Members of Parliament (MPs) for the ruling Botswana Democratic Party (BDP), acting in cahoots with opposing political parties legislators, on Tuesday circumvented the wheels of justice by changing the recently passed law on Declaration of Assets and Liabilities in order to avoid facing imprisonment.
The deadline to have declared was this week on the 20th February 2020 and contravention of the Act attracts a fine of P20 000 or an imprisonment term of two (2) years or both. However, following signal from government top officials, the MPs on Wednesday moved swiftly to amend the law at the 11th hour – two days before deadline as prescribed by the law – to avoid a fine of failure to declare assets. The new amendments have provided a relief not only to MPs but to Judges and other high ranking government officials.
President Mokgweetsi Masisi assented to the law on 22d October 2019 when it commenced into law – a day before the hotly contested 2019 General Elections. The Declaration of Assets and Liabilities Act was brought to parliament in a strange manner and enacted on the 2nd of September 2019. The hurried manner was largely seen as luring voters to elect the ruling BDP by way of rewarding it for having brought the crucial law which has been on the cards since 1999, when it was first tabled in parliament by former Minister of Health, Joy Phumaphi.
When the law finally passed last year, the implementation meant that Ministers, Judges, MP’s and top government officers (at E band and above) are now mandated to declare their assets and failure means defiance of the law. Before amending the law, Section 8 (1) as read with section 7 (5) of the Act, provided that a person subject to the Act shall make a declaration in the prescribed form within 60 days after – a) the coming into operation of this Act; b) his or her appointment or assumption of office or; c) the taking and subscribing before the National Assembly, of an oath of allegiance.
After amending the Act this week, Clause 2 of the Bill was amended by inserting, immediately after section 8 (which provides for when declarations are to be made), a new section; being section 8a) now provides “for an extension of time by the Minister.”The section now provides that “the Minister may, by order, extend the time provided therein (60 days), by any period that he or she considers necessary or expedient, provided that such period of extension shall not exceed twelve months.”
Minister of Presidential Affairs, Governance and Public Administration, Kabo Morwaeng thanked all the MP’s from across the political aisle to having agreed with the amendment and passed the law. “Let me thank you MPs for agreeing with this Bill wholeheartedly. We did this both as the ruling party legislators together with the opposition. We were all in agreement. Let me also point out that we are doing this in the interest of the whole nation and not for the selected few,” he said this from the floor of Parliament.
Meanwhile, when presenting the Bill, Morwaeng said the Declaration of Assets and Liabilities Act of 2019 was intended to complement existing legislation by regulating declaration of assets and liabilities of MPs, Senior government officials, Judiciary and officers employed by public bodies and private enterprises – “to monitor their assets and liabilities for purposes of detecting corruption, money laundering and acquisition of property from proceeds of crime.”
He was at pains in explaining that although the Act came into effect on the 22nd of October 2019, MPs, Ministers and Judges failed to declare not once but on two occasions. “The Act came into effect on the 22nd of October 2019. As a result declarations should have been submitted by 22nd of December 2019. But due to ‘administration challenges’ however, the declaration form was only prescribed on the 20th December 2019,” he stated.
He also attributed the breaking of the law to the late prescription of the form and the declaration which only, at the time of presenting this amendments, had about 2 days before the lapse of the declaration period. “Even assuming that 60 days declaration period should be reckoned from the time that the form was prescribed, only about a day is left before the period expires [20th February],” he added.
Morwaeng justified that though the focus currently is building the necessary administrative capacity to ensure effective implementation of the provisions of the Act, “there exists some level of discomfort among potential declarants that the penalties for the late submission of the declaration could be levied on them”.
BDP and Opposition MP’s show support for the controversial amendments
On his part, UDC legislator for Okavango, Kenny Kapinga told Parliament that he is in full support of the amendments as put forward by the Minister. “Personally, I don’t think we should be delaying with this issue. All that the Minister is asking for is to be authorised to extend the period as he has prescribed in the proposed amendment. I don’t think there is any reasons to oppose such a proposal. So I stand to support the proposed amendment and think we can minimise the debate on this issue by just passing this thing,” he said.
Mmusi Kgafela, Mochudi West BDP legislator also had this to say, “As MPs we make laws for peace building and harmony and enhance the smooth running of the country. If we don’t give the Minister permission to extend the period of declaration, many of us will be criminals, tomorrow. This will extinguish the peace that has been reigning in the country.” In addition Paulson Majaga who is Nata/Gweta BDP MP also agreed with Morwaeng’s amendments.
“We are the law makers and so it is upon us to pass and review all laws as we see fit. So that whatever law we do, for today and the next generation, and for the nation they must be happy. Law must be carefully passed because they take long to be amended. We have always agreed that there is need for such declared law,” he said. According to another BDP law maker, Ignatius Moswaane, the issue is not about MPs changing the law to benefit them per se.
He explained: “the main reason is, in which I support you Minister, is that this is not intended to benefit only MPs but also others like Judiciary, Ministers and top government officials which they are supposed to declare. But we are looking at the loopholes of the law which is unsettling – to avoid jailing the whole nation. One of them include that some assets include having valued them which may be a challenge for some because of lack of sufficient money. So others must not be jailed because of this even if they have good intentions.”
Moswaane further said that this law was not made for elections as some want to posit. “It was necessary as the nation has been waiting for it for years. It is what Batswana wanted,” he stressed. Meanwhile Leader of Opposition (LOO) and UDC Vice President Dumelang Saleshando also was in agreement with the amendments; “I support the request by the Minister.” He however pointed out his reservations pertaining to the law: ‘‘but I want to just state a few reservations,’’ he said.
