Directorate of Intelligence and Security (DIS) Senior Intelligence Officer, Welheminah Mphoeng Maswabi popularly known as â€œbutterflyâ€ 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.Â
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, Maswabiâ€™s fixed overtime allowance be reviewed, set aside and be declared a nullity because it is â€œunlawful.â€
Furthermore, she seeks that â€œthe 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 Maswabiâ€™s right to privacy and also imposes a new term in the contract of employment devoid of Maswabi consent.â€ Maswabi also wants the decision of the DIS Director General or any officer under him be corrected or set aside and â€œthe full benefits be paid outâ€ 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 Magosiâ€™s predecessor, Isaac Kgosi, had instructed Bank of Botswana (BoB) â€“ which BoB has denied â€“ 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. â€œIt 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,â€ 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.â€œI am further advised by my attorney that in terms of the Public Service Act, in particular, section 35 (3), an employeesâ€™ 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,â€ 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: â€œwe 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.â€
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. â€œIt is consequently that the DG acted unlawfully and his decision is liable to be set aside.â€
The DG in his letter of suspension further directs me that I shall not leave my duty station without prior authorisation,â€™â€™ Maswabi said adding that, â€˜â€˜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,â€ 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.
â€œI therefore see this as a new term of employment being imposed on me and invasive of my privacy and convenience.â€ 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 Butterflyâ€™s March 2020 salary pay slip indicate that Magosi continues to withhold her overtime allowance.Â In the matter, Butterfly is represented by legal wizard Uyapo Ndadi of Ndadi law Firm while the Attorney General represents the DIS and Magosi.
Despite the President Dr Mokgweetsi Masisi and his Namibian counterpart, Hage Geingob giving an impression that the borderline security disputes are a thing of the past and that diplomatic ties remain tight, fresh developments from Namibia suggest otherwise, following Geingod’s close confidante’s attack on Botswana and its army.
Giving a Zambezi region state of the affairs last week, a Geingob-appointed governor of Zambezi region, Colonel Lawrence Ampofu, a retired Colonel in the Namibian Defence Force, former plan combatant during the liberation struggle of Namibia, in a written speech, charged at the BDF and condemned their killings of the Namibians as unacceptable.
“The security situation within our borders remains calm. The incidence of the Botswana Defence Force shootings and wanton killings on the Nchindo Brothers on 05 November 2020 and other 37 Namibian lives lost since independence remain a serious challenge with our neighbor, Botswana.
Our residents living along the Chobe, Linyanti and Kwandu rivers are living under constant threats, harassment, fear, intimidation and killings and such activities are condemned and not acceptable,” he said under the safety and security title.
The attack suggests that Namibia has not bought Botswana’s story. Ampofu was part of the entourage that accompanied Geingob to the three Nchindo brothers and their cousin who were gunned down by the BDF, and is reported to be privy to the details of the unpublished Botswana-Namibia joint investigations report about the killings as a governor or political head of the region which has eight electoral constituencies.
The report contains the sensitive details of how the three Namibians referred as poachers by the BDF – and Fisherman by the Namibian government were gunned down on 5 November last year along the Chobe River. They were Tommy (48), Martin (40) and Wamunyima Nchindo (36), and their cousin Sinvula Muyeme (44).
His views are not really in contrast to his President’s views who also described the BDF as trigger happy in a scripted report to his cabinet.
The Zambezi region is located in the extreme north east part of Namibia and covers a total of 14,667.6 square kilometres. “We share borders with Angola, Zambia to the north, Zimbabwe to the east and Botswana to the South,” he said.
Sampofu was first appointed governor of the former Caprive Region in 2010 by the former Namibian president, Hifikepunye Pohamba and was reappointed as Zambezi governor by President Dr.Hage Geingob in 2015, a term running to 2025.
37 Namibia residents killed by Botswana army so far
Sampofu is a man who continues to insist that Botswana has killed 37 residents of his region. A video posted by the Namibian Broadcasting Corporation (NBC) shows him alleging that at least 37 Namibians were killed by the BDF, after he met with the community at Impalila.
“It is true, the BDF started long ago. As we speak 37 lives have been lost here in Impalila along the Chobe river going to Linyanti and Kwado rivers up to Lizauli. All those families lost their loved ones,” Ampofu said in the video posted by NBC.
It is not known how the BDF, which has maintained their position that the Namibians were engaging in illegal activities of poaching, treats the constant attacks by the Namibian authorities, but they have repeatedly vowed to continue protecting the country’s sovereignty and natural resources.
Botswana’s premier brewer and leading distributor of beer, Kgalagadi Breweries Limited (KBL), this month dragged the government of Botswana to court after President Mokgweetsi Masisi imposed an alcohol ban with immediate effect. KBL labelled the decision as unjustifiable, irrational and that it overrides the rights that are enshrined in the constitution.
