A local company, Drift In Investments (Pty) Ltd has dragged Botswana Power Corporation (BPC) before Justice Modiri Letsididi at Lobatse High Court. Through an urgent application, the company wants the state-owned power utility to show cause why certain orders should not be made final.
The Drift In Investments wants BPC to be ordered, interdicted and restrained from proceeding any further, with the award of tender no 4142/20 for various meters pending; the finalisation of the Applicant’s application for review of the respondent’s (BPC) decision to annul the tender and the finalisation of the Applicant’s application for review which awaits hearing.
In February this year, Drift In Investments submitted a bid to be awarded supply and delivery of single (1) phase and three (3) phase integrated GPS based STS prepayment smart meters with open standard communication protocols that was advertised as tender number 3890/19. The tender in question was an open tender, which means all interested bidders could bid for it, including Drift In Investments.
The bid was duly evaluated and adjudicated by BPC’s procurement committee, the Executive Procurement and Tender Committee. Such evaluation and adjudication were preceded by the recommendations of the best evaluated bidder, who will proceed to sign a contract to offer such services. According to Drift In Investments’ founding affidavit “attached hereto is a copy of the evaluation and adjudication report which placed the Applicant as the best bidder, hence the legitimate expectation, that mutatis muntandis, that it would sign the contract”.
Drift In Investments was the best bidder and was approved to be awarded to the tender at BWP 14 442 660, to supply and deliver a single phase split smart meters. Furthermore, Drift In Investments was awarded for the supply and delivery of Customer Interface Units (CIU’s) for an amount of P10 343 070.00. “When these recommendations and approvals were to be effected, in a rather strange turn of events, the respondent somersaulted and nullified the tender. On minutes from the EXCO Procurement and Tender Committee, a request was made to the aforesaid committee to nullify the tender and bring it back as a selected tender,” court papers indicate.
The reasons stated were that the tender was cancelled because “the Corporation has taken a position to directly work with the reputable manufactures/ suppliers of smart meters that have the necessary expertise required in the implementation of a SMART GRID SOLUTION that the Corporation is embarking upon”. The nullification was granted, and time was not wasted in listing the bidders for selective tendering. One of the listed bidders for manufactures/ suppliers of the split smart meters is Landis & Gyr which had been listed as the supplier to the Drift In Investments in the nullified tender.
BPC had commended the bid by Drift In because it had the above stated company (Landis & Gyr). “Drift In split smart meters sourced from Landis & Gyr have been supplied to BPC before and the performance is good. Besides the split smart meters, Landis & Gyr has got a good performance record also on the Maximum Demand (MD) meters and ordinary non smart meter BEC previously supplied to BPC for quite a number of years”.
According to the founding affidavit it came as a surprise then on the 22nd May 2020 when Drift In Investments was given a letter dated 18th May 2020 which corroborated the aforestated minutes that the said tenders were nullified. The letter reads, “Please be advised that at its sitting of the 11th May 2020, the EXCO Procurement and Tender Committee approved the recommendation to nullify the above tender. We wish to take this opportunity to thank you for showing interest in doing business with the Corporation and assure you of our cooperation at all times”.
The founding affidavit contend that there were no basis whatsoever for cancelation of the tender which was floated publicly to a select tender when all the requirements had been met, only to turn around and chuck the bidders. According the founding affidavit the cancellation was unlawful on the reason that; the procurement in BPC is done through a three tier system. It passes through evaluation, and the evaluation committee makes recommendations to the adjudication system, ultimately reaching the board for certain tenders.
Again there are various boards dealing with various tenders varying in the amounts. Each level of evaluation has a limit to the tender it can evaluate based on the value of the tender. The present tender that the applicant is querying or had made a bid for, amounted to more than 10 million Pula. From its own admission, and the papers filed of record, the evaluation was carried out by the Executive Procurement and Tender Committee.
Drift In Investments also argues that in terms of the regulations of the Respondent of Procurement, the threshold for the Executive Procurement and Committee (EPTC) are amounts between P500 000.00 to P3.5 million. The tender having been in excess of 10 million, the EPTC clearly stepped out of its mandate. It was not competent to deal with tender by adjudicating the same, therefore acting ultra vires their mandate/ authority. “Such a decision is liable to be reviewed and set aside as it is unlawful, irrational and illegal.
