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Gov’t moves to remove courts from tender disputes

Wilfred-Mandlebe

Never again shall public projects with allocated funds be delayed on the account of one of the bidder(s) contending the outcome of the tender adjudication process. This was revealed by the Permanent Secretary in the Ministry of Finance & Economic Development Dr Wilfred Mandlebe recently.

Appearing before the Parliament Public Accounts Committee (PAC) Dr Mandlebe said government will be approaching this winter session parliament sitting to court lawmakers into amending the Public Procurement & Asset Disposal Act with a view to enable awarded contracts to proceed regardless of any legal dispute or whatsoever.

“We want it to be in the act that as soon as the contract is awarded the contractor mobilizes to site and commences the work, all those contending the outcome will not be able to stop the project,” Dr Mandlebe told PAC members.

The Permanent Secretary was responding to PAC committee chair –  Keorapetse’s concerns that government was incurring costs on delayed project implementation because bidders we still at logger heads.

“We are incurring costs emanating from disputed tenders where contractors who have not won bids seek redress from the courts, I know there is very little you can do because of these people’s legal right to seek redress, but there should be something that we can do on efficiency of government in so far as adjudication of tenders is concerned,” he said.

The Committee Chair who is also Member of Parliament for Selibe Phikwe West implored government to expedite addressing the issue because the public was suffering at the hands of halted national projects on the account of tendering processes that are still engulfed by ligation and legal battles.

“There should be something we can do to deal with this problem of unending disputes; we are witnessing appeals to tender committees, at ministerial level, even at councils, and some  issues end up at court while the country or the community that was supposed to benefit from the said project continue to suffer, this thing is a pandemic,” said Keorapetse.

When responding Permanent Secretary Dr Mandlebe whose ministry houses the Public Procurement Asset Disposal Board (PPADB) said the issue was indeed a matter of concern.

“Indeed it’s a pandemic, we are not happy about it at all, but as a law abiding country, the law as it is now, sorts of allows for this kind of characters, some of them rush to court for no reason, I can quote a number of projects where these defeated contractors were just playing delay tactics.”

Dr Mandlebe revealed that his ministry will be tabling the revised public procurement act to permanently fix this problem “We are going to be presenting the revised public procurement act and  in there we are trying to address some of these issues , to try and  streamline our procurement processes such that public good takes precedence over individual self.”

He explained that in order to insure implementation of awarded tenders is not delayed; a clause will be enacted in the act to put a lid on progress delaying tactics that cost the country a lot of money.

“This clause would be that when a public tender is awarded and one of the bidders is aggrieved they can continue approaching the appeals boards or any structure, but that should not stop the project and if at the end of the day any of the structures of government, the adjudicating or tender awarding body is found to have omitted something or awarded the tender with some irregularities, that will be dealt with.”

The Finance PS however added that bidders who present a weak case on purpose to stall public good and national progress will also be taken into account “Similarly when one of these aggrieving bidders is found to have been playing delay tactics with these back and forth at the courts of law they should also be dealt with accordingly, the law should punish them because we have projects that have been stalled because of this behavior,” he said.

Dr Mandlebe said the bill is slated for arrival before members of parliament during this ongoing sitting that that started Monday 6 July 2021. “That is how we want to put an end to this issue, we are gazetting the bill and hopefully it will catch this winter parliament sitting,” he said last Friday.

The delayed implementation of public projects especially in the areas of construction has been a thorn on the flesh as far as development and national service delivery are concerned. In the previous parliament sitting that adjourned in April this year, lawmakers raised the issue as serious impediment to the development agenda of the country.

Recently the disputed tender that has been on the news headlines is the Masunga-Tshesebe road project which saw construction industry giant battle out in court. At the heart of the over 3 years litigation was a dispute over which of the bidders were entitled to the award of the project which falls under Roads Department under Ministry of Transport & communication .

The project was awarded in 2016 to a company called Bash Carriers but the contract was later terminated on performance related ground after commencement and the tender was refloated to invite interested parties with restriction to those who had initially responded to the first tender.

In the matter that was resolved by the highest court in the land-the court of appeal, Bango & Zebra Construction Joint Venture, Landmark Joint Venture and government were disputing a high court decision to order award of tender to Cul de Sac.  The Court of Appeal reversed the High court’s decision and Cul de Sac ended up losing with costs with Landmark joint venture granted award of the tender.

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Dingake talks about gay rights in tribute to Kirby

11th January 2022
Dingake

Former High Court Judge Professor Key Dingake has made his opinion known about gay rights in a glowing tribute to his retired former colleague Justice Ian Kirby.

Late last month a panel of Court of Appeal (CoA) led by Judge Kirby upheld a 2019 High Court ruling that decriminalised same-sex relations and stroke down two sections in the penal code. In his seminal judgment, Justice Kirby said these sections served only to incentivize law enforcement agents to become keyhole peepers and intruders into the private space of citizens.

In this case one Letsweletse Motshidiemang, a homosexual had instituted an application in the High Court challenging the constitutionality of Sections 164 (a) and 164 (c).

Paying tribute to Justice Kirby, Justice Dingake said overall the Kirby court was restrained and brilliant in its genre of conservatism. Judge Dingake said the case of Motshidiemang is evidence of the latter. “In a stroke of a pen, he ended the long and tortuous road to equality of gay people.

I was reminded of this long and tortuous road by a piece written by, Zackie Achmat, that indefatigable human right defender, recently, when he reflected on a union of gay men, one Khoi and the other a Dutch sailor, way back in 1735, who for their love for each other were brutally murdered,” Justice Dingake said.

