Botswana’s premier brewer and leading distributor of beer, Kgalagadi Breweries Limited (KBL) says the recent alcohol ban by the government is unjustifiable, irrational and overrides the rights that are enshrined in the constitution.
KBL in court papers filed on Tuesday this week, before Justice Tshepo Motswagole, argues that the wholesale ban on the sale, dispensing and distribution of alcohol is inherently unconstitutional and even unnecessary.
The brewer through their attorneys, contends that prohibition of alcohol sale must be “necessary or expedient for securing the public safety and also be rational in terms of the principle of legality.”
The company says it is prepared to put a gallant fight against the government as they believe, that despite the Emergency Powers Act (EPA) empowering the President to make regulations which appear to him to be necessary or expedient, this might not be the case as it could be subjective. As such they will put to test “the necessity and expediency as there is no evidence that banning alcohol is indeed an expedient measure, which is beneficial for combating COVID-19”.
The imposition of the concurrent bans were procedurally irregular as the President was required to consult with those who would be affected by the ban, KBL posits. “I should not be heard to say that each and every single person affected had to be consulted, I am merely saying that those who would be most adversely affected should have been consulted,” reads an affidavit signed by the company’s Managing Director Brenno Diaz reads.
“The decision to impose the ban without affording a hearing to persons and entities that would adversely be affected by such a ban is indefensible due to the fact that it is not as if the government had been unaware of the possibility of the so called ‘third wave’ of the pandemic”.
The court papers further emphasize that, “the government cannot therefore sensibly claim that it had to haste with utmost haste because it was taken by surprise.”
In the past, it is said, KBL has attempted to appraise President Masisi on the devastating effects of the ban but he has never responded. The refusal by the President to hear KBL out, has forced the company to accuse him of not applying his mind to issues.
KBL argues that, “this is because such bans infringe on a myriad of rights under the constitution, as any of the regulations and notices imposing such bans are unconstitutional.”
To back their constitutional argument, KBL says the abrupt stop of alcohol sale, infringes on the right to work and trade which is an integral law which Botswana is a signatory to.
Furthermore, the company says the ban tramples on the right to property as their licenses (property) remain suspended. KBL also highlights that the government is disregarding the right to dignity as the ban unjustifiably limits the rights of people to work and thus earn a living, which infringes on the right to human dignity.
So far KBL laments that it has suffered more harm since the first ban in April last year. In 2020 the company says it lost revenue amounting to P514, 677,000.00 and P348, 209,000 in 2021 to date.
“This harm is ongoing and will continue for as long as the ban subsists,” concludes KBL. If the current prohibition is extended further, KBL says it will have no other option but to shut down some of its sites such as Francistown and Palapye or even review its current operations model which includes local production to a distribution depot.
The company has warned the government that there are no public emergency so pressing that the total ban must be enforced immediately in spite of KBL, its employees and others in the industry. “Every day that the ban endures is a day without desperately needed income for employees and those in the industry who themselves are at risk of real hardship,” the affidavit reads.
The alcohol industry according to the Institute of Employment and Labour Studies (ILES) has employed approximately 50,000 directly with the entire value chain at around 200 000.
KBL is the applicant with the Attorney General of Botswana as the First respondent, President Masisi is the second respondent while Director of Health Service is the third. The applicant has given an antagonist up to the 7th of July to deliver their notice of opposition and to deliver their answering affidavit, on or before the 16th of July 2021. At press time this publication was not aware of any opposition application.
UB DON WEIGHS IN
Meanwhile, University of Botswana’s Professor Zibani Maundeni is of the view that Botswana has reached a point where “we realise that lockdowns and shutting down the liquor industry do not prevent the spreading of the coronavirus”.
Maundeni argues that lockdowns and closures only destroy livelihoods. “They impoverish people who are not employed by the government and destroy industries (particularly the private sector and the informal sector).
Government should now be advised to open up the economy to allow people and businesses to operate, lift up curfews to allow night life to return, but enforce masks and speed up vaccination to prevent loss of lives. The economy must be allowed and supported to recover. The ban on alcohol is proving to be unreasonable and costly to livelihoods and to the economy,” he said.
