The Water Utilities Corporation (WUC) finds itself in a messy financial scandal following a misappropriated and misused P8 million payment relating to the construction of their headquarters building in Gaborone Central Business District-CBD- which has led to an intense quarrel and lawsuits between consultants.
Around 2013, WUC engaged consultants under a consortium model to construct and fund a head office in the CBD. The project entailed the formation of a special purpose vehicle, a company, the transfer of land in the Gaborone new CBD to the company, the raising of funds with which to finance the cost of the building, which will be guaranteed by WUC, setting the nature of security for payment of finance, the negotiation and settlement of a long term lease between WUC and the company in terms of which WUC will occupy the building as well as the potential of long-term lets by the company of undeveloped portions of the land to developers for development, which meets the criteria of WUC and the company.
The contract was awarded to Oil Refineries Botswana, which later engaged several consultants and grouped them under Belshane Property Group to ease dealing with WUC as a single body.
An engaged sub-consultant, Systems and Services Engineers owned by Alex Monchusi, was hired to provide a range of services to structure and secure private equity funding for the WUC headquarters office, which was done with ABSA bank. Oil Refineries Botswana and Belshane owner as team leader and other consultants later co-opted Monchusi, another subcontractor, as a member of Belshane Property Group consortium in good faith to lead the consortium up to the completion stage of the project.
The winner of the tender, Oil Refineries and Belshane owner, Olebeng Ngwakwena, in court papers say the appointment “sent a wrong message to Systems and Services Engineers owner, Monchusi” and gave him the impression that “he had taken over my brainchild and started bullying members of the team including sub-consultants.”
“The addition of Monchusi was done in good faith with the hope that there would be value add. Never intended that he would be a Leader of the House; Chief Whip; Class Monitor/Head Prefect,” says Ngwakwena in his affidavit, adding that “it was never intended that appointing Monchusi the leader gave him ownership of his company.”
The dispute and fallouts…
When the work was done, the consortium issued a fee note for payment to WUC. However, Ngwakwena says Monchusi and two employees of a local commercial bank which was also a member of the consortium, then following that letter wrote another letter under the letterhead of the consortium, without the consent and knowledge of others, instructing WUC to make the payment for the project to Monchusi’s company knowing that it was improper and that a process has already been triggered.
Ngwakwena and other consultants were not privy to the above arrangements to pay the applicant’s money to a third party. “It only became clearer from the Tax Invoice and bank statement that an initial payment of P1 million had already been paid to Monchusi,” said Ngwakwena. He added that while sub-contractors are looking for payments from them, Monchusi is merrymaking “in the comfort zone enjoying the money which does not belong to him”.
Ngwakwena says Monchusi is engaging in delay tactics in either returning the money or paying the consultants directly and tends to engage in long senseless letters under the letterhead of the consortium questioning their claims as a delaying tactic without the authority of Consortium members.
According to Ngwakwena, Monchusi has admitted to using the entire WUC payment for personal use. “Representatives from the bank – Badly and Sekwakwa who were co-authors of the letter that authorized WUC to pay the Consortium money to Monchusi were all out to try and protect Monchusi by withholding the information from their principal – the bank. Applicants have on several occasions requested Monchusi to return the money and approached the commercial bank to assist with the return of the money, but in vain.
Ngwakwena wants the court to order Monchusi to immediately deposit the P7 million in his possession that they irregularly obtained from WUC to the Registrar of the High Court for safekeeping to avert any risk or undue enrichment pending the finalization of the matter. They further demand the money with a 10 percent per interest per annum from when they took it.
WUC, which is also being sued for misdirecting a payment to a third party, is watching helplessly on the sidelines. The applicants say should the Monchusi return the money, the WUC suit will automatically fall.
Monchusi admits misappropriating WUC payment
Monchusi later admitted to using their money for personal use after attempts to avoid the matter in his many correspondences to all the sub-contractors. In an email, he promised fellow consultants that he was selling his properties to recover the money. “Parallel to the above, I have been speaking to the bank leadership to discuss ways that the bank can assist me,” he wrote.
Following their loss to the Duma Boko-led lobby in the Botswana National Front (BNF)’s national congress last month, some members of the party are reportedly considering forming a new political party.
According to members, the new party will be formed after they receive a tip-off that the BNF will do all it can to ensure that the aggrieved members do not participate in the 2024 national elections. This will reportedly done through a carefully orchestrated primary elections elimination campaign.
Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.
Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.
She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”
Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.
On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.
“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.
One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.
The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”
The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.
Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.
Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.
The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.
The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.