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The Gaolathe/Mmolotsi faction should form a new party

Ndulamo Anthony Morima
EAGLE WATCH

In this article I argue that if the Umbrella for Democratic Change (UDC) is to stand any chance of winning the 2019 general elections the Botswana Movement for Democracy (BMD)’s faction led by Honourable Ndaba Gaolatlhe should split and form a new party as early as now.

Before presenting my arguments it is apposite that I give a brief back ground of the BMD saga.    Sometime in April this year violence broke during a National Executive Committee (NEC) meeting which had been convened to discuss the postponement of the Youth League congress.

Following that, despite the NEC’s decision to postpone the Youth League congress, it was held, allegedly at the instance of the faction led by party President, Honourable Ndaba Gaolatlhe, and his deputy, Honourable Wynter Mmolotsi. This resulted in suspensions and disciplinary proceedings being waged against those who attended the Congress being Honourable Gaolathe, Honourable Mmolotsi, former Youth League president, Phenyo Segokgo, former National Organizing Secretary, Kabelo Mahupe, Pako Keokilwe, former Women’s League president, Joyce Mothudi, and Harriet Rampa.

It is common knowledge that these did not attend the disciplinary hearings as a result of which all of them except Kabelo Mahupe were expelled from the party. It is also worth mentioning that none of them appealed the NEC’s decision within the stipulated fourteen (14) days in terms of clause 37.25 of the BMD constitution. It is also common knowledge that when the Gaolathe/Mmolotsi faction tried to attend the party Congress in Bobonong, violence ensued, resulting in the faction retreating to hold their Congress elsewhere while the Modubule/Mangole faction remained at the designated venue.

The two factions elected their leadership, a situation which has resulted in the BMD having two NECs, one led by Honourable Gaolathe while the other is led by Advocate Sidney Pilane. Reportedly, both NECs have since written to the UDC seeking recognition. I now present the case for the need for the Gaolathe/Mmolotsi faction to split from the BMD and form a new party. Firstly, I address the question as to why it is the Gaolathe/Mmolotsi faction that has to split and form a new party.

In my view, though the Modubule/Mangole faction is not blemishless, the Gaolathe/Mmolotsi faction is tainted with illegality in many respects. Firstly, the NEC’s decision to expel its leaders is likely to be upheld by the courts. As members of the BMD, who are subject to the BMD constitution, the suspended leaders had an obligation to attend the disciplinary hearings held by the Disciplinary Committee (DC) regardless of the objections they may have had. If they had objections, e.g. about the charges or the composition of the DC they had several lawful avenues to pursue. They could have made written representations of such to the DC before the hearing in which case the DC would have had a legal duty to consider the submissions before making any determination.

In this instance, if the DC could have decided to proceed with the disciplinary hearing without due regard to the submissions and/or objections the suspended leaders had the option of making a court application, even on urgent basis, to interdict the disciplinary hearing and get directions from the court. Alternatively, they could have attended the disciplinary hearing and, at a preliminary stage, made such submissions and/or objections to the DC. If the DC had disregarded such submissions and/or objections, they still had the option of interdicting the disciplinary hearing.

Also, if the DC continued with the disciplinary hearing in wanton disregard of the submissions and/or objections they had the option to make a court application to have the findings of the disciplinary hearing set aside in which case the disciplinary hearing could later be held according to the terms set by the court. Not only that. Even after the DC made its findings, which were upheld by the NEC, the suspended leaders still had several lawful options. They had the option of, within fourteen (14) days, appealing the decision to expel them in terms of clause 37.25 of the BMD constitution.

They also had the option of making a court application, even on urgent basis, to set aside the DC’s as well as the NEC’s decision. Their failure to prosecute their defence and to appeal the NEC’s decision is, in law, an acquiescence of their guilt and it is likely to be upheld by the courts. Secondly, the Modubule/Mangole NEC is likely to be upheld by the courts. Inarguably, the NEC had the constitutional right to call the Congress. If the Gaolathe/Mmolotsi faction had issue with that they could have made a court application to interdict the Congress.

