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Khama Cabinet: The shocking and expected


President Lt Gen Ian Khama has appointed his Cabinet and once again the President has done it his own way. The nation however has had less to talk about with some observers saying Khama had to do with what he had following the defeat of most of his senior Ministers in the just-ended elections. Others however posit that the Cabinet brings nothing new as the president has just recycled his cabinet.


This, some political commentators argue, does not bring fresh ideas that the ministers would bring, especially considering that some had served for quite some time in some Ministries and failed to bring out any meaningful change or transformation.


During the educational crises mayhem, Khama reshuffled his Cabinet in a bid to address the matter. It is not known whether the crises reshuffle has yielded any positive results as nothing has been said yet.  


There are ongoing debates around the world that with the fundamentals of the economy deteriorating, it may be time to have discourse on whether it is time to consider the appointment of experts as Government ministers, as opposed to the current method which has been labelled by some, as nothing more than a patronage system.


What we have seen not only in Botswana but regionally and perhaps globally, is the appointment of ministers based purely on political as opposed to technical competences. This has been the case all along despite a few skills being utilised in one or two Ministries. The Botswana Constitution provides for four specially elected Members of Parliament (MPs) and such individuals are chosen to provide their specialist skills to parliamentary discourse.


 There have been concerns, too, that the specially elected MPs are normally the President’s cronies but Khama’s choices, this time around, are well-deserved, according to observes. They, however, question former High Court judge Unity Dow’s deployment to the Ministry of Education and Skills Development.


 “What skills is she taking to the Ministry when the Ministry of Defence, Justice and Security she could have been given has gone to former youth, sport and culture minister Shaw Kgathi?” they posit.
Kenneth Matambo, they say, has been rightly re-elected to the Ministry of Finance and Development Planning for continuity purposes, together with Kitso Mokaila to Minerals and Water Resources – a hard worker of note who they say is results-oriented.


Mokaila studied to become an auto technician at the Swaziland College of Technology, and after graduating he joined the Botswana Defence Force (BDF) in 1980. While serving in the army, he studied Bachelor of Science Degree in Mechanical Engineering in India.


Academics around the world, research says, have shied away from debate on this critical issue of skills and Cabinet posts. Tim Besley, Professor of Economics and Political Science at the London School of Economics in his academic paper, ‘Do Democracies Select More Educated Leaders?’ notes that modern political economy literature has “not only neglected the problem of political selection, but it has been positively hostile to the topic”.


This he posits is very important aspect of national development that has to be considered carefully by all stakeholders in a nation.


Writer Perry Munzwembiri also argues that it is highly improbable that an individual would trust an engineer to manage the legal aspects of their life, nor would they solicit the services of someone skilled in law to handle their personal finances.


“Be that as it may, when it comes to governmental level, this is what has been the norm. Can a country leave its financial and economic planning fate in the hands of a lawyer? This discussion becomes particularly interesting when one looks at economic and finance ministers globally, especially in light of the global financial crisis,” he writes.


The only risk with such a system, and what a significant risk it is, is that ministers who lack the requisite technical competence are more likely to make bad policy decisions, as their scope of understanding key issues affecting their ministries may be limited.


 In Botswana, however, as in many regional countries, there have been arguments that technical competence is not as important for ministers, as it is the Permanent Secretaries and Director Generals who are charged with the actual running of the department on a day-to-day basis, from our British inherited system of government.


In Botswana, Ministers are just overseers and permanent secretaries run the show, this has come in handy in times where Ministers have been defeated by their political rivals. However, there are concerns that their prominence as the face of the Government in whatever ministry they are in, it might be argued how it is critical to appoint ministers with the necessary skills and competence to oversee important portfolios.


A clueless Minister, some argue, will rubber-stamp everything that comes his or her way. A person with a good grasp of finance and economic matters, for instance, has always led the Ministry of Finance and Development Planning. This trend has been adopted in a number of African countries.