In a classic and shocking case of disgrace and dishonour to this country, the law enforcement agencies are currently struggling to cover up a damaging and humiliating scandal of having conspired to forge the signature of a Palapye Chief Magistrate, Rebecca Motsamai in an unlawful acquisition of the much-publicised 2019 warrant of arrest against Isaac Kgosi, the former director of the Directorate of Intelligence Services (DIS).
The cloak-and-dagger arrest was led by the DIS director, Brigadier Peter Magosi supported by the Botswana Police, Botswana Defence Force (BDF), with the Botswana Unified Revenue Services (BURS) which accused Kgosi of tax evasion, in the backseat.
Umbrella for Democratic Change (UDC) constituent members are struggling to reach an agreement over the allocation of wards for the imminent ward by-elections across the country.
Despite a Memorandum of Understanding (MoU) between Umbrella for Democratic Change (UDC), Botswana Patriotic Front (BPF) and Alliance for Progressives (AP) are said to be active, but the nitty-gritties are far from being settled.
The eight bye-elections will be a precursor of a somewhat delayed finalisation of the brittle MoU. The three parties want to draw a plan on how and who will contest in each of the available wards.
This publication has gathered that the negotiations will not be a run off the mill because there is already an impasse between the Botswana Congress Party (BCP) which is a UDC constituent and AP (currently negotiating to join umbrella).
The by-elections joint committee met last week at Cresta President Hotel in a bid to finalise allocation but nothing tangible came out of the gathering, sources say.
The cause of the stalemate according to those close to events, is the Metsimotlhabe Ward which the two parties have set their eyes on.
In 2019, he ward was won by Botswana Democratic Party’s (BDP) Andrew Sebobi who unfortunately died in a tragic accident in February last year.
Sebobi had convincingly won by 1 109 votes in the last elections; and was trailed by Sephuthi Thelo of the UDC trailed him with 631 votes; while Alliance for Progressives’ Innocent Moamogwe got 371 votes.
Thelo is a BCP candidate and as per UDC norm, incumbency prevails meaning that the BCP will contest since they were runners up. On the other hand, AP has also raised its hand for the same.
“AP asked for it on the basis that they have a good candidate but BCP did not agree to that request also arguing they have a better contestant,” one UDC member confided to this publication.
Notwithstanding Metsimotlhabe Ward squabble, it is said the by-election talks are almost a done deal, with Botswana National Front (BNF) tipped to take Boseja South ward in Mochudi East constituency. Botswana Patriotic Front (BPF) will be awarded Tamasane Ward in Lerala/Maunatlala constituency, sources say.
“But the agreement has to be closed by National Executive Committee (NEC),” emphasized the informant.
The NEC is said to have been cautioned not to back the wrong horse but rather rate with reason and facts.
UDC President, Duma Boko has told this publication that, “allocation is complete with two wards already awarded but with only one yet to be finalized,” he could not dwell into much details as to which party got what and the reasons for the delay in finalisation.
Chairperson of the by-elections committee, Dr. Phenyo Butale responded to this publication regarding the matter: “As AP we contested and as you may be aware we signed the MoU with UDC and BPF to collaborate on bye-elections. The opposition candidate for all bye-elections will be agreed by these parties and that process is still ongoing,” he said when asked if AP is interested on the ward and how far with the talks on bye-elections.
Butale, a former Gaborone Central Member of Parliament, who is also AP Secretary General continued to say, “As the chairperson of the bye-elections committee we are still seized with that matter. We should also do some consultations with the local structures. Once the process is complete we will issue a notice for now we cannot talk about the other two while the other is still pending the other one”.
Butale further clarified: “There is no such thing as AP and BCP not in agreement. It is an issue of signatories discussing and determining the opposition candidates across the three wards.”
Apart from the three wards, there are five more council wards that UDC is yet to allocate to cooperating partners.
FROM PALAPYE MEET: BPP CAUTION NEC MEMBERS
With the UDC cheerful from last weekend’s meeting in Palapye, the meeting however was very tense on the side of both BCP and BNF, with only BPP flexing its muscle and even lashing out.
BCP going into the meeting, had promised to ask difficult questions to the UDC NEC.
