The Directorate on Corruption and Economic Crime (DCEC) is investigating the board of the Botswana Energy Regulatory Authority (BERA) for awarding some members salary increment in an unprocedural, possibly unlawful manner.
After the government announced a three percent increment for civil servants, this issue got on the agenda of the BERA board meeting. The board is made up of eight members, four of whom work full-time at the Authority’s offices in Lobatse. The latter are the ones who got the three percent salary increment. The issue of contention goes way beyond whether, as board members, they were entitled to an increment meant for civil servants but something much more serious. When the item of the increment came up for discussion during a board meeting, the full-time members didn’t recuse themselves. This non-recusal is now being viewed to have been in contravention of Section 18 of the BERA Act whose first sub-section reads in full: “Every member shall, immediately upon commencement of a meeting, at which any matter which is the subject of consideration and in which the member is directly or indirectly interested in a private capacity, disclose such interest and shall not take part in any consideration or discussion of or vote on any question concerning the matter.”
The increment took effect on April 1 this year, meaning that the directors, who reportedly get around P100 000 a month, would have earned it twice. The matter reached DCEC, whose officers are said to have started investigating whether the actions of the four full-time members were not in contravention of Section 18. If sub-section 2 of that provision is any guide, the DCEC investigators will want to peruse minutes of the meeting in question. This particular sub-section says that the disclosure of interest “shall be recorded in the minutes of the meeting at which it is made.”
The penalty of failure to disclose comes in four different penalties that run the spectrum from least severe to most severe. To be clear, there is no such classification in the Act in terms of wording but the least severe penalty would have to be one prescribed in sub-section 3 of the provision in question: “Where a member fails to disclose his or her interest in accordance with subsection (1) and the board makes a decision which benefits that member, the decision shall be void.” The practical effect of “void” in this particular case would probably take the form of stopping the extra money that has been added as a result of the 3 percent increment and getting the board members to reimburse the money. The second penalty prescribes “a fine not exceeding P2000.” However, for people who earn around P100 000 a month that will be peanuts. A level above this penalty is what Section 11 (2) prescribes for those who fail to comply with Section 18: removal from office by the Minister of Mineral Resources, Green Technology and Energy Security. The third penalty is what would have led to the P2000 fine: being charged by DCEC for failing to disclose interest – which means being hauled over legally-fired coals. The most severe penalty not only follows a trial process and can result in a P2000 fine as well as imprisonment not exceeding six months. The third and fourth penalties align in Section 11(2)(c) which empowers the minister to remove from office, any member who is convicted of an offence under the BERA and other Acts.
The failure-to-disclose contravention in question is an odd one. At the most basic semantic level, one discloses something that others don’t know. Everything was on the table when the board met to discuss whether the four full-time members should get the 3 percent increment. Whom should they have disclosed to who was in the dark about their personal interest in the outcome of this discussion?
One of the four board members is Kenneth Kerekang who is one third of the suspect cast in the National Petroleum Fund (NPF) money-laundering case. As Sunday Standard reported last week, his membership of the BERA board contravenes another provision in the BERA Act. Section 12 of the Act empowers the minister to suspend a board member “against whom criminal proceedings are instituted for an offence in respect of which a sentence of imprisonment may be imposed, and whilst that member is so suspended, he or she shall not carry out any duties or be entitled to any remuneration.” Criminal proceedings have been instituted against Kerekang for an offence (money laundering) in respect of which a sentence of imprisonment (a maximum of 10 years imprisonment or a maximum of P20 million fine or both) may be imposed if the court finds him guilty. The alleged laundering of P250 million from the NPF occurred while Kerekang was still the Director of the Department of Energy. He is BERA’s point man on petroleum.
At press time, the Chairperson of the BERA board, Bernard Ndove, was said to be away in the United States. It would have been his responsibility to get the board members in question to recuse themselves if they didn’t do so voluntarily. From what Sunