Botswana Democratic Party (BDP) is predominately associated with its founding stalwarts like Sir Seretse Khama, Sir Ketumile Masire and Moutlakgola Nwako to mention but a few – but the party’s history will make little sense without the mention of the name Mompati Merafhe. Although a late entrant into the BDP, his arrival created controversy that lasted for years where upon his arrival he made his ambitions for the presidency clear, a move that would put him at axis with fellow party loyalist polarizing the organisation for years.
In 1989 following another triumph for the BDP at the polls, like it has been the norm, then President Sir Ketumile Masire announced a number of Specially Elected Members of Parliament, but this time around the list comprised of influential men who will change the history of the party forever – Festus Mogae who fate will offer him the second most powerful position on the land three years later, and Mompati Merafhe who would then find himself fighting unending factional wars with stalwarts like Daniel Kwelagobe and Ponatshego Kedikilwe.
Mogae had been plucked from the civil service where he had worked with President Masire for the better part of his civil service career mostly as his Permanent Secretary. On the other hand, Merafhe who was two years shy of nearing his retirement age had been lured from the Botswana Defence Force (BDF) where he served as the army commander since its formation in 1977.
When he arrived in 1989 for the sixth parliament, a tumult time for the ruling BDP, Merafhe found a party readying for something big. It was expected that President Masire, who was now aging, was about to retire from office. The status quo favoured the then Vice President, Peter Mmusi to become the successor.
With him getting along with the president and having support of the most powerful party stalwarts, Kwelagobe and Kedikilwe, his fate was almost sealed. David Magang had also expressed his desire for the presidency, but his chances ranged from slim to none given his relationship with Masire and Kwelagobe – the Mmusi faction then. Masire never got along with Magang, largely owing to his views about government and the need for reforms within the party.
When Merafhe arrived, the army general swiftly aligned himself with those who were on the opposite side of Kwelagobe-Mmusi axis. This saw the birth of the Big Five faction comprised of David Magang, Mompati Merafhe, Roy Blackbeard, Bahiti Temane and Chapson Butale.
The faction pushed for Merafhe and supported his presidential bid. President Masire had seemed to be sympathetic to the Kwelagobe-Mmusi faction largely because it was made up of people who were members of his Central Committee and most importantly his foot soldiers.
As the Secretary General of the party, Kwelagobe wielded power and was the most influential in the party. Coupled with his workaholic virtue, Kwelagobe used to traverse the country to canvass for support and build party structures something which ensured that the Big Five faction was kept out of the central committee. For many years, party President Masire, its Chairman Peter Mmusi, Secretary General Daniel Kwelagobe and Treasurer Kedikilwe remained invincible.
The watershed moment for Merafhe and the Big Five came in 1992, when Vice President Peter Mmusi and Minister of Agriculture Daniel Kwelagobe were implicated in land allocation scandal which ensnared them as having acted wrongly in allocation of plots in Mogoditshane.
The report which steered unprecedented divisions within the party was instigated by Mmusi himself following uneasy complaints about land corruption in Mogoditshane and other peri-urban areas. Mmusi was also a minister of Local Government and Lands and he had to act – rightly so, he convinced President Masire to set up a commission of inquiry. The report was chaired by founding party veteran Englishman Kgabo and its findings which were to be known as the Kgabo Report left the BDP vastly polarized.
Merafhe’s faction pushed for the suspension of the duo, and after months of resistance the two bowed out of government, leaving the party in chaos. Mmusi resigned as the country’s Vice President and Minister of Local Government and Lands, the only Vice President to have done so; while Kwelagobe also cleared his table at the Ministry of Agriculture.
These events however left Masire in a vulnerable position without his two trusted men in government and had to act to find the replacement for his number two. Kwelagobe-Mmusi faction preferred Kedikilwe for Vice Presidency while the Big Five wanted Merafhe to be given the nod.
Sensing a perilous situation on the party’s way, Masire bypassed the two and instead opted for Festus Mogae mainly because he was not tainted by factional wars and because he never showed any presidential ambitions. Many, both in Mmusi-Kwelagobe and the Big Five understood Mogae’s appointment as stopgap and they could still launch a comeback for vice presidential bid after the 1994 general elections.
Merafhe had won, but it did not last for a long time. The Mmusi-Kwelagobe faction was convinced that Merafhe has plotted their downfall and as the Minister Presidential Affairs and Public Administration he packed the entire investigating team with people who were loyal to his course. Pondering their next move and imagining life outside government the duo approached the courts to challenge the legality of the commission and its findings.
Subsequently, the duo was suspended from the party for challenging the findings of the Kgabo Commission – a case they ultimately won. The court ruled that the proceedings of the commission should not have been held in camera therefore the findings of the report were set aside.
In the run up to the 1993 Kanye Congress, the Big Five took over the control of the party, and condemned the two forever. The situation now meant that, the once powerful men will be out of both government and the party highest governing structure something they could not imagine happening in their life time.
Merafhe had declared that he will be contesting the party chairmanship, a position which is general associated with the vice presidency in the BDP. However following their victory at the court in regard to their case, lawyers for Mmusi and Kwelagobe told the party that their clients were entitled to contest elections at the congress. In turn, the party sought and was furnished with legal opinion advising that the party and government could not be regarded as one entity. This meant the two won the day, again the Big Five’s hopes were shattered.
In the ensuing elections Mmusi-Kwelagobe retained their positions as chairman and secretary general respectively. Kedikilwe also retained his position as Secretary General. Meanwhile the internal bickering did not stop, even ahead of the crucial 1994 general elections. In the process, Merafhe’s rival Mmusi passed on following an illness associated with depression resulting from his demotion from the Vice Presidency.
The 1994 general elections saw for the first time Botswana National Front (BNF), the only opposition party in parliament registering 13 seats, a development which meant that the BNF needed eight more seats in the next general elections to condemn BDP to the pastures. It was in fact said the party went to the 1994 general elections as two parties in one, with the other faction riving the party apart. Among the victims were four cabinet Ministers.
In the absence of Mmusi, Kwelagobe pushed for Kedikilwe as his replacement. DK as Kwelagobe is popularly known never wanted the presidency for himself but was more influential as a kingmaker through the use of his influence in the party and its structures. He helped recruit PHK from civil service and was convinced the man had what it takes. Their faction was renamed Kwelagobe-Kedikilwe faction and later, Barataphathi.
President Masire had intended to leave office immediately after the 1994 general elections. With discontent also growing over his leadership, he was under pressure to go, but could not leave the house on fire. Kwelagobe and Merafhe were not showing any signs of getting along.
Masire stayed, to remedy the situation. The 1995 congress, saw Merafhe vying for the Chairmanship against newly designated president elect of Barataphathi, Kedikilwe. It was much believed that Kedikilwe was more powerful than Mmusi and Merafhe stood no change again. Just like the previous congress, Kwelagobe’s team whitewashed the Big Five, also winning the chairmanship.
There was only one reason why the two were prepared to go to war over the chairmanship. Both viewed it as a stepping stone to the presidency and it was clear that Masire will go before the next general elections; the other reason being that Mogae had no constitutional protection at that time.
In the event that the president leaves office, parliament will convene within seven days to elect a new president. If Masire steps down as the President of the Republic the post of presidency at the party will also fall vacant, something which Kedikilwe knew that it will months before rising to the highest rank. Merafhe knew very well, he could use his support in parliament to also rise. It was an unending war.
Masire was a worried man, wanting to go, the situation kept nagging him. If he left while the status quo was unchanged, Mogae could fall and the party will split. Mogae could not beat neither Kedikilwe nor Merafhe in the event that the Presidential contest remained open. Masire devised a plan that would ensure that Mogae succeeded him smoothly and proposed for automatic succession in the event the president leaves office before the elections. Both Kwelagobe and Merafhe were against the idea, but it was Masire who won the day.
By the time Masire left office at the end of March in 1998, Merafhe has fallen out of the race, this time for the country’s number two. Mogae has already secured his place through the constitutional amendment provision that guaranteed automatic succession. With the race for number two now on, it was David Magang versus Kedikilwe this time around.
The general mood suggested that Mogae will pick Magang, since the two have been close allies since their school days. However, when the opportunity came, Mogae like Masire did in 1992, bypassed the two and instead convinced army general, Lt Gen Ian Khama to quit the post to take over the country’s number two post. On the 2nd of April 1998, Mogae announced Khama as the new vice president.
Ten years later, it was now time for Mogae to go. This time around there was no question on who was going to succeed as it was clear since 1998 when Khama took over as Vice President that he will succeed Mogae as the next president. Following his inauguration on the 2nd of April 2008, Khama announced Mompati Merafhe as the Vice President. This time around it was clear and without bickering that Merafhe will get the nod.
Upon Merafhe’s retirement in 2012, Khama appointed Kedikilwe, who have been Acting in the absence of Merafhe as the new Vice President. Both men, although they did not get the chance to become president, bowed out of politics satisfied.
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.”
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).
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.