The embattled PEEPA (Public Enterprises Evaluation and Privatisation Agency) was this week thrown into further turmoil when it emerged that the company board of directors has been illegally constituted and all decisions it took may be null and void.
The board of directors has a total of 12 members which violates the Privatization Policy passed by cabinet and parliament in 2000, while the Privatisation Policy says the maximum can be nine.
The Privatisation Policy is the constitutive document guiding PEEPA operations.
Investigations by The Sunday Standard have revealed that the appointment of an additional five directors to the PEEPA Board last year violated the Privatisation Policy.
The five were appointed after cabinet sought to rein in what they perceived to be a hostile board led by the maverick Permanent Secretary, Serwalo Tumelo of the Ministry of Finance.
Against the will of cabinet, Tumelo and his board had sacked PEEPA Chief Executive Joshua Galeforolwe, before cabinet, led by Vice President Ian Khama flexed their muscle and reinstated him.
New faces were then hastily appointed as PEEPA directors.
States the Privatisation Policy, “The board will consist of no more than nine members (including chairman) to allow for substantive discussions.”
The expanded number of PEEPA board members also goes against the articles that constituted PEEPA as a company, articles which state that “the Company, its Members and Directors shall at all times comply with and be subject to the Privatisation Policy as amended from time to time, or a variation of it and any related laws, and in the event of these Articles being contradictory to or being in conflict with the Privatisation Policy, the Privatisation Policy shall apply.”
Lawyers interviewed by The Sunday Standard this week said the government has no option but to cut down the number of directors or take the Privatisation Policy back to parliament to change the policy to allow twelve board directors.
Curiously, this legal omission has escaped the PEEPA board, which includes two of the country’s foremost and celebrated lawyers ÔÇô Parks Tafa and Sardique Kebonang.
The 12 Board Members are Blackie Marole (Chairman), Serwalo Tumelo, Parks Tafa, Oabile Mabusa, Reginald Motswaiso, Irene Tlhase, Sadique Kebonang, Jerry Mookodi, Shirley Segokgo, Jimmy Modise, Setshedi Botlhole-Mmopi and Banny Molosiwa.
Speaking on condition of anonymity, one lawyer said it will be interesting to see how the government will correct this “serious violation.”
He said the appointment of the new batch of five PEEPA directors, including Chairman Marole, was “illegal” because no advert had been put forward to publicly advertise the positions.
“A thorough look shows that PEEPA is not as autonomous an entity as envisaged by the policy,” he said. “Government must revise the privatisation Policy. But then they will have to seek sanction from parliament.”
Another lawyer, Dick Bayford, who has closely followed the unfolding privatisation saga, said the PEEPA Board has “clearly been improperly constituted.”
“As a result, PEEPA has taken decisions under the influence of people who were not supposed to be on its board. Those decisions, I would submit, were unlawful,” said Bayford.
A constitutional law academic at the University of Botswana, Bongi Radipati, said under the circumstances, the Privatisation Policy should rule supreme.
He said it is possible that PEEPA has an “illegally constituted” board.
Radipati said that would mean that whatever transaction is reached will become “null and void.”
“As the constitutive document, the Privatisation Policy is a foundational document and a port of call. Everything should be in consonance with it,” said Radipati.
The PEEPA Public Affairs Manager, Norman Patlakwe, would not answer questions on how this glaring omission could have happened.
“The policy at PEEPA is that to answer questions from the media I have to be cleared by my superiors,” said the helpless Patlakwe.
He said there was not much he could say as his boss, the PEEPA Chief Executive Officer, Joshua Galeforolwe, was outside the country.
Investigations by The Sunday Standard have revealed that the oversight happened at the time when, at the advice of officials in the Office of the President, government sought to dilute the influence of Serwalo Tumelo and Parks Tafa when, against cabinet, the two sacked PEEPA Chief Executive Joshua Galeforolwe last year.
At the time, Vice President Ian Khama joined the fray in Galeforolwe’s corner and ensured that he was re-appointed against the wishes of the then board of directors.
Annoyed at what they saw as a defiant board, cabinet hastily increased the number of directors, mainly with appointees deemed less independent, sympathetic and not hostile to cabinet agenda.
At the same time, Permanent Secretary Tumelo was also deposed from the chairmanship in favour of Debswana Managing Director, Blackie Marole, a Khama man.
PEEPA has become part of the discredited privatization regime which has at the centre the national carrier, Air Botswana.
While parliament has passed a motion calling for the suspension of the negotiations between the government and a South African company, SA Airlink, cabinet has continued nonetheless.
The turmoil and a groundswell of negative publicity surrounding both PEEPA and the privatisation of Air Botswana has seen the agency engage the services of an international public relations image maker, Adam Smith International