This week, Masisi through attorneys representing the government disparaged the case in his written affidavit of KBL’s application, referring to it as frivolous and that it ought to be dismissed with costs on a punitive scale.
In his court papers, Masisi reminded KBL that Botswana is a Republic whose laws find validity from the constitution, and in terms of Section 17 of the constitution the President is empowered to declare a State of Emergency and that it is a common cause that Botswana is under such state.
“It is common course that there is in existence emergency powers (Covid-19) Regulations 2020 as amended from time to time which is solely designed to regulate the Covid-19 pandemic,” he said.
Masisi pointed out that he denies that the application before Court is proper such as to challenge the lawfulness and validity of a regulation made and a notice published in the exercise of a legislative function in accordance with the Emergency Powers Act which empowers the President to make regulations as appear to him to be necessary and expedient for securing public safety.
Furthermore, the President revealed that the decision to ban alcohol sales was not arrived at willy-nilly, but rather that there had been careful considerations that the risks posed by Covid-19 had increased and therefore it was expedient and necessary to suspend all liquor licenses.
Moreover, Masisi denied that the decision to reinstate the ban should be made by the Director of Health Services as indicated by KBL in their nature of the application, “the Director is to cause the notice to be published in the Gazette after consultation with the President.”
Masisi indicated that the role of the Director of Health Services is to publish a regulation made by the President.
He further, reminded KBL that the power to make regulations in a State of Public Emergency in accordance with the EPA lies with the President, “such power includes the amendment of any enactment, suspending the operation of any enactment or modification of an enactment.”
According to Masisi, his decision to ban alcohol sales was based on evidence provided by the Director of Health Services who indicated to him that there was a sudden spike in the transmission of the Covid-19 virus following the reinstatement of liquor licenses.
Another piece of advice tendered by the Director of Health to Masisi was that bars and other liquor outlets were some of the major hotspots in the sense of such being high-risk areas at which the virus spread rapidly.
“Alcohol was one of the major causes of non-compliance with the health protocols that were put in place to control the spread of the Covid-19 virus. Further, there was an indication that more arrests were made on people failing to adhere to Covid-19 protocols more particularly at places where there were gatherings,” he contended.
He pointed out that therefore, it was expedient and or necessary to preserve lives and to reduce the risks of transmissions of the virus to reinstate the suspension of liquor licenses.
Moreover, the President says that it must be noted that he avers that the Director of Health Services is a credible source on matters of public health of which he also accordingly gave due weight to the Director’s advice on deciding to reinstate the ban through the impugned notice.
“I am aware and was always aware at the time of promulgating the regulation complained of that it shall negatively affect some sectors of the economy. However, after due consideration and receipt of advice, I decided to give priority to the safety and health of the nation,” Masisi said.
He presaged KBL that it would not be prudent and in the best interest of the nation to ignore a health emergency such as Covid-19 and gave preference to trading and making of profits by the applicant. “The results would only be catastrophic to the extent that when we emerge from the scourge we would be left with a depleted and ailing nation from Covid-19 and its side effects.”
Furthermore, his written affidavit further pointed out that the decision to reinstate the ban on alcohol was taken notwithstanding understanding and appreciation of the economic hardships that would befall the country.
However, he said he deliberately made the decision based on the evidence provided to him by the Director of Health, whose evidence he believes to be credible to give public/safety and health priority over economic considerations in some sectors.
In making the decision, Masisi states that he was and considered different options including allowing for sale of alcohol consumption off premises, however the evidence he had been provided with suggested that such other alternatives would not achieve the overall objective of securing public safety and health by reducing the risk of the spread of the virus.
“By the time I imposed the ban, alcohol was already being sold for consumption off-premises. This did not work. The information provided to me by the Director and the Presidential Task-Force team demonstrated that consumers purchased alcohol and then loitered and consumed it within the peripheries of bars and other liquor outlets,” he said.
Attached to the affidavit as emphasis, were photographs and videos of Gaborone West, Phase 4 in mid-June 2021, which he explains circulated on social media and was brought to his attention.
“I need not say much about the photos as they depict a crowd exceeding 50 gathered at the parking area of a bar. There is little or no regard to Covid-19 protocols. It was clear to me and my advisors, including the Director of Health Services and members of the Presidential Task-Force team that the total ban of alcohol was necessary to manage the risk of increase in infections, to understand what seems to have led to an increase in the risk of infection when alcohol is present I was advised by the Presidential Task-Force team that scientifically there has been evidence that alcohol narrows physical distance,” he argued.
Masisi says that allegations made by KBL are serious allegations of infringement of fundamental rights yet they fail to state how imposition and reinstatement of the suspension of liquor licenses out of necessity and expediency of the health of the nation infringes on the rights as alleged.
