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High Court sides with unmarried fathers on child adoption

Judge Dingake rules Adoption Act unconstitutional

On Monday the High Court delivered judgment in a constitutional challenge to the Adoption of Children Act. The Act permits a child who is born out of wedlock to be adopted by a third party without the consent of the child’s biological father.

Geoffrey Khwarae and his attorney, Uyapo Ndadi are of the view that Judge Dingake’s ruling which declared Adoption of Children Act unconstitutional is a victory for all men. Ndadi and his clients wanted the Court to determine whether Botswana’s law protects the interests of children, who are ultimately the ones who bear the burden in such a case.

Ndadi, a celebrated human rights lawyer, is pleased with the outcome of the case. The judgment set aside the Adoption of Children as it goes against the country’s constitution. Unlike many other lawyers, Ndadi has developed a predilection for human rights cases involving families.


Before practicing as an attorney, Ndadi was at the helm of Botswana Network on Ethics, Laws and HIV/AIDS (BONELA), as its Executive Director an organization that promotes a just and inclusive environment to prevent HIV infection and provide a greater quality of life for people affected by HIV and AIDS making sure that people living with HIV/AIDS’s rights are protected.


Khwarae had approached Ndadi to act on his behalf in his endeavor to prevent his minor child from being adopted against his wishes. Through his lawyers, he challenged the constitutionality of section 4(2) (d)(i) of the Adoption Act in so far as it does not require the consent of a biological father to a child born out of wedlock regardless of the child’s best interests. He asked that the Court declare the provision unconstitutional and issue an order that his child may not be adopted without his consent.


 “It is not a one man victory, it is a victory which shall be celebrated by all men,” Khwarae told Weekend Post shortly after the High Court ruling. He observed that it is common that women tend to bully man when it comes to child custody. “Women usually have the children adopted without the consent of their biological fathers,” he stated.  


Meanwhile, Ndadi is convinced that the judgment is monumental and timely, “Not only will this case enhance our jurisprudence, it will also impact on people’s lives,” he said.


 “At the heart of any adoption case henceforth, the primary factor will be what is in the child’s best interest.”


This is not the first time that Ndadi challenged the constitutionality of an Act of Parliament, in 2013, the then BONELA Director argued against the new Public Health Act, which forced people to reveal their HIV/AIDS status to close relatives and their sexual partners, failing which a person is deemed to have committed an offense punishable by law.


Indeed, it was not just victory for Khwarae and Ndadi after Judge Dingake delivered a verdict in their favour, to a larger extent all men in Botswana breathed a sigh of relief. The same euphoria was experienced from the public and the organizations which had have similar view on the rights of the fathers and children.


“The judgment brings Botswana’s adoption laws in line with more progressive Children’s Act of 2009 that places the child’s best interest at the heart of issues concerning the child,” said Cindy Kelemi, the incumbent Director of BONELA.  


All along, Khwarae and his lawyer were convinced that they had a strong case which could set aside part of the Adoption of Children Act.


Khwarae is irked by the section which does not require his consent in the event of adoption of his daughter because he was not married to the mother of the daughter. His lawyer, Ndadi put up a solid argument that the Act denied Khwarae his freedom from discrimination, freedom from inhumane and degrading treatment, “Tomorrow it could happen to another man, that is why we must cherish this judgment,” said Khwarae, “We are still waiting to see if the state will appeal the judgment or not.”


On the losing side, Moloise from the Attorney General’s Chambers had argued that the Adoption Act does not discriminate against fathers on the basis of their sex. At most, he said, the Act discriminates against unmarried persons as opposed to married persons, and marital status is not a ground of discrimination.


He further argued that any discrimination was nevertheless constitutionally justified and reasonable taking into account the historical origins of the adoption law. These origins, he argued, are embedded in the common law and customary law which provide that parental power is acquired through lawful wedlock.

The institution of marriage, he argued, is a phenomenon deeply revered and entrenched in Botswana culture. The notion of the “legitimacy” of the child is an intimate part of this culture, he submitted, the preservation of which justifies the discrimination against fathers.


Moloise added that the Adoption Act may be insulting towards unmarried fathers but is by no means inhuman or degrading. In addition, he argued, the right to a fair hearing extends only to criminal trials and is not a right enjoyed in the civil context. His contention was that while the 2009 Children’s Act extends the role of biological fathers in the lives of their children born out of wedlock, it does not confer on fathers the right to consent to their children’s adoption.


Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and other civic organisations are advocating for law reform in child adoption to ensure that it is aligned with the principles enshrined in the Children’s Act of 2009.
 
“International and regional human rights law requires that the child’s best interests be of paramount importance in all issues concerning the child. In cases where fathers have played a positive and active part in their child’s life, it is generally not in the child’s best interests to terminate that relationship by adoption against the father’s wishes,” says Anneke Meerkotter, Litigation Director at the Southern Africa Litigation Centre (SALC), which is providing assistance on the case.

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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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