I reiterate my averments further that save via this present Urgent Application, there is no facility under our law to obtain a stay execution of the Tender herein whilst the Application asserts its challenge against the adjudication of the same”. While appearing before Justice Modiri Letsididi on few weeks ago, attorneys representing BPC from Armstrongs Attorneys said they were only served with court papers in the morning therefore pleaded with the court to be given some time to prepare and file their opposing affidavit.
Both lawyers met briefly and agree that it was short notice and that the court set a new date where the urgent matter and the review application will be heard. Justice Modiri Letsididi advised that the new rule states that all matters dealing with tenders by nature are urgent because they are dealing with a lot of money that affects the economy.
Earlier on, BPC attorneys had urged that the tender in question is a different tender from the initial one something that was denied by the defence lawyers. The matter has been ordered a status quo while the new dates were set for 6th November 2020 while the court will hear both the urgent matter and the review application.
The much-anticipated opposition unity talks that will see Umbrella for Democratic Change (UDC) engage Botswana Patriotic Front (BPF), and Alliance for Progressives (AP) are expected to kick off any time from now.
According to informants, the talks, which were preceded by-elections negotiations, aim to be as inclusive as possible. As the talks start, the UDC, composed of Botswana National Front (BNF), Botswana Congress Party (BCP) and Botswana People’s Party (BPP), insist on retaining its preferred model of Umbrella; on the other hand, the BPF is proposing a PACT; and AP is in favour of an alliance model.
BPF is reportedly sceptical on the umbrella model and wants cooperation with the flexibility to allow other parties to join hands with UDC but without necessarily contesting elections using UDC symbols and colours.
BPF, which is currently the fastest-growing party, seems to be focused on self-actualization, self-preservation and securing institutional capacity in case of any political calamity. Although often profitable, cooperation politics can often leave individual political parties battered by political events and weakened beyond meaningful survival.
Discussions with some BPF members suggest that the party has big ambitions and harbour serious intentions of taking the BDP by its horns-all by itself-one day. “The position by some of our leaders is that the future of the UDC remains uncertain. The position and advice are that we should not put all our eggs in one basket. And the party elders think the pact model of cooperation is the safest under prevailing circumstances. Some, however, are worried that we should not overestimate our worth despite being the fastest-growing party in the country.
However, the matter is yet to be concluded once we receive the official invite,” revealed a BPF member of the NEC. Asked about the specifics of the pact idea, another high ranking party official revealed that the party Patron, Lt Gen Ian Khama and his brother Tshekedi Khama are among those who are for the election pact model.
BPF Spokesperson Lawrence Ookeditse has earlier this year told this publication that: “We have not settled on a model yet.” He also added that as a party, they are ready and willing to work with UDC, “but we will have our thoughts on how the cooperation or the talks should transpire, and they too will tell us their preference, and we will sit on the table to see how best to work together”.
AP heads into these negotiations with proposals of its own. On the model part, AP has expressed flexibility but want its partners to consider other models. AP believes that beyond the umbrella model, the coalition could also have a matrix to ensure that opposition parties select the best candidates for parliamentary and council seats.
AP, a splinter party of the beleaguered Botswana Movement for Democracy (BMD), asks for the constituencies allocated to BMD in the previous talks before it was kicked out on the eve of the 2019 elections.
AP, which garnered a popular vote of under 40 000 in the 2019 general elections, is confident that it brings tremendous value to the UDC, and state power could be within reach in 2024. To reconcile the various interest of political parties, the leaders have agreed to engage political experts in a bid to arrive at the best decisions.
“There will be no conveners because parties in the past believed that they (conveners) took decisions on behalf of the constituent parties, though they are not representing any. So, the idea is to rope in political experts to direct UDC and the negotiating parties as to which path of cooperation model to follow,” a highly placed informant said this week.
UDC convener Lebang Mpotokwane has also defended the umbrella model in the past, noting that it creates fewer problems for the participants. The negotiations will be the fourth opposition cooperation talks since the 2009 elections. The opposition has held talks in 2011, 2012 and 2017. The 2012 talks resulted in Umbrella for Democratic Change (UDC), which has been anchoring negotiations since then.
When the Chairperson of the International Labour Organization (ILO) Governing Body invited member states to submit candidates for the vacant Director-General post for consideration, Botswana developed a keen interest.