In an embarrassing turn of events that depicts disintegration in government communication on the fight against COVID-19, President Mokgweetsi Masisi and Assistant Minister of Health & Wellness, Sethomo Lelatisitswe gave two conflicting statements on the same matter, same day, just minutes apart.
The Commander-in-Chef told health practitioners and residents in Ramotswa that the COVAX facility has scammed African countries after billions were paid in a crowd funding effort to procure COVID-19 vaccines in bulk.
“We have pumped money as developing countries of the African continent into the COVAX Facility but the returns were not satisfactory, they cheated us,” the President said in Ramotswa.
According to President Masisi, the COVAX facility Vaccine only came in bits and pieces, frustrating the continent ‘s head immunity targets amid rapidly spreading Delta Variant which is currently reversing all progress made by Africa in containing the contagious virus.
“What we are getting is very small portions of the vaccine, they keep telling us that there is shortage of supply, this is not fair, but we have paid in advance, however what can we do, we have no choice but to spend more money and look for other avenues of securing other available vaccines,” he said.
Meanwhile in Gaborone, Assistant Minister of Health and Wellness told Parliament that vaccine from COVAX facility is anchoring Botswana’s vaccination program.
“I am not aware of such information that COVAX facility is not delivering as expected, we are actually bolstered by COVAX facility in this country,” he said responding to a question from Mahalapye West Member of Parliament David Tshere who is also Chairman of Parliament Committee On Health and HIV/AIDS.
“We have received doses as ordered from the COVAX facility, and we are still receiving more, I have not seen that information which is purported to have been revealed by the President, unless its new information, we as the Ministry we are not aware of any frustrations by the COVAX facility,” he said.
COVAX is co-led by the Coalition for Epidemic Preparedness Innovations (CEPI), Gavi and the World Health Organization (WHO), alongside key delivery partner UNICEF.
Its aim is to accelerate the development and manufacture of COVID-19 vaccines, and to guarantee fair and equitable access for every country in the world.
The facility is a global coalition that works to ensure fair and equitable access of COVID-19 vaccines around the world. So far, 190 countries have joined the COVAX initiative, including all 22 countries in the Eastern Mediterranean Region.
The COVAX Facility aims to have 2 billion doses of COVID-19 vaccines available for distribution across the globe by the end of 2021, targeting those most at risk (e.g. frontline health workers) and most vulnerable severe diseases and death (e.g. elderly and people with co-morbidities).
On other vaccination issues President Masisi revealed, still in Greater Gaborone vaccination centre visits, that Botswana has placed orders with Pfizer, a United States vaccine producer noting that they have promised to deliver next year.
Meanwhile, government kick-started phase two of the Covid-19 vaccination program this week, opening up for ages between 30 and 54.
President Masisi revealed that this was done because some elderly were reluctant to be inculcated.
“We can’t take forever trying to convince people to take vaccine, we moved to the next age segments because we cannot afford to have vaccines-which are already in shortage supply to just lie there,” he said.
On Friday, Ministry of Health revealed that it was receiving large numbers of people below the age of 55 lining up to be vaccinated.
In a statement the Ministry of Health said it, “acknowledges the huge turnout that marked the commencement of the Phase two COVID-19 vaccination program”.
Given this high turnout, especially in the Greater Gaborone region, the ministry announced an extension of operation hours in order to serve the huge crowds that had come for vaccination.
Of the nearly 85 000 doses that were being doled across the country as first doses, the majority of the Greater Gaborone vaccination sites were already getting depleted by 1800hrs on 22 July 2021.
As a result of this development, the ministry took a decision to discontinue the extended hours of operation announced yesterday for vaccination sites in Gaborone.
This means that vaccination sites in Gaborone and elsewhere in the country which still have some vaccines, will offer them in the normal working hours and days of the week.
The Ministry says it appreciates the great desire to be vaccinated shown by thousands of citizens and residents of this country and wishes to assure them that it will continue to expedite their vaccination every time vaccines become available. As has been communicated in various fora, more vaccines are expected in August 2021.
As at July 2021, Botswana has so far received 62, 400 doses of AstraZeneca/COVISHIELD bought through the Covax facility, 30,000 doses of AstraZeneca vaccine donated by the Republic of India, 19, 890 doses of the Pfizer vaccine bought through the COVAX facility, 200, 000 doses of the Sinovac vaccine, donated by the Peoples Republic of China and another 200, 000 doses of the Sinovac vaccine bought through bilateral negotiations with Sinovac company in China.
“We encourage Batswana to remain hopeful that although it’s taking longer than anticipated, enough COVID-19 vaccines will eventually arrive in our country. We urge them to always strictly abide by all COVID-19 protocols so that they protect themselves and others from this deadly virus,” the ministry said.