Khama says he has the constitutional power to disapprove
President Lieutenant General Seretse Khama Ian Khama has requested the Gaborone High court to dismiss a case in which the Botswana Law Society is asking the court to review and set aside his recent refusal to appoint a local attorney, Omphemetse Motumise as the Judge of the High court.
In a replying affidavit filed before court this week, President Khama explained that his decision is not liable for review by the High Court and that he has the power to decline to appoint a candidate whose been recommended for appointment by the Judicial Service Commission (JSC).
“I am advised, for reasons that will be more fully addressed at the hearing of this matter, that my aforesaid decision is not susceptible to review by this honourable court. Alternatively, should this court find that my said decision is indeed reviewable, that I have a discretion under section 96 (2) of the Constitution to decline to appoint candidates recommended for appointment by the JSC as judges of the High Court.”
The President further stated that in so far as the discretion reposed in him is concerned he exercised it “duly and properly and lawfully.”
“I have further been advised that the submissions advanced in the JSC’s affidavit concerning the interfacing between my powers and duties and those of the JSC under section 92 (2) of the constitution and the reviewability of my decision not to appoint the Second Applicant as a Judge of the High Court are sound and legally correct for reasons that would be more fully argued at the hearing of this matter,” the President stated.
However President Khama had also made it clear that he would not divulge to court the reasons why he rejected Motumise although he claims he had valid reasons he did not appoint him.
“First in appointing judges, I take into account a broad range of material considerations, including matters of national security, the socio-political situation in Botswana, public perception of the relevant candidate and the judiciary and questions of policy. All of these involve information to which JSC does not necessarily have access and which the JSC would, in the normal function of its functions, not be properly equipped or mandated to evaluate,” the President explained.
He was in fact quashing suggestions by the LSB that the president’s role in appointing of judges is merely ceremonial. Khama denied that his power to appoint was bureaucratic administrative function but rather “an executive power that does not fall to be reviewed by a court.”
“However there will in nature of things from time to time, also where there will be occasions where it would be inappropriate to appoint a nominee where the reasons for doing so will adversely reflect upon the integrity, character and reputation of the relevant nominee. It would be inappropriate for me under such circumstances to disclose the reasons for not appointing the candidate concerned as such disclosure would be prejudicial to that person. The withholding of reasons in such circumstances would be in the interest of the candidate,” the President filed another excuse for withholding information.
He further stated that the reason he would not impair candidates integrity by divulging the reasons he rejected them is because he wants the best candidates not be discouraged from applying for appointments. The contention is that if the best candidates were to be deterred by the fear that their names would be tarnished if they were to be rejected for appointment, then the fear may stop them for applying for appointment and the end result would be a compromised judicial system characterised by poor quality and integrity.
Equally the Judicial Service Commission has filed its arguments on this matter and it agrees with the President in most points.
In its submissions filed before the High court the JSC contends that transparency is actually not that important in the country’s constitution as it is in other countries.
“It is important to note that transparency is not a constitutional imperative in Botswana as it is in other countries. In summary, in the present case, the interests of transparency must be weighed against the privacy of individual candidates and the national interest that the best candidates for judicial appointments must be encouraged to apply free from the fear that their private or social lives will be subject to public scrutiny,” reads part of the JSC filed papers.
The JSC comprises of among others, the Chief Justice and the Attorney General.
According to JSC the President has every right to reject a nominee if he has valid reasons to do so.
The matter is yet to be argued before court. It is a case in which the LSB and Omphemetse Motumise are challenging the recent decision by President Khama to refuse to appoint Motumise to the High court bench.
Motumise got the best grades from the interview but the President rejected him and appointed Zein Kebonang as acting Judge. Kebonang is a twin brother to Sadique Kebonang who sits in Khama’s cabinet and he got the least marks during the interviews for appointment.
Mowana Copper Mine in Dukwi will finally pay its former employees a total amount of P23, 789, 984.00 end of this month. For over three years Mowana Copper Mine has been under judicial management. Updating members, Botswana Mine Workers Union (BMWU) Executive Secretary Kitso Phiri this week said the High Court issued an order for the implementation of the compromise scheme of December 9, 2021 and this was to be done within 30 days after court order.
