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Butterfly sues DIS Magosi

Directorate of Intelligence and Security (DIS) Senior Intelligence Officer, Welheminah Mphoeng Maswabi popularly known as “butterfly” has this week filed a notice to High Court intending to sue her controversial Director General, Peter Fana Magosi over unlawful breach of her employment contract. 

Maswabi who is currently serving suspension, is seeking the court to review and set aside the decision of Magosi for stopping her overtime allowances and curtailing her freedom of movement by directing that she seeks prior authorisation when leaving duty station. She therefore wants the court to order that the decision of the DIS Director General contained in a letter dated 25th November 2019 and 9th December 2019 stopping the employee, Maswabi’s fixed overtime allowance be reviewed, set aside and be declared a nullity because it is “unlawful.”

Furthermore, she seeks that “the decision of the Director General stating that Maswabi should not leave her duty station, without prior authorisation is unlawful, and ultra vires the constitution of Botswana as it interferes with Maswabi’s right to privacy and also imposes a new term in the contract of employment devoid of Maswabi consent.” Maswabi also wants the decision of the DIS Director General or any officer under him be corrected or set aside and “the full benefits be paid out” forthwith and henceforth.

The development comes after Maswabi was on the 17th October 2019, arrested and charged on allegations of possession of unexplained property, contrary to section 34(1) (b) of the Corruption and Economic Crimes Act (Cap 08:05) of the laws of Botswana as read with section 36 of the same Act, Financing Terrorism, contrary to section 5 (1) (f) (ii) of the Counter-Terrorism Act (Cap08:08) of the Laws of Botswana and false declaration for passport, contrary to section 315 of the Penal Code (cap 08:01) of the laws of Botswana read with section 33 of the same Act.

At the centre of the case are strong allegations that Butterfly was cited as signatory to some shady accounts in which suspicion is that the then President Ian Khama and former spy chief and Magosi’s predecessor, Isaac Kgosi, had instructed Bank of Botswana (BoB) – which BoB has denied – to open three bank accounts in South African banks that were used to loot more than of P100 billions of public funds.

However Butterfly was later on the 22nd November 2019 granted bail by the High Court pending the finalisation of the investigations of the said charges and has since been on suspension on full pay. “It is my submission that the decision of the DG Magosi to stop my overtime allowance is unlawful because the deductions that have not been agreed upon by the employer and the employee are prohibited,” she said in papers seen by Weekend Post this week.

She also added that the decision and the act of the DG in deducting her overtime allowance is unlawful and stressed that it is prohibited by law since she did not consent or authorise him to do it.“I am further advised by my attorney that in terms of the Public Service Act, in particular, section 35 (3), an employees’ salary shall not be withheld during the period while on suspension I submit that since the overtime allowance is fixed, it constitutes my salary and it is not dependent on whether I have worked overtime or not,” she observed.

She further submitted that clause 8.2 of the DIS Conditions of Service does envisage that the overtime allowance may be taken away if the employee is continuously not working overtime. She continued: “we submit that this does not apply to cases of suspensions as an employee on suspension is still for all intends and purposes still employed to do the functions that attract overtime but for the suspension, like in my case, is unable to, because the employer has made it impossible.”

I submit that the suspension should not be prejudicial to me in anyway, Butterfly pointed out. According to Butterfly, even assuming that she is wrong in her interpretation, which is denied, the DG, in law, has no right to unilaterally take away a benefit she hitherto enjoyed without her consent or at the very least without affording her a hearing. “It is consequently that the DG acted unlawfully and his decision is liable to be set aside.”

The DG in his letter of suspension further directs me that I shall not leave my duty station without prior authorisation,’’ Maswabi said adding that, ‘‘I submit that neither my employment contract nor the conditions of service have such a requirement. It is therefore a new term imposed on me. It lacks justification particularly that I am out on bail and the conditions of bail deal with matter of my movement,” she said. Butterfly submitted that Magosi, when she is not in suspension, do not have to account for her personal travels to him nor does she have to seek authority.

“I therefore see this as a new term of employment being imposed on me and invasive of my privacy and convenience.” The background of the case is that on the 25th November 2019, Magosi wrote a letter interdicting Maswabi from performing her duties pending the finalisation of the criminal charges proffered against her by the Directorate of Public Prosecutions (DPP) and was served with papers on the 26 November 2019.

