the administration of grants by the Ministry despite the large sums of public money awarded to these NGOs.

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BDF killings of Namibians: Court unable to rule on missing gun

24th January 2022
BDF

The Kasane Regional Magistrate Court refused this week to rule on whether three Namibians and their Zambian cousin shot dead by members of the Botswana Defence Force (BDF) were in possession of a rifle or not prior to their deaths.

Ruling in favour of the BDF members, Regional Magistrate Taboka Mopipi who presided over the inquest said, “It is acknowledged that no rifle has been produced before court to confirm that indeed the deceased were armed and or that there was indeed a gun shot.”  She said the evidence before the court is that search for the rifle(s) that allegedly triggered the gunfire exchange was done by both Namibia and Botswana SCUBA divers and nothing was found. She said when the said search was done, an area of search was demarcated around the scene area which was partly searched due to water animals such as hippos that launched an attack at the area during the search.

“The search was therefore never concluded. This therefore leaves a gap. To that end, the area not extensively searched, the court cannot make a finding whether the rifle in issue was there or not. This is a very crucial piece of evidence,” added Mopipi. She said the joint search did not conclude the exercise and I cannot properly make a finding of fact adding that that the rifle was there as the BDF allege can therefore not be ruled out.

The deceased are Martin Munilweye Nchindo, Ernest Nchindo, Tommy Sinvula Nchindo and Sivula Munyeme. The four deceased persons died on the night of the 5th November 2020, in the waters of the Chobe River (Southern Channel) near Sedudu/Kasikili Island in Botswana. Mopipi said the incident took place at night, in a gloomy atmosphere and that as at the time, movement in that particular area was restricted and or not permitted.

She said it was the evidence of some of the witnesses that the injuries as observed on the four deceased reflected that they were brutally assaulted and or beaten either before or after being shot. “Their evidence gained support from Witness 34, Dr. Bithoma Thotho Amis who observed post mortem on behalf of the families of the deceased and Government of Namibia. This witness however conceded during cross-examination that the injuries as observed have been caused by other contacts and or impacts such as falling and hitting the hard surface of a wooden canoe,” said Mopipi.

She emphasized that inquest proceedings have very serious consequences and therefore, whatever evidence brought before court must be produced by persons of right qualifications particularly the post mortem report which the court has to rely upon.
“The qualification of the expert is crucial in determining the credibility of the report. Upon assessment of both experts, I am inclined to adopt the reports from Witness 18, who is a qualified pathologist. A closer look at the other report indicates that the author, Witness 34 is not a qualified pathologist and it is meddled by issues outside an expert opinion,” she said.

Mopipi said reports compiled by a consultant Forensic Pathologist Dr. Kaone Panzirah-Mabaka show the causes of death as follows; Sivula Munyeme, gunshot injury to the chest and extremities, Martin Nchindo, gunshot wound to the abdomen and pelvis, Ernest Nchindo, multiple gunshot injuries to the chest and extremities and Tommy Nchindo, gunshot wound to the chest and abdomen.

“Medical evidence therefore prove conclusively that the four deceased persons died due to gunshots injuries. It is undisputed that the injuries were inflicted by seven (7) members of the Botswana Defence Force; Lieutenant Moreri Kenneth Mphela, Sergeant Ndingisano Nfazo, Sergeant Puisano Pistor Kgokong, Private Mbikiso Tafila, Private Emmanuel Moganetsi Majuta, Private Barulaganyi Rannosang and Private Oromilwe Motlhabi,” said Mopipi.

Mopipi found that there was a gunshot from the direction of the men to the direction of the BDF section.  “The BDF members retaliated and returned fire. This was done in accordance with Standard Operation Procedures (SOPs) within the BDF. According to the SOPs, in case a soldier is being fired at, they fire back and do not have to wait for a command,” she said. She added that “The gunfire exchange was brief and after it ceased, they used a torch to light where the men were and established that all the four men were motionless, two in one canoe, one in the other and the other man lying on the edge of the river on the Island.”

She said, “The evidence of the witnesses is that, when they followed the intel, the intent was to conduct an investigation. There was clearly no intent on their part to shoot the deceased, they did that as an act of retaliation.”

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