It swiftly mobilized to beat the deadline, but the unions, upon consultation, nominated Justice Key Dingake as their preferred candidate, much to the government’s disappointment, who then decided to dump the whole issue altogether.
In accordance with the Rules governing the appointment of the Director-General and the decisions made by the Governing Body at its 341st and 342nd Sessions, the Chairperson of the Governing Body calls for candidates for appointment to the office of Director-General of the ILO through communication to all Governing Body members and all ILO Member States and candidatures must be submitted by a Member State of the ILO or by a regular or deputy member of the Governing Body.
The deadline for submission was on Friday, 1 October 2021, and candidatures were to be sent by postal or electronic mail to the following address to the Chairperson of the Governing Body. This publication had established that when Cabinet sat to discuss the issue, it was resolved that the unions as key stakeholders should be consulted and requested to submit a name for consideration. They did and offered Justice Oagile Key Dingake-a distinguished scholar and labour law expert whose contribution to the country’s labour fraternity is unparalleled.
When asked this week to share their side of the story, the unions said they were first invited to partake in the process by the government but never got a response after they nominated judge Dingake as an ideal candidate.
“We sent our correspondence to the Minister of Employment, Labour and productivity, Mpho Balopi, with our suggested name being Justice Oagile Key Dingake, but since then we never got a response,” said unionist, Tobokani Rari who further expressed disappointment at how the government has handled the matter.
Rari said that while he would not want to impute any improper motives to anyone, the developments rekindled memories of the government’s hostility towards Judge Dingake, who has been forced by circumstances to take his skills and wealth of experience to the benefit of other countries. Balopi did not respond to questions sent to him and did not pick this publication’s calls at the time of going to press.
Cabinet insiders say Dingake’s name spoilt the party and dampened the spirits. “In the list of nominated names, he was the leading candidate, but I guess the powers that be could not imagine themselves campaigning for him and doing all they did for the Executive Secretary of SADC Secretariat, Elias Magosi.”
Dingake’s sin, observers say, has always been his progressive, independent mind and family’s political background, all of which have always stood in his way to progress to the country’s judicial ladder’s ends.
It is understood that also in the mix and preferred by the state was former Attorney General, judge, and now Ambassador and Permanent Representative of Botswana to the United Nations and other international organizations, Dr Athaliah Molokomme, who also has a background in human rights advocacy.
But insiders say many believed that the country should export Dingake to represent the country given his decorated experience and background. As a lawyer, Dingake represented 90% of Trade Unions in Botswana, drafted numerous Collective Labour Agreements, later presided overall trade disputes, including Collective Labour Agreements, and made determinations as Judge of the Industrial Court of Botswana.
Dingake has also written and lectured widely on trade, labour and human rights and holds numerous citations and awards for his work regarding peace, human rights, and social development. Had he contested and won, he would have been the first African to lead the ILO.
The ILO is built on the constitutional principle that universal and lasting peace can be established only if based on social justice. The ILO has been the source of such hallmarks of industrial society as the 8-hour day, maternity protection, child labour laws and a whole range of policies promoting workplace safety and peaceful industrial relations. Unique among UN organizations, the ILO has a tripartite structure involving governments, employers and workers.
ILO Director-General elections events lineup…
At its 341st (March 2021) and 342nd (June 2021) Sessions, the ILO Governing Body approved the following timetable for the appointment of the Director-General because the current term of office of the Director-General will come to an end on 30 September 2022:
1 July 2021: The Chairperson of the Governing Body calls for candidatures 1 October 2021: Last date for the reception of candidatures A week in January 2022: The Chairperson of the Governing Body conducts interviews with candidates for the position of Director-General based on the format and principles contained in document GB.342/INS/6 and the guidance provided by the Governing Body at its 342nd Session 14-15 March 2022 (344th Session of the Governing Body): The Governing Body conducts candidate(s) hearings 25 March 2022 (344th Session of the Governing Body): The Governing Body conducts the ballot for the election of the Director-General 1 October 2022: The term of office of the Director-General commences.
Botswana and the European Union (EU) appear to have been at each other’s throats behind the scenes since last year, with the EU saying it held several meetings with Botswana to convince her to address human rights issues.
