On the 28th April 2007, the Botswana Congress Party Central Committee resolved that the issue of the privatization of Air Botswana was of public interest. The Central Committee further took the view that the Executive Branch of Government was acting in violation of democratic principles in its resolve to disregard the Parliamentary Motion calling for the suspension of the Air Botswana Privatization negotiations.
The BCP Central Committee further resolved to establish an Investigative Committee under its Legal Secretariat to assess the options available to the Party in view of the Executive’s disregard of Parliament and the Law.
The conclusion of the Legal Secretariat investigation on the matter is as appears hereunder.
Parliament enacted the Air Botswana Transition Act Cap 74:09 on 28th July 2003. The same Act was assented to by the President of Botswana on the 27th August 2003. The purpose of the Air Botswana (Transition) Act is encapsulated in its heading as follows:
“An Act to provide for the registration of Air Botswana as a public company under the Companies Act; for its continued existence as if it had been incorporated under that Act and for matters incidental thereto.”
The Air Botswana (Transition) Act therefore envisages the conversion of Air Botswana from a Public Corporation or a Parastatal into a company duly incorporated according to the laws of Botswana. The same Law actually repeals the Air Botswana Act, which establishes Air Botswana in its present form.
It is important to note that in terms of Section 5 of Sub-Section 5 of the Air Botswana (Transition) Act:
“all employees of Air Botswana shall become the corresponding employees of the company and shall continue in office for the period for which, and be subject to the conditions under which, they were appointed as employees of Air Botswana”.
In other words, employees of Air Botswana will remain employed as if there have been no changes to the corporate status of Air Botswana.
It is therefore important to note that the Air Botswana (Transition) Act does not in any way envisage the liquidation of Air Botswana or the establishment of any other company to be called by any other name which will succeed and step into the shoes of the existing Air Botswana. Anything done along those lines as envisaged by the Executive is, therefore, clearly in contravention of the Air Botswana (Transition) Act. It is, therefore, liable to be set aside for being in contravention of the same Act upon a proper application for judicial review before the High Court.
It has also been observed that the statements issued by the Minister responsible recently in her address to staff of Air Botswana on 8th May 2007, to the effect that “a new joint venture company would be formed between Government and Air Link with Government holding 50.1 percent of shares and Air Link holding 49.9 percent” and to the effect that “Air Botswana would cease to operate once the new airline was up and running and the contracts of all Air Botswana staff would be terminated”, run contrary to the Air Botswana (Transition) Act.
It is also our view that the current nature and content of the negotiations for the privatization of Air Botswana run contrary to the privatization policy for Botswana, Government Paper No. 1/2000.
The view expressed by the Attorney General that Parliamentary motions are not binding on the Executive is legally untenable and flies in the face of well established democratic principles as well as the requirement for Parliamentary oversight on Executive action.
The legal opinion that has been availed to the Party regarding the locus standi (standing) of the BCP as a Political Organization to institute legal proceedings against the Government on the matter is to the effect that in view of recent authorities on the matter, the Party does have the standing to sue. The Privatization Policy and the Air Botswana (Transition) Act was passed by a Parliament in which the BCP was represented. The BCP comprise citizens who are legally the owners of public assets such as Air Botswana. Both as a collective of individuals and as an institution, the BCP has a direct interest in the disposal of such assets.
The BCP shall therefore be instructing its Attorneys to issue a Statutory Notice in terms of the Law giving notice to the Attorney General of its intention to sue or institute legal proceedings against Government within 30 days on the basis of the aforegoing and further on the basis of the details that shall be provided in the same Statutory Notice
BCP LEGAL SECRETARIAT