Munzwembiri argues that it may be worthwhile to have the debate on whether it would be beneficial to the countries’ developmental cause, if experts in different areas were to be appointed as ministers to run the portfolios of the fields they are experts in.


“The increased understanding they have of their domains, and the skill set they possess, would better equip them to tackle the various challenges faced by the country. Again, the odds of avoiding policy missteps would be lessened, and the correct and proper decisions would be made at ministerial level. No doubt this is a highly sensitive subject as there may be many political forces at play in the appointment of ministers,” he argues.


He continues that for now though, governments are content at selecting ministers based on their political value as opposed to technical competence to a greater degree.


“It may well require crises of epic proportions to effect a change to this line of thinking, which will see experts being appointed as policy-makers,” he argues.


Political appointments have been a subject of intense debate in Botswana as many are convinced that Khama safeguards ministries where he has interests with trusted fellows. A case in point is the Ministry of Environment, Wildlife and Tourism where his brother, Tshekedi, has been not been removed as is the case with a number of Ministers.


Tshekedi Khama has a Diploma in Business Management from the Institute of Development Management (IDM), as well as a Certificate in Animal Husbandry from the University of Botswana and Swaziland.


Observers say another eye-raising move is that of Kgathi, who was transferred from the Ministry of Youth, Sport and Culture to the Office of the President (OP) and currently to a senior ministry of Defence, Justice and Security.


It is unclear what has swiftly catapulted Kgathi to the high echelons of power, but insiders suspect his blind loyalty to the powers that be could be the key. They add that Kgathi is too submissive and would not dare jeopardize the growing trust and relationship between him and the President. This they say is the beginning of better things to come for Kgathi. He was academically well suited for his former Ministry having graduated with a Master degree in Public Administration and a Masters in Sport, Culture and Development.


One man many had long waited to hear of was Khama’s closest friend, Thapelo Olopeng who heads the Ministry of Youth, Sport and Culture. Many had seen him as a full Minister but not at the sports Ministry. It is therefore not surprising that he is the only new MP to be a full Minister but it is not clear what skills or experience he will be taking to the Ministry.


Observers say he is youthful and has been very active in the Khawa Dunes games in which Khama is a regular partaker. Olopeng has a certificate in Financial Management, a Diploma in Business Management and Association of Accounting Technicians (AAT).


Another key Ministry is the Ministry of Health, which has been given to Dorcus Makgato backed by Dr Madigele, a trained doctor.


Makgato has a Masters in Science and Finance. She is a survivor and a results-oriented woman who has built herself a reputation of a ‘bulldog’. Although some observers say she was doing well at the Ministry of Trade and Industry, insiders say the Ministry of Health had to be given someone competent following the departure of all its Ministers who lost the elections. The Ministry has been under constant criticism for failing Batswana under Rev John Seakgosing.  It remains to be seen how Makgato will fare at the controversy-prone Ministry.


Another interesting Ministry is that of Lands and Housing, which has been given to Prince Maele, allegedly to silence him. He has been an outspoken Backbencher and was fearless and often hostile to the Khama regime in his comments in Parliament. He is taking over a dead Ministry that has only itself to serve. It will be interesting to see whether Maele will be able to turn things around following the failure of his predecessors to breathe new life into the Ministry. He holds a Degree in Public Administration and Political Science.


There neglected Ministry of Education, which has been talk of the country, has been given to Mokgweetsi Masisi and Unity Dow. Observers say this is an insult to Dow, who deserved a full Ministry and not to work under a self-centred Masisi whose credibility has been dented by none other than himself.


 Masisi graduated in the fields of Education and Economics-Social Policy and Social Development. Dow, however, insiders say, had never wanted politics but was forced into the game by the BDP which was desperate to wrestle the Kgatleng Constituency from the opposition.


 “Dow was thus identified as a suitable candidate and this is basically a reward to her hesitant ‘YES’ to the BDP. Dumping her would have soiled her rosy reputation,” a source said.
 

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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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