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Duma may make way for Dumelang

COMRADES PARADE: Umbrella for Democratic Change leader, Duma Boko has only had kind words for the Botswana Congress Party (BCP) in recent weeks. The two parties are preparing to launch their marriage, and Dumelang Saleshando, the BCP leader may be rewarded with a green card to contest in Gaborone Bonninton North, as Boko focuses on presidential bid.

That the Umbrella for Democratic Change (UDC) and the Botswana Congress Party (BCP) are headed for talks is not in doubt. What could be overworking the ruling Botswana Democratic Party’s (BDP) think tanks is the confidence that is mounting among opposition ranks.


Opposition lobbyists on the ground want Duma Boko to purely focus on the  Presidential bid in 2019 and not distract his bid with the side dish of a constituency battle – and this could be another add on to mending relations between the UDC and BCP.


Events on the ground dictate that Boko has settled the debate of who should or will be the President of the all-encompassing UDC, while on the other hand the BCP’s Dumelang Saleshando has accepted his fate – that should an agreement be penned, he will be Boko’s running mate, and one of the two Vice Presidents under the UDC.  


Some BCP stalwarts who spoke to Weekend Post indicated that the BCP has always been a proponent of opposition cooperation and that there is no doubt that they will be part of the UDC in the run up to the 2019 elections.
“This effectively means that we are going to also work with the UDC in all the bye-elections that will come before 2019.”  


This publication gathered that the BCP central committee is expected to meet on Saturday to come up with a roadmap for the talks. “The central committee meeting will deliberate on how the party handles the talks internally. The party expects a lot of trade-offs, including on constituencies,” said a source.


Much has been said about the hierarchy of the UDC, should the BCP come through. Now that the ink has dried on who is head, lobbyists from both camps want Duma Boko to focus on the Presidential bid in the 2019 elections campaign. They are of the view that Boko could be central to a potential victory in 2019, if his offensive charm is unleashed across constituencies. The thinkers are also taking cognisance of the possibility of a direct election of the President, should the BDP sponsor such a law.


The opposition is also wary that a new legal dispensation in regard to election of the President of the Republic could give President Lt Gen Ian Khama another bite at the cherry if he so wishes. There are murmurs that some within the BDP are not confident enough about their prospect of success without Khama at the helm. But as of now, it is a non-issue; automatic succession is still the order of day.


“There are many reasons why we wish to see comrade Boko profiled for State House; if he makes way for Saleshando, it means that Gaborone Central remains with the Botswana Movement for Democracy (BMD) and there will be not a lot of debate as to whether Saleshando should go back to Gaborone Central or not,” said one of the lobbyists.


While some had doubted Boko’s political stamina and appetite in the past, the BNF leader has already proved his mettle; he was at the forefront in the Goodhope-Mabule bye-election when Kgosi Lotlaamoreng II annihilated Presidential Affairs minister, Eric Molale.

And through his actions, Boko has demonstrated that he is ready to challenge for the highest office in the land, his followers have not even an iota of doubt. There is also no threat from the BNF front, it is evident that there is and there will be no vacancy for the position of president at BNF in a long shot.


Indications are that Saleshando could then be shifted to Gaborone Bonnington North, which will be one of the two or three constituencies awarded to the BCP in the southern part of the country. Informants have indicated that preliminary discussions point to the BCP being given the majority of the northern constituencies except for Francistown South and Maun West.


Political analyst, Dr Wazha Morapedi of the University of Botswana believes that should Boko give way to Saleshando, it will be a masterstroke. He said the gesture could also have the potential of warming up BCP members who doubted the genuineness of the cooperation. He also pointed out that the move could free Boko to focus on the bigger and broader issues of the campaign towards the 2019 general election.


Morapedi also told opposition parties to focus on UDC only, “any other thing will not yield any results. The BCP should just come under the UDC and they should all dissolve their parties,” he said. Morapedi pointed out that things like a pact will not work. “They must eject all those against cooperation and focus on the UDC and they will see the results.” He said it is not that important as to who will stand where, but rather the model.


According to UDC spokesperson, Moeti Mohwasa, the BCP gesture not to contest Boswelatlou is welcome because it paves way for the BCP to come under the Umbrella model. He said the two parties are ready to engage each other, “and we would very want the BCP to come under the UDC,” he said.

On the issue of Boko paving way for Salesghando Mohwasa cautioned members to desist from making certain moves which may put the leadership under unnecessary pressure. He said they should allow the talks to commence and conclude and the leadership will make final announcements.


BCP spokesperson, Dithapelo Keorapetse said: “We are not standing in Boswelatlou ward in Lobatse and we will assist the UDC to retain the seat. The cooperation in Botswelatlou is a culmination of both parties’ attempts to forge relations that would usher in an amicable working relationship and is a big step for the envisaged opposition cooperation leading up to 2019 general elections. We are currently working on a Memorandum of Understanding for bye-elections from now onwards and we hope not to oppose each other in 2019.

The BCP believes that Batswana and opposition parties enemy is one, BDP, therefore we ought to do as much as we can to retain seats held by opposition and wrestle those in the BDP in future bye-elections. BDP has become corrupt and bereft of ideas and has to go and it is only through opposition cooperation that we can achieve that.

So failure to cooperate is not an option, we have to find a way to emancipate Batswana who clearly want change now. On how we are going to cooperate in terms of the model, it will be discussed by the two parties looking at would work. We remain optimistic however that all will go well.”  


For the first time in history the BDP has had its popular vote slip to below 50 percent of the total votes. The opposition is confident of unseating the BDP at the next election and the ruling party has been forced to introspect and re-engineer some of its own internal processes such as primary elections.


Duma Boko easily won the Gaborone Bonninton North constituency against BDP’s Robert Masitara and BCP’s Annah Motlhagodi. Motlhagodi is expected to lean on the side of her president should the constituency become a bait in the unity talks.

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BONELA speaks on same-sex decriminalization case

18th October 2021
BONELA

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.”

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Masisi warns Gov’t officials

18th October 2021
President Masisi

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).

 

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Guma’s battle for millions of Pula give Court headache

18th October 2021
Guma Moyo

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.

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