“I am not a fan of Bills that come here on urgency. You were appointed Minister early November. You should have anticipated some of these things. Clearly within the Ministry someone slept on the job and now we have to mop up what is essentially a mess not of our doing,” he highlighted. The Maun West MP explained that the law making process in Botswana has a number of safe guards to make sure that MPs do not find themselves in the situation they found themselves in on Tuesday, indicating that, “one of those is that after a Bill has been passed by the house, the President is allowed some time to reflect and consult further before he assents to it.”
He added: “but you know this particular one was one of those laws that were rushed in the race to the General Elections. And it doesn’t surprise us that it was actually only assented to on the 22nd October, a day before elections. There was a rush for the law to assist with campaigns. Now we are here in a mess.” Saleshando said he hopes that in future, they do not take pride in saying that Parliament passed a whole number of Acts in one night and claim that it is good for productivity because if they do that, they will end up in such scenario.
He continued: “One gets the impression that the only difficulty with the law is the looming deadline. I think you [Minister Morwaeng] need to be more open to the public and the nation and let the nation know that there are essentially clauses in the law that require of us to look them again. Nothing to do with the deadline. But because it’s simply not implementable.” The Leader of Opposition further highlighted that if Morwaeng does not state that when he comes back to Parliament, even if its six months later with a set of new proposals to amend, he is going to raise suspicions about the real motive.
“Was it just the deadline? If it was the deadline we got the extension, where is the desire to amend now coming from? So I think it will be better in your response Minister, that you disclose to the nation that it’s much more than the deadline because also that you plan to amend because some of the clauses make it almost impossible for the law to become operational,” he said.
“I want to state it upfront that when it gets to that point where the law or where you will be presenting the amendments, we, from our side we suggest that the Bill to amend be committed to a Special Select Committee that will engage with the larger public about what should go into the law or [what] should not be part of it.”
For Saleshando, it is critical because to be honest they are an interested party and essentially they are conflicted. “If you do not want to be seen by the public, which is highly suspicious of politicians about the assets they have and their willingness to disclose, it will be very critical that the amendments be subjected to a Special Select Committee which will consult more broadly on the law,” Saleshando emphasised.
The Tshesebe-Mosojane-Masunga road estimated costs stand at P500 million, the tender which was awarded to Bash Carriers in 2017 has not taken shape four years after the project was commissioned.
Tshesebe-Mosojane-Masunga road when it was commissioned, was estimated at P500 million in value, this included construction of 22.50km of the two lane carriage way and 28.70km of access roads including associated bridge works, cross drainage works, storm water drainage works and relocation of services.
When it was first tendered the contract was awarded to Bash Couriers but was terminated after it was alleged that the contractor failed to deliver. It was said that Bash Couriers Construction Company was lagging behind schedule.
This publication visited the sites of Tshesebe-Masunga road last year December and it was evident that the project was at a standstill as deserted machinery on site could be seen with the gravel road also in a devastating state.
Information revealed then indicated that there had been issues of mining rights for aggregates, availability of structural engineers and manpower and a criteria for awarding tender to the specific company when the contract was terminated.
In 2016, as part of the ESP projects, government funded the 25 kilometres (Km) road project to link Tshesebe and Masunga.
Construction of the road, which also connects some of the villages within the district, commenced early in 2016 and was scheduled to be completed within 18 months.
The company had done nothing when their contract was terminated with allegations that it never had the capacity to carry out the project in the first place.
The major ESP project had ultimately robbed a lot of people potential employment when it succumbed to termination.
It was then that the government restarted the tendering process.
The project was awarded to Bango Trading Company and Zebra Construction in a joint venture at a value of P319 Million Pula.
However, information reaching this publication from the Ministry of Transport and Communications confirms that indeed there are no current works carried out on the Tshesebe Masunga road.
Responding to a questionnaire sent to them by this publication through their Public Relations Officer Doreen Moapare, the Ministry indicated that the Tshesebe-Masunga road project is before the courts therefore their response is limited by such a pending outcome.
“As a background the project had been awarded to Bash Carriers at a contract sum of P400, 044,365.68 to begin the works in May 2017 and complete the project in January 2019. Scopes of works included 51.2km main road inclusive of seven access roads. Due to non-performance, Bash Carriers contract was terminated on the 25th of September 2018. ”
Further, Moapare indicated that upon termination of Bash Carriers, a process began to ensure that the development project completes.
Five companies went for a selective tendering bid which she listed as; Lobkom Investments (Pty) Ltd, Landmark (Pty) Ltd and Truck Hire (Pty) Ltd Joint venture, ACE /Excavator Hire (Pty) Ltd and Asphalt Botswana (Pty) Ltd Joint venture, Cul De Sac, Bango Trading and Zebra Construction Joint venture.
“Some companies have since queried the results of the tendering adjudication landing the issue in the courts. We are currently awaiting a ruling expected in February/March 2021, and this will determine the course of action thereafter,” concluded Moapare.
At one point last year, reports indicated that Bango Trading Construction Company had faced raiding by the Directorate on Intelligence and Security, Botswana Police and Botswana Unified Revenue Services, with allegations that there was an emerging pattern targeting overscheduled construction companies with powerful political connections.
Bango Trading Managing Director, Moffat James, was reported to have had close links to former DIS Director Isaac Seabelo Kgosi. Bango Trading and Estate Construction Company which has obtained close to P 1, 5 billion government contracts under former President Lt Gen Ian Khama has been the subject of a parliamentary probe due to the many government contracts awarded to them.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.