In the same application they could have prayed to the court to give directions on how the Congress should be held. Such directions could have included such issues as delegates’ validation, the chairing of the Congress and the conduct of the elections for the NEC. The mere fact that they first attempted to attend the Congress on the date and at the venue set by the NEC the Gaolathe/Mmolotsi faction effectively accepted that that was the lawful Congress. The Congress which they later held fails to satisfy the requirements of legality in many respects.

Firstly, it had not been called, through a competent statutory notice, by the NEC in terms of clause 13.4 of the BMD constitution. Consequently, it cannot be said that there were delegates who attended the Congress since competent delegation to a Congress can only flow from a competent statutory notice. Secondly, because, in law, it cannot be said that there were delegates to the Congress, no decision, including the decision to hold the Congress and to conduct the elections, can stand the test of legality. Thirdly, the purported NEC members who presided over the Congress were illegitimate.

This is because they were not members of the BMD owing to the decision to expel them which decision had neither been set aside by the National Disciplinary Committee of Appeal (NDCA) nor the courts. In my view, the Gaolathe/Mmolotsi faction’s reported plans to approach the court on urgency to set aside the Modubule/Mangole NEC are likely to be in vain. Firstly, the courts are unlikely to agree to hear the case on urgency since no urgency in fact exists.

The Congress was held more than two (2) weeks ago. The question is: why did they wait this long to approach the courts? They probably waited this long because their legal advisors have advised them that they have no prospects of success. But even if the Gaolathe/Mmolotsi faction may be heared on urgency or in the normal course it is unlikely to succeed on the merits. In my view, they relied too much on the majority they thought they had and hoped they will be reinstated and win the elections.

As a result, they sat on their rights and it may be too late to enforce such rights. To put is simply, the Modubule/Mangole faction outmaneuvered them both tactically and legally. While some remain hopeful that the two factions may reconcile I am of the view that there is no viable path to true and lasting reconciliation. True and lasting reconciliation would require at least two paths. One is setting aside the decision to expel the Gaolathe/Mmolotsi leaders.

This would mean Honourable Gaolathe remains as President with Honourable Mmolotsi as his deputy. But, can Advocate Pilane agree to give up his hard won presidency, especially in view of the 2019 general elections where there is hope that the UDC may win? I believe he cannot. Neither can his deputy, Dr. Tlamelo Mmatli, Chairman, Nehemiah Modubule, and Secretary General, Honourable Gilbert Mangole. They have fought so hard that they have nothing more to lose.

It should be remembered that it is the Gaolathe/Mmolotsi faction which was behind the effort to bar Advocate Pilane from rejoining the BMD. How can Advocate Pilane trust that they will not use the Congress to terminate his membership if they are returned to power? Also, the level of mistrust between the factions is so high that they cannot reasonably be able to work together. How do you work with someone you have accused of being a spy for the Directorate on Intelligence and Security Services (DISS)?

The other path is the nullification of both Congresses and the calling of another Congress during which fresh NEC elections are held. If the Congresses are nullified who becomes president, deputy president, chairman and secretary general in the interim? Which faction can agree that the other presides over the Congress? Who can risk losing elections during the newly convened Congress?

Can either Honourable Gaolathe or Advocate Pilane accept any reconciliation deal in terms of which he will not be president? Can people who have failed to reconcile their differences since the 2015 elective Congress reconcile now after such a bruising fight?
Though reconciliation is a noble thing to do the relationship between the two factions has broken down so irretrievably that the only viable thing to do is for the BMD to split and for a new party to be formed. For the reasons advanced above it is the Gaolathe/Mmolotsi faction which should leave and form a new party.

After all the Gaolathe/Mmolotsi faction is said to have the support of most of the branches. If this is true, a split will leave the Modubule/Mangole faction as an empty shell which will collapse or dwindle into insignificance. Of course, it is Modubule/Mangole which will retain the constitution, the name, the logo, the slogan, the party colors and the bank accounts, but what good are these without the members? In time, they will dissipate into insignificance.

The Gaolathe/Mmolotsi faction should not worry about whether or not they will be admitted into the UDC after forming the new party. Their numbers and party organization will compel the UDC to admit them. If this happens the new party may, in the remaining two years, regroup and give the UDC a realistic chance to wrestle state power from the ruling Botswana Democratic Party (BDP) in 2019.

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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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