“Therefore payment of benefits under the scheme including those owed to Messina Copper Botswana employees should be effected sometime in January latest end of January 2022,” Kitso said. Kitso also explained that cash settlement will be 30 percent of the total Messina Copper Botswana estate and negotiated estate is $3,233,000 (about P35, 563,000).
Messina Copper was placed under liquidation and was thereafter acquired by Leboam Holdings to operate Mowana Mine. Leboam Holdings struck a deal with the Messina Copper’s liquidator who became a shareholder of Leboam Holdings. Leboam Holdings could not service its debts and its creditors placed it under provisional judicial management on December 18, 2018 and in judicial management on February 28, 2019.
A new company Max Power expressed interest to acquire the mining operations. It offered to take over the Mowana Mine from Leboam Holdings, however, the company had to pay the debts of Leboam including monies owed to Messina Copper, being employees benefits and other debts owed to other creditors.
The monies, were agreed to be paid through a scheme of compromise proposed by Max Power, being a negotiated payment schedule, which was subject to the financial ability of the new owners. “On December 9, 2021, Messina Copper liquidator, called a meeting of creditors, which the BMWU on behalf of its members (former Messina Copper employees) attended, to seek mandate from creditors to proceed with a proposed settlement for Messina Copper on the scheme of compromise. It is important to note that employee benefits are regarded as preferential credit, meaning once a scheme is approved they are paid first.”
A savingram the Ministry of Local Government and Rural Development sent to Town Clerks and Council Secretaries explaining why councilors across the country should not have access to their terminal benefits before end of their term has been revealed.
The contents of the savingram came out in the wake of a war of words between counselors and the Ministry of Local Government and Rural Development. The councilors through the Botswana Association of Local Authorities (BALA) accuse the Ministry of refusing to allow them to have access to their terminal benefits before end of their term.
This has since been denied by the Ministry. In the savingram to town councils and council secretaries across the country, Permanent Secretary in the Ministry of Local Government and Rural Development Molefi Keaja states that, “Kindly be advised that the terminal benefits budget is made during the final year of term of office for Honorable Councilors.” Keaja reminded town clerks and council secretaries that, “The nominal budget Councils make each and every financial year is to cater for events where a Councilor’s term of office ends before the statutory time due to death, resignation or any other reason.”
The savingram also goes into detail about why the government had in the past allowed councilors to have access to their terminal benefits before the end of their term. “Regarding the special dispensation made in the 2014-2019, it should be noted that the advance was granted because at that time there was an approved budget for terminal benefits during the financial year,” explained Keaja. He added that, “Town Clerks/Council Secretaries made discretions depending on the liquidity position of Councils which attracted a lot of audit queries.”
Keaja also revealed that councils across the country were struggling financially and therefore if they were to grant councilors access to their terminal benefits, this could leave their in a dire financial situation. Given the fact that Local Authorities currently have cash flow problems and budgetary constraints, it is not advisable to grant terminal benefits advance as it would only serve to compound the liquidity problems of councils.
It is understood that the Ministry was inundated with calls from some Councils as they sought clarification regarding access to their terminal benefits. The Ministry fears that should councils pay out the terminal benefits this would affect their coffers as the government spends a lot on councilors salaries.
Reports show that apart from elected councilors, the government spends at least P6, 577, 746, 00 on nominated councilors across the country as their monthly salaries. Former Assistant Minister of Local Government and Rural Development, Botlogile Tshireletso once told Parliament that in total there are 113 nominated councilors and their salaries per a year add up to P78, 933,16.00. She added that their projected gratuity is P9, 866,646.00.
A surge in consumer spending is expected to be a key driver of Botswana’s economic recovery, according to recent projections by Fitch Solutions. Fitch Solutions said it forecasts household spending in Botswana to grow by a real rate of 5.9% in 2022.
The bullish Fitch Solutions noted that “This is a considerable deceleration from 9.4% growth estimated in 2021, it comes mainly from the base effects of the contraction of 2.5% recorded in 2020,” adding that, “We project total household spending (in real terms) to reach BWP59.9bn (USD8.8bn) in 2022, increasing from BWP56.5bn (USD8.3bn) in 2021.” According to Fitch Solutions, this is higher than the pre-Covid-19 total household spending (in real terms) of P53.0 billion (USD7.8bn) in 2019 and it indicates a full recovery in consumer spending.