BCP VP and also acting Secretary General, Dr. Kesitegile Gobotswang, presented their qualms which were addressed by UDC Chairperson Motlatsi Molapisi, informants say.
It is said Molapisi is fed up and concerned by some UDC members especially those in the NEC who ‘wash party’s dirty linen in public’.
Insiders say the veteran politician cautioned the NEC members that they “will not expel any party but individuals who tarnish the image of the UDC.”
It is not the first time BPP play a paternalistic role as it once expressed its discontent with BCP in 2020, saying it should never wash UDC linen in public.
At first it is said, BPP, the oldest political formation in Botswana, claims disappointment on BCP stance that UDC should be democratised especially by sharing their stand with the media. Again, BPP was not happy with BCP leader Dumelang Saleshando’s decision to air his personal views on social media regarding the merger of UDC party.
Botswana Police Service (BPS) Commissioner, Keabetswe Makgophe, has of late been dousing raging fires from various quarters of society following the infiltration of the police fingerprint system by the Directorate on Intelligence and Security (DIS), WeekendPost has learnt.
Fresh information gleaned from a number of impeccable sources, points to a pitiable working relationship between the two state organs. Cause of concern is the DIS continuous big brother role to an extent that it is now interfering with other institutions’ established mandates.
BPS which works closely with the DIS has been left exasperated by the works of the institution formed in 2008. It is said, the DIS through its Information Technology (IT) experts in collusion with some at BPS forensics department managed to infiltrate the Fingerprint system.
The infiltration, according to those in the know, was for the DIS to “teach a lesson” to some who are on their radar. It is said the DIS is playing and fighting dirty to win the fights they have lost before.
By managing to hack the police finger print system, a number of renowned businessmen and other politically exposed persons found their fingers in the system. What surprised the victims is the fact that they have never been charged of any wrongdoing by the police and they were left reeling in shock to learn that their fingers are on the data-base of criminals.
In fact, some of those who their fingerprints were falsely included in the records of those on the wrong side of law learnt later when other errands demanded their fingerprints.
“We learnt later when we had to submit and buy some documents and we were very shocked,” one politician who is also a businessman confided to this publication this week.
“We then learn that there are some fabricated criminality recorded for us, as to when did we commit those remained secret to the police, but then we had to engage our lawyers on the matter and that is when we were cleared,” said the politician-cum- tenderpreneur.
The lawyers have confirmed engaging the police and that the matters were settled in a gentlemen’s agreement and concluded.
All these happened behind the scenes with the police top brass oblivious only to be confronted by the irked lot, police sources also add. The victimized group who most of them have been fighting lengthy battles with the DIS read malice and did not blink when it was revealed that these were done by the DIS.
“And it was clear that they (DIS) are the ones in this dirty war which we don’t understand. Remember when we sue, it will be the Police at the courts not the DIS and that is why we agreed to a ceasefire more so they also requested that be kept under carpet,” said the victim.
Nonetheless, the Police through its spokesperson Assistant Commissioner, Dipheko Motube, briefly said: “we do not have any system that has been hacked.” On the other hand DIS mouthpiece Edward Robert was not in office this week to comment on the matter.
Reports however say DIS boss, Peter Magosi, who most of the victims accuse of the job, is said to have met his police counterpart Makgophe to put the matter to bed.
COVID-19 RAVAGES POLICE
As frontline workers, Police have not escaped the wrath of Covid-19. Already the numbers of those infected has reached the highest of high and they suggest that they be priorities on vaccine rollout.
“Our job is complicated, firstly we arrest including those who are non-compliant to Covid protocols and we go to accidents and many more. These put us at risk and it seems our superiors are not bothered,” said one police officer this week.
The cops further complain about that working spaces are small, as such expose them to contact the virus.
“Some tests positive and go for quarantine while the rest of the unit will be left without even test carried out. If at all the bosses are serious all the police officers should every now and then be subjected to testing or else we will be no more because of the virus,” added another officer based in Gaborone.
The government has since placed teachers on the priority list for the vaccines, it remains to be seen whether the police, who also man road blocks, will be considered.
“But our bosses should convince the country leadership about this, if not then we are doomed,” concluded a more senior officer.