The Sunday Standard edition dated June 5-11, 2022 reports that two Botswana Congress Party Members of Parliament Hon Dumelang Saleshando and Hon Goretse Kekgonegile have approached the High Court by claiming that the acquisition of the controversial Tautona Lodge ‘constituted a simulated transaction aimed at siphoning funds from the national purse to facilitate those connected to the ruling party…..was bought at a highly inflated price’. The legal route pursued by the duo is consequent to the highly charged debate in parliament on the acquisition of the controversial lodge between Opposition MPs on one hand and the ruling party MPs on the other. The former took great exception to the acquisition while the latter did not find anything untoward. The line Minister who was responding to a parliamentary question on the acquisition of the lodge Hon Kabo Morwaeng poured water on suggestions of impropriety. But what he dismally failed to do in my view was to provide a convincing and coherent explanation of the acquisition expenditure. The purpose of this conversation therefore, it to make a few layman’s observations on the subject matter.
Ever since this issue was debated in parliament, I have not been to date persuaded by the explanations by Hon Morwaeng as already said. I therefore formed the conclusion there was more to this issue than meets the eye. As a consequent I am therefore happy it is possible the whole truth and nothing else will be brought to the surface in court to validate or not whether the acquisition of the lodge is beyond reproach should the matter be dealt with in the manner expected by the two MPs.
One of the reliefs sought by the two MPs according to the Sunday Standard is for the court to declare Minister Morwaeng ‘a liar, not fit for public office’. The Attorney General who is representing the Minister and the other listed Defendants in the matter suggests that ‘In terms of the Constitution the power to appoint and remove Ministers from office is the sole prerogative of the President and not the courts’. While the Attorney General is spot on with respect to his statement, the fact of the matter is that the line Minister was responding to the manner in which the lodge was acquired on the floor of parliament as both a Minister and a Member of Parliament himself. I believe the two MPs are pursuing the matter on the basis of the respond from Minister Morwaeng largely as a member of the executive in whose portfolio the transaction of the lodge was carried out. The Speaker of Parliament, given that parliament is not court, could not have made a pronouncement that the Minister is a ‘liar’ and therefore ‘unfit for public office’ (even if he personally felt so) as suggested and sought by Hon Saleshando and Hon Kekgonegile for the court to so declare. From my reading of the Attorney General’s position, he seems to suggest the Minister’s performance or conduct cannot be questioned elsewhere. That is, because he is Constitutionally and solely appointed by the President can he therefore not be subjected to any other authority to determine whether or not he is fit for purpose. The manner in which he responded to Opposition MPs queries and almost dismissively to the issue is good enough reason to say he is not fit to occupy public office.
The Attorney General posits ‘….It is incompetent for the courts to interfere in the affairs of the legislature and the executive and calling upon the court to declare the 2nd defendant (Morwaeng) unfit to hold public office….’. It is not in dispute that the doctrine of Separation of Powers is observed in the legislative construct of Botswana. While this is so, the judiciary remains the organ of government vested with the power and authority to be the final arbiter in disputes. In the not so distant past, Hon Saleshando himself approached the High Court for redress in his dispute with the Speaker when the latter suspended him from attending parliament. Court reviewed and set aside the ruling of the Speaker. In neighbouring South Africa, courts including the apex one in the form of the Constitutional Court have been called on numerous occasions to deal with matters involving the legislature and the executive. This by any long shot can be misconstrued as interference of sorts. The position of the Attorney General on his position that courts would be interfering in entertaining Hon Saleshando and Hon Kekgonegile case with respect to Minister Morwaeng on the transaction of the Tautona Lodge is therefore flawed if not misleading. What is at issue is if the High Court will rule in their favour with respect to the reliefs they seek. If the court rules in their favour, it would be confirming that he is not fit and proper to hold public office.
What is at stake here according to the two MPs is that public funds have been misappropriated in one form or the other by the executive represented by Hon Morwaeng through questionable transactions whose validity and appropriateness by him are in serious doubt. And because he has not given a satisfactory explanation to parliament which arguably borders on insincerity or dishonesty on his part potentially covered by cover-ups, it is imperative that a different structure in the form of the judiciary which is the final arbiter in disputes as already alluded to above comes to the rescue of citizens whose funds are at the core of litigation. This should be in line with the argument by the two MPs that ‘The impugned transactions are unlawful as contemplated by Corruption and Economic Crime Act, the Penal Code of Botswana and indeed the Public Procurement and Assets Disposal Board Act and as constituting improper or unlawful conduct by employees of any State institution; unlawful expenditure of public money and intentional or negligent loss of public money’.
Members of the executive attitude and conduct in responding to questions from MPs across the aisle have become the norm than options. They are always ducking and diving when called upon to demonstrate high levels of accountability and transparency with respect to their portfolios in general and public funds in particular. As members of the public who pay tax and therefore entitled to be provided with the true picture of how our funds are expended by members of the executive, the executive is always giving us a run for our own money. It does not make any logical sense for the executive to have spent P 58 million on a lodge at the time Batswana were at the belly of the Covid-19 pandemic. During this period, our public health facilities were in shambolic state whereupon our fellow citizens and relatives perished under dehumanising conditions. At some point, Covid-19 patients and others suffering from other ailments were turned back from the mortuaries and health facilities to go and catch their last breaths at home because these facilities were so overloaded that they could no longer take any more load. It will be remembered that the Covid-19 Relief Fund was hugely misappropriated as per the Auditor General’s Report yet, the executive is moving at snail’s pace to get to the bottom of the said misappropriation. In all these instances, the executive has not been forthcoming with cogent explanations whether in parliament or elsewhere. The ducking and diving continues at every step of theway.
In the final analysis, it should be admissible to all patriotic citizens that funds permitting, the executive must be taken to court to explain crucial information pertaining to how its funds are misused by the executive. Under normal circumstances, court actions would not be necessary because all honest information would be provided in parliament to the satisfaction of ourselves and our MPs. I pray that the High Court gets to the bottom of the seemingly dubious acquisition of the Tautona Lodge for the sake of Batswana because. Courts remain our last line of defence given that the legislature and the executive have all but given up on defending the public purse and all that goes with it. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one was safe until everyone is safe’. Let us all continue to adhere to all Covid-19 health protocols.