“We forecast real household spending to grow by 5.9% in 2022, decelerating from the estimated growth of 9.4% in 2021. We note that the Covid-19 pandemic and the related restrictions on economic activity resulted in real household spending contracting by 2.5% in 2020, creating a lower base for spending to grow from in 2021 and 2022,” Fitch Solutions says.
Total household spending (in real terms), the agency says, will increase in 2022 when compared to 2021. In 2021 and 2022, total household spending (in real terms) will be above the pre-Covid-19 levels in 2019, indicating a full recovery in consumer spending, says Fitch Solutions. It says as of December 6 2021 (latest data available), 38.4% of people in Botswana have received at least one vaccine dose, while this is relatively low it is higher than Africa average of 11.3%.
“The emergence of new Covid-19 variants such as Omicron, which was first detected in the country in November 2021, poses a downside risk to our outlook for consumer spending, particularly as a large proportion of the country’s population is unvaccinated and this could result in stricter measures being implemented once again,” says Fitch Solutions.
Growth will ease in 2022, Fitch Solution says. “Our forecast for an improvement in consumer spending in Botswana in 2022 is in line with our Country Risk team’s forecast that the economy will grow by a real rate of 5.3% over 2022, from an estimated 12.5% growth in 2021 as the low base effects from 2020 dissipate,” it says.
Fitch Solutions notes that “Our Country Risk team expects private consumption to be the main driver of Botswana’s economic growth in 2022, as disposable incomes and the labour market continue to recover from the impacts of the Covid-19 pandemic.” It says Botswana’s tourism sector has been negatively impacted by the Covid-19 pandemic and the related travel restrictions.
According to Fitch Solutions, “The emergence of the Omicron variant, which was first detected in November 2021, has resulted in travel bans being implemented on Southern African countries such as South Africa, Botswana, Lesotho, Namibia, Zimbabwe and Eswatini. This will further delay the recovery of Botswana’s tourism sector in 2021 and early 2022.” Fitch Solutions, therefore, forecasts Botswana’s tourist arrivals to grow by 81.2% in 2022, from an estimated contraction of 40.3% in 2021.
It notes that the 72.4% contraction in 2020 has created a low base for tourist arrivals to grow from. “The rollout of vaccines in South Africa and its key source markets will aid the recovery of the tourism sector over the coming months and this bodes well for the employment and incomes of people employed in the hospitality industry, particularly restaurants and hotels as well as recreation and culture businesses,” the report says.
Fitch Solutions further notes that with economies reopening, consumers are demanding products that they had little access to over the previous year. However, manufacturers are facing several problems. It says supply chain issues and bottlenecks are resulting in consumer goods shortages, feeding through into supply-side inflation. Fitch Solutions believes the global semiconductor shortage will continue into 2022, putting the pressure on the supply of several consumer goods.
It says the spread of the Delta variant is upending factory production in Asia, disrupting shipping and posing more shocks to the world economy. Similarly, manufacturers are facing shortages of key components and higher raw materials costs, the report says adding that while this is somewhat restricted to consumer goods, there is a high risk that this feeds through into more consumer services over the 2022 year.
“Our global view for a notable recovery in consumer spending relies on the ability of authorities to vaccinate a large enough proportion of their populations and thereby experience a notable drop in Covid-19 infections and a decline in hospitalisation rates,” says Fitch Solutions. Both these factors, it says, will lead to governments gradually lifting restrictions, which will boost consumer confidence and retail sales.
“As of December 6 2021, 38.4% of people in Botswana have received at least one vaccine dose. While this is low, it is higher than the Africa average of 11.3%. The vaccines being administered in Botswana include Pfizer-BioNTech, Sinovac and Johnson & Johnson. We believe that a successful vaccine rollout will aid the country’s consumer spending recovery,” says Fitch Solutions. Therefore, the agency says, “Our forecasts account for risks that are highly likely to play out in 2022, including the easing of government support. However, if other risks start to play out, this may lead to forecast revisions.”