This is contained in a 2020 Human Rights Report that reveals broad divisions in contentious issues boiling behind the scenes between Gaborone and the Union. According to the report, which was released recently, the EU says it “continues to follow closely three main human rights issues in Botswana: the application of the death penalty; the rights of LGBTI persons; and gender equality.”
“Botswana remains part of a small group of countries – in Africa and globally – which continue to retain the death penalty both in law and in practice. Three executions were recorded in 2020,” the report says. According to the report, the Botswana Government indicated that a public debate on the application of the death penalty should be part of its ongoing work towards developing a Comprehensive Human Rights Strategy and the related National Action Plan.
The report says further progress on the rights of LGBTI persons’ seen in 2019, when Botswana’s High Court decriminalised same-sex consensual relations, is still pending, subject to a final court decision over a government appeal.
“Finally, gender-based violence and the need to advance gender equality and women’s rights in society remain another challenge for the country. In response to the high incidence of gender-based violence – which has intensified in many countries during the current COVID-19 pandemic – the President and the First Lady launched a public campaign to fight gender-based violence and to promote equality,” the report says.
The report says the EU did not fold its arms and watch from the sidelines the human rights issues in question are concerned but confronted Botswana to have the contentious issue addressed. “The EU continued to engage with the Botswana Government, multilateral organisations, non-governmental organisations and the broader society in Botswana in three main areas: the death penalty, gender-based violence and empowerment of women, and rights of LGBTI persons, as well as on the support of media and implementation of Universal Periodic Review recommendations,” the report says.
The report says that in addition to ad hoc consultations and human rights-oriented outreach efforts, the EU engaged with the Botswana Government on human rights formally in the context of the Article 8 Political Dialogue, which took place in February 2020.
“The dialogue offered an opportunity to exchange views on EU’s and Botswana’s experiences concerning the three EU priority areas in Botswana (capital punishment, gender-based violence and rights of LGBTI persons) as well as other human rights challenges, while also exploring opportunities for EU-Botswana cooperation on human rights issues in the context of the EU-Africa partnership and at the multilateral level,” the report says.
In parallel to engagement with the government, the EU said it continued to maintain dialogue with representatives of civil society focusing on human rights and with UN organisations and other partners of the country.
“The EU continues to be the driving force behind the Gender Dialogue (in principle co-chaired with UN Women and the Gender Affairs Department in the Ministry of Immigration, Nationality and Gender), which brings together various stakeholders to discuss gender issues to chart a way forward regarding partnerships. The EU has also used public diplomacy efforts to stimulate broader dialogue in the country on human rights issues,” the report says.
The EU said it continued to provide financial support to projects funded through the European Instrument for Democracy and Human Rights, with activities focused primarily on helping Botswana tackle gender-based violence, strengthen the notion of gender equality in the country, and promote participation in political processes.
“With six projects already underway, the EU signed two new programmes, in the wake of the COVID-19 pandemic, to support victims of gender-based and domestic violence and defend the rights of marginalised people, with a combined budget of EUR 430,000,” the report says. It says one of the projects is designed to offer care services to victims of gender-based violence and provide clinical services, counselling, shelter, and a referral system for legal and social assistance. Another project provides legal, medical and psychosocial support to refugees, undocumented migrants and indigenous people.
It says Botswana remains an important like-minded partner for the EU on the human rights agenda at a multilateral level. “The country’s positive role on human rights in the multilateral context would be further strengthened by initiating a domestic process of reflection about the signature and ratification of several pending core human rights conventions and/or optional protocols (e.g. the Convention for the Protection of all Persons from Enforced Disappearances, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Persons with Disabilities, the Optional Protocol of the Convention against Torture, etc.)” the report says.
But the report acknowledged that Botswana is a stable and well-established democracy with a legal framework and institutions designed to guarantee respect for human rights in society. It says human rights complaints are addressed by the courts, with the government accepting decisions and implementing relevant rulings.
“Although the media scene in the country is relatively undeveloped, the World Press Freedom Index has noted a further positive trend concerning the role of the media in society (as was also the case in 2019) and has improved Botswana’s ranking from 44th to 39th place (out of 180 countries),” the report says. Meanwhile, this week, President Dr Mokgweetsi Masisi met with the EU delegation led by the managing director for Africa of the European External Action Services, Ms Rita Laranjinha.