He said in truth Botswana’s Constitution never denied the right to equality for gay men. It was society and the judges who did – some arguing that the time is not right to extend equality rights to gay persons – forgetting the self-evident truth that we are all born equal and that rights are not negotiable – not even with Judges.

“It ought to be remembered that the Motshidiemang case was similar to the case of Kanani that preceded it. Justice Kirby was part of the panel that sat in Kanani. In Kanani he agreed with the other Justices and refused to strike down the offensive legislation. The same legislation he struck down in Motshidiemang.

There is no doubt in my mind that Kanani was wrongly decided at the time, as several of my writings thereafter contended, having regard to the legal injunction to always interpret constitutional rights liberally and to treat the constitution as a living organism,” Justice Dingake wrote.

He added that in Kanani the Court of Appeal held back “our march to freedom for more than a decade – and perpetuated the suffering of gay persons as their being was criminalized based on an inaccurate and narrow reading of the Constitution”.

The truth of the matter is that, he said, our Constitution never denied gay persons the rights to equality and the right not to be discriminated against. “Some sections of society (may be the majority) and the bench did so. The bench did so because of the choices they exercised.

They chose to interpret the constitution restrictively, which is not permissible; they chose to be blown away by ‘public opinion’, which was not right, and they chose not read: ‘sexual orientation’, into section 15 of the constitution, which they could have done.”

Botswana’s Constitution he said commands that it be interpreted in a manner that saves humanity from the scourge of indignity – and with a sense of the future – and to secure the rights of generations yet to be born. It is always the duty of Judges to breathe life into the Constitution – and to effect the promise of the Constitution – by among other things rejecting the tyranny of the majority.

“Section 3, the principal section conferring fundamental human rights in Botswana has always been there. It was ignored in Kanani, and thankfully given effect to in Motshidiemang.  A big lesson here is the often overlooked fact: Judges matter! Who the Judge is may be life changing in any given matter.

When one considers the decision in Kanani and Motshidiemang, based on similar facts and the diametrically opposed conclusions, one may be given to think that may be: ‘the constitution is what the Judges say it is’, at any given time, as that brilliant luminary judge and scholar, Charles Evans Hughes (1862 -1948) LLD, once ruminated.”

Interestingly, Judge Dingake wrote about homosexuality more than 12 years ago in his book ‘Key Aspects of the Constitutional Law of Botswana’. Justice Dingake expressed his views on what was said then to what was said in the recent judgment.

In that book, he began the debate by stating that homosexual issues are not frequently debate in Botswana. “Empirically, the extent of homosexual tendencies is not known. In any event the phenomenon does not appear to be widespread,” the Judge wrote.

He said serious debate however cropped up sometime around August 1995, after president Robert Mugabe’s much publicized anti homosexuals speech at the Harare International Book Show. Even then, he said, the debate was only confined to a small circle of intellectuals, with the broader community generally contemptuous and not willing to engage in serious debate about the issue.

“Although the intellectual community is by no means unanimous, there are some voices, particularly emanating from the University of Botswana, that are calling for equal treatment for homosexuals. Despite the enormous capacity of such arguments to court controversy general response of the public was one of cynicism. This general lack of interest among the general populace contrasts sharply with the enthusiasm and interest on the issue, just across the border, in South Africa, where there are numerous homosexual associations,” he said.

He explained that the South African Constitution prohibits discrimination on the basis of sexual orientation, which has paved the way for homosexuals to be employed in the army, an advance that is unparalleled in modern democracies. He also explained that Botswana’s criminal law prohibits consenting adults of the same sex from having a sexual relationship, because that is said to be unnatural.

“Within the framework of Botswana’s Constitution there can be no doubt that the prohibition of sexual relationships between consenting male adults of the same sex is unconstitutional. No free society can, in this era, afford to treat its citizens differently on the basis that is patently irrational.

Every individual, is in terms of the Constitution equal before law and has the right of equal benefit of the law without discrimination. The legal recognition of homosexuals will confirm Botswana as a democratic country that is advancing with time.”

He added that it needs to be said that it is however fruitless to bury “our heads in the sand and hope the issue will disappear for good”. He concluded: “In time we will have to confront the issue head on. In time blind prejudice that stigmatizes homosexual relationships will have to stand up to rational scrutiny. It is advisable not too turn a blind eye to the pain of discrimination suffered by few of our fellow countrymen and women. In a democracy it is unacceptable that the majority should oppress the minority”.

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Electricity prices could go up

11th January 2022
BERA CEO - Rose Seretse

Consumers could pay more for electricity this year, as the government owned power producer, Botswana Power Corporation (BPC) plans to increase prices for electricity by 5% with effect from the 1st of April 2022.

BPC recent statement on tariff adjustment shows that with the planned 5% increase in electricity tariffs, electricity prices per kWh could increase by 111 thebe for household users, 226 thebe for government, 148 thebe for commercial businesses and 111 thebe for the mining sector.

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Botswana GDP in upward trajectory as economy recovers

11th January 2022
Peggy Serame & President Masisi

Botswana economy is registering growth as the country emerges from one of its worsts economic recessions since independence, following the outbreak of COVID-19 pandemic.

In late December 2021 Statistics Botswana released the country’s Gross Domestic Product (GDP) figures for the third quarter of 2021.

The nominal GDP for the third quarter of 2021 was P49, 260.5 million compared to P48, 684.0 million registered during the previous quarter. This represents a quarterly increase of 1.2 percent in nominal terms between the two periods.

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