In the said letter it was stated that during the period of interdiction, she was placed on full salary pay and all benefits except overtime allowance. Furthermore the letter stated that she shall not leave her duty station, Gaborone, without prior authorisation. On 29 November, Maswabi wrote a letter to Magosi querying his decision to stop her overtime allowance particularly pointing out that the overtime allowance is protected in the same way as the scarce skills allowance is and calling for the decision to be reversed.

The DG wrote back on the 9th November refusing to turn back on his decision and insisted that she has been relieved from the exercise of the powers and from carrying out duties as an officer and therefore will not be required to work overtime and thus not eligible to earn it.
Despite the decisions of the DIS Director General to withhold her overtime allowance, it was paid with the December 2019 salary as reflected on the salary advice slip.

On the 14th January 2020, Magosi not only withheld her overtime allowance, but also half of her salary and emoluments leaving her with a net pay of P0.00. He salary slip showed that only half of her salary was paid and no other benefits were paid such as scarce skill allowance, plain clothes allowance, special duty allowance, and overtime allowance. She said she was not consulted about the variation and it was done without her consent.

Maswabi then caused a statutory notice to be issued on the 22 January 2020 calling upon the Director General to correct or set aside the decision and pay out her benefits forthwith. Furthermore Magosi on the 25th January accordingly paid out half of her basic salary that was withheld, and further went to the extent of deducting the overtime allowance that had been paid out in December 2019 together with withholding the overtime allowance of the salary of January 2020.

A copy of Butterfly’s March 2020 salary pay slip indicate that Magosi continues to withhold her overtime allowance.  In the matter, Butterfly is represented by legal wizard Uyapo Ndadi of Ndadi law Firm while the Attorney General represents the DIS and Magosi.

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Details emerge in suspected Batswana poachers in Namibia

28th June 2022
suspected Motswana poacher arrested

New details about a suspected Motswana poacher arrested in Namibian and his accomplice who is on the run were revealed when the suspect appeared in court this week.

The Motswana Citizen who was shot and wounded by Namibia’s anti poaching unit is facing criminal charges under criminal case number (CR NO 10/06/2022) which was registered at the Divundu Police Station in the Mukwe constituency of the Kavango East Region on 10 June 2022.

It is alleged that a patrol team laid an ambush after discovering a giraffe’s fresh carcass in a snare wire and hanging biltong.  According to the Charge Sheet, the suspect Djeke Dihutu, aged 40 years, is charged with contravening and transgressions of Nature Conservation Ordinance andcontravening Immigration Act 07 in Mahango Wildlife Core Area, Bwabwata National Park. Dihutu’s first court appearance was on the 17th of June 2022, Rundu and it was postponed to the 07 July 2022. He is currently hospitalized in hospital under Police Guards.

Commenting on this latest development, the Namibian Lives Matter Movement National Chairperson Sinvula Mudabeti applauded the Namibian Anti Poaching Unit for its compliance with what it called the universal instrument on the Code of Conduct for Law Enforcement Officials adopted by the United Nations General Assembly resolution 34/169.

“We are aware that the duties of the police carry a great deal of risk, but our police has shown that they have a moral calling and obligation to protect even foreigners suspected of serious crimes on Namibian soil,” said Mudabeti.

According to him, whereas the Botswana Police Service, the Botswana Defence Force (BDF) and Directorate of Intelligence Service (DIS) have “very low moral ethics, integrity, accountability and honesty, the Namibian security agencies has shown very high levels of ethical leadership in the discharge of their duties even under duress.”

He said Namibian’s anti poaching unit has exercised one very important value, that is, the use of force only when it is reasonable and necessary. Mudabeti said this is in harmony with international best practices as enshrined in Article 2 of the UN instrument on law enforcement conduct, “In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

Our police have protected the life of a Botswana poacher and accorded him dignity, which is very foreign to our Botswana counterparts,” he said. He said article 3 of the same instrument above, calls for Law enforcement officials to use force only when strictly necessary and to the extent required for the performance of their duty.

“This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of suspected offenders, no force going beyond that was used by our Police,” he said.

Furthermore, Mudabeti said, whereas the universally accepted norm of the law of proportionality ordinarily permits the use of force by law enforcement, it is to be understood that such principles of proportionality in no case should be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.

“Our police have used force proportional to the situation at hand. Great work indeed! Article 6 urges law enforcement officials to ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required,” he said.

Mudabeti said the Botswana poacher was immediately taken to hospital whereas the Nchindo brothers who were captured on Namibian soil, beaten, tortured and executed while pleading to be taken to the hospital we left to die.

“The Namibian Doctor gave evidence in court that Sinvula Munyeme’s lungs showed signs of life (during the autopsy) and that he could have survived if he was accorded immediate medical assistance in time but was left to die while BDF soldiers looked and possibly ignored his cry for help,” he said.

Mudabeti said unlike in Botswana where there are no clear separation of powers between the BDF, Botswana Police Service, Department of Intelligence and their Directorate of Public Prosecutions,” we have a system that allows for checks and balances and allows our people and foreigners who are found on the wrong side of the law to be accorded the right to a fair trial.”

He said Botswana citizens are treated with dignity when apprehended in Namibia and not assaulted, tortured and executed. “We are a civilized country that respects international law in dealing with non-Namibian criminals. The Namibian Police have not mistreated the Botswana poacher but have given him the benefit of the doubt by allowing due processes of the law to be followed,” he said.

He added that, “We are a peace loving nation that has not repaid Botswana by the evil that Botswana has done to Namibia by killing more than 37 innocent and unarmed Namibians by the trigger happy BDF.” He concluded that, “Our acts of mercy in arresting Botswana citizens should never be mistaken for cowardice.”

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Gov’t, Unions clash over accommodation

28th June 2022
accomodation

The government has reportedly taken a decision to terminate provision of pool housing and subsidy for civil servants as it attempts to trim the public service wage bill.

This emerges in a dispute that is currently before the Labour Office headquarters lodged by unions representing thousands of civil servants across the country. This publication understands that the decision to cease providing pool housing and rental subsidy for public officers is part of proposals that government put on the table during its negotiations with public service unions in order for it to adjust salaries.

A letter from Labour Office addressed to the Directorate of Public Service Management (DPSM) shows that the directorate is cited as the First Respondent. The letter is titled, “Dispute lodged: Cessation of provision of pool housing and subsidy for pubic officers.”

“This serves as a notification and requirement to a mediation hearing,” the letter informed DPSM. According to the letter, the Botswana Teachers Union (BTU), Botswana Sectors of Educators Trade Unions (BOSETU) Botswana Nurses Union (BONU) and Botswana Land Board &Local Authorities &Health workers Union (BLLAHW) who lodged the complaint are cited as the Applicant.

“Please come for mediation hearing. The hearing will be conducted by Mr Lebang. The hearing is scheduled for date/time 29th June 2022, 09: 00HOURS at Block 8 District Labour Office, Gaborone. Please bring all relevant documents,” reads the letter in part.

According to a document described as a proposal paper on the negotiations on salaries and other conditions of employment of public officers by the employer (government), the government did not only propose to stop providing accommodation to civil servants but also put a number of proposals on the table.

The proposal papers states that the negotiations (which have since been concluded) cover three government financial years; 2022/23, 2023/24 and 2024/25. The government proposed an across the board salary adjustments as follows; 3% for the financial year 2022/23 effective 1st April 2022, across the board salary adjustment of 3.5% for the financial year 2023/24 effective 1st April 2023 subject to performance of the economy and across the board salary adjustment of 4% for the financial year 2024/25 effective 1st April 2024 subject to performance of the economy.

The government also proposed phasing out of retention and attractive (Scarce Skills) Allowance with a view to migration towards clean pay, renegotiate and set new timelines for all outstanding issues contained in the Collective Labour Agreement, executed by the employer and trade unions on the 27th August 2019, to ensure proper sequencing, alignment and proper implementation.
The government also proposed to freeze public service recruitment for the 2022/23 financial year and withdraw the financial equivalence of P500 million attached to vacancies from Ministries, Department and Agencies (MDAs).

Another proposal included phasing out of commuted overtime allowance and payment of overtime in accordance with the law and review human resource policies during the financial year 2022/23, 2023/24 and 2024/25.

The government argued that its proposals were premised on affordability and sustainability adding that it was important to underscore that the review of salaries and conditions of service for public officers was taking place at a time when there were uncertainties both in the global and domestic economies.

“Furthermore there is need to ensure that any collective labour agreement that is concluded does not breach the fiscal deficit target of 4% of GDP,” the proposal paper stated. The proposal paper further indicated that beyond salary adjustments, the Government of Botswana is of the view that a more comprehensive consideration “must be taken on the issue of remuneration in the public service by embracing principles such as total rewards compensation which involves taking a fully comprehensive and holistic approach to how our organization compensates employees for the work.”

The proposal paper also noted that, “Clearly, the increase in salaries and changes to other conditions of service which have monetary consequences will further increase the proportion of the budget taken by salaries, allowances and other monetary based conditions of services.”

“The consequential effect would be a reduction of the portion that can be used for other recurrent budget needs (e.g. maintenance of assets, consumable supplies such as medicines and books) and for development projects,” the proposal states.

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BPF NEC probes Serowe squabbles

28th June 2022
BPF

Opposition Botswana Patriotic Front (BPF) National Executive Committee will in no time investigate charges party members worked with the ruling Botswana Democratic Party (BDP) membership to tip the scales in favour of the latter for Serowe Sub-council Chairmanship in exchange for deputy seat in a dramatic 11th hour gentleman’s deal, leaving the ruling party splinter under the political microscope.

In a spectacular Sub-council election membership last Thursday, the ruling BDP’s Lesedi Phuthego beat Atamelang Thaga with 14 votes to 12 for Serowe Sub-council Chairmanship coveted seat and subsequently the ruling party’s councilor Bernard Kenosi withdrew his candidacy in the final hour for the equally admired deputy chair paving the way for Solomon Dikgang of BPF, seen as long sealed ‘I scratch your back and you scratch mine’ gentleman’s agreement between the contenders.

Both parties entered the race with a tie of votes torn between 12 councillors each, translating for election race that will go down to the wire definitely. But that will not be the case as two BPF councilors shifted their allegiance to the ruling party during the first race for Chairmanship held in a secret ballot and no sooner was the election concluded then the ruling party answered back by withdrawing its candidacy for the deputy chair position to give BPF’s Dikgang the post on a silver platter unopposed.

BPF councilor Vuyo Notha confirmed the incident in an interview on Wednesday, insisting the party NEC was determined to “investigate the matter soon”. “During the race for the Chairmanship, two more BPF voted for alongside the ruling party membership. It was clear Dikgang voted alongside the BDP as immediately after the vote for Chairmanship was concluded, Kenosi withdraw his candidacy to render Dikgang unopposed as a payback,” Notha added.

As for the other vote, Makolo ward councilor will not be drawn for the identity preferring instead to say: “BPF NEC will convene all the councilors to investigate the matter soon and we will take from there.” Notha will also not be drawn to conclude may be the culprit councilors could have defected to the ruling party silently.

“If they are no longer part of us they should say so and a by-election be called,” was all he could say. As it stands now, the law forbids sitting Councilors and Parliamentarians from crossing the floor to another party as to do so will immediately invite for a new election as dictated by the law. Incumbent politicians will therefore dare not venture for the unknown with a by-election that could definitely cost their political life and certainly their full benefits.

Notha could also not be dragged to link the culprit councilors actions to BPF Serowe region Chairperson Tebo Thokweng who has silently defected to the ruling party and currently employed by the party businessman and former candidate for Serowe West Moemedi Dijeng as PRO for the highly anticipated cattle abattoir project in Serowe.

“As for Thokweng he has not resigned from the party but from the region’s chairmanship,” he said. WeekendPost investigations suggest Thokweng is the secret snipper behind the recruitment drive of the votes for the elections and is determined to tear the party dominance in Serowe and the neighbouring villages asunder including in Palapye going forward.

This publication’s investigations also show BPF’s Radisele and UDC’s Mokgware/Mogome councilors are under the radar of investigations for the votes-themselves associated with the workings and operations of Thokweng.

“NEC will definitely leave no stone unturned with their investigations to get into the bottom of the matter. Disciplinary actions will follow certainly,” Notha concluded, underscoring the need to toe the party line to set a good precedent. For the youthful councilor, the actions of his peers has set a wrong precedent which has to be dealt with seriously to deter future culprits.

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