Minister says one law firm may have caused delay in privatisation
The Minister of Transport and Communication Tshenolo Mabeo has said that the engagement of sole law firm in managing the process of BTCL privatisation may have led to the delay in allowing Batswana to participate in the purchase of the BTCL shares.
In an interview with the WeekendPost Mabeo indicated that there has been delay in opening the shares to the public which he partly attributes to engagement of Monthe Marumo law firm in solely providing the advisory roles of parastatals Botswana Fibre Network (BOFINET) and Botswana Telecommunications Corporation Limited (BTCL).
“The danger of engaging one law firm in this process, which of course is in conflict of interest, may be that government business may have been delayed in the process,” he emphasised.
If it was different firms, they could have long concluded this privatisation process and shares opened for Batswana to take part, Mabeo highlighted. He said they could have concluded the process in December last year but were forced to postpone. The Minister pointed out that it consequently delayed services to the public.
According to Mabeo, engaging one law firm in BTCL privatisation process also puts the government at risk as it will act based on the informed foundation and decision from the law firm. The Minister stressed that the law firm should have declared its dual engagement by the parastatals and by extension the ministry in the process of privatisation – by making the government aware.
He added that it is a clear conflict of interest on the part of the law firm and that Law Society of Botswana which regulates lawyers should look into the matter. When asked by this publication, if it was not the responsibility of the ministry and concerned parastatals to avoid the conflict of interest by the law firm, the minister defended the latter saying “it was upon the engaged law firm not parastatals.”
Mabeo was speaking to the WeekendPost following a parliamentary business question session that revealed the alleged conflict in the process and progress of privatisation of the BTCL.
Member of Parliament for Gabane Mmankgodi, Pius Mokgware had asked Minister Mabeo to state the law firms involved in privatisation of BTCL process and the fees paid, including whether individuals involved are not from one law firm or partners in one law firm. Mokgware also asked the criterion that was used to select the law firms in both situations.
In answering, Mabeo stated that the two individuals advising BTCL and Botswana Fibre Network (BOFINET) are from the same law firm of Monthe Marumo and company incorporating Molatlhegi and Associates. He added that neither Bofinet nor BTCL were aware of this conflict until this week Monday (30th March 2015). The onus on declaring conflict of interest was declared by Monthe Marumo and Company incorporating Molatlhegi and Associates, Mabeo told parliament on Wednesday.
However, Mabeo said Monthe Marumo and Company incorporating Molatlhegi and Associates was directly appointed by both BTCL and Bofinet from their approved panel of legal firms. The panel of legal firms, he said was selected through selective tendering. He also noted that Collins Newman and Delloite Consortium were appointed by PEEPA through a competitive public tender process.
According to Minister of Transport and Communication, the official transaction advisors to government (the selling shareholder), appointed by the Public Enterprises Evaluation and Privatisation Agency (PEEPA), are Collins Newman and Deloitte (CND) Consortium. The total amount of the Consortium (transaction advisors) is P9.5 million.
The legal advisors in the consortium are Collins and Newman & Company. The legal fees according to the consortium contract with PEEPA signed in March 2011 are P2, 987, 000.00. “The legal advisors to the BTCL are Monthe Marumo and Company (in partnership with ENS Africa). They were engaged on the 6th of March 2014 at total fees of P1, 703, 916. 85.”
Bofinet further engaged Monthe Marumo and Company incorporating Molatlhegi & Associates to review and advise them on the draft possession and use Agreement and were paid a total amount of P47, 181.67 VAT inclusive.
In another question related to BTCL privatisation, in particular BTCL and Bofinet agreement, Mokgware had wanted the Minister to state whether the 4th November 2014 version of the Possession and use Agreement have been signed, and if the BTCL Initial Public Offering (IPO) has been launched as at 31st December 2014 as was planned, as well as if the postponement will attract legal costs.
“The BTCL IPO was not launched on the 31st December 2014. Government decided to postpone the launch to enable it to conclude the process of raising funds for the underwriting arrangements. Further, it was intended that the postponement would give Batswana ample time to raise capital to effectively participate in the purchase of the BTCL shares,” Mabeo answered.
According to Mabeo, the postponement of the IPO launch will not only attract additional legal fees but additional transactional advisory services. This is because some of the activities under the scope of transactional advisory services will have to be redone or updated, he said.
An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.
In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.
In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.
Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.
More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.
At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.
The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).
Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).
International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.
In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”
The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”
According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.
In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.
The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.
LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.
“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.
Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.
CEO of Khato Civils Mongezi Mnyani has come out of the silence and is going all way guns blazing against the company’s adversaries who he said are hell-bent on tarnishing his company’s image and “hard-earned good name”
Speaking to WeekendPost from South Africa, Mnyani said it is now time for him to speak out or act against his detractors. Khato Civils has done several projects across Africa. Khato Civils, a construction company and its affiliate engineering company, South Zambezi have executed a number of world class projects in South Africa, Malawi and now recently here in Botswana.
About ten (10) Umbrella for Democratic Change (UDC) parliamentary candidates who lost the 2019 general election and petitioned results this week met with UDC Vice President, Dumelang Saleshando to discuss the way forward concerning the quandary that is the legal fees put before them by Botswana Democratic Party (BDP) lawyers.
For a while now, UDC petitioners who are facing the wrath of quizzical sheriffs have demanded audience with UDC National Executive Committee (NEC) but in vain. However after the long wait for a tete-a-tete with the UDC, the petitioners met with Saleshando accompanied by other NEC members including Dr. Kesitegile Gobotswang, Reverend Mpho Dibeela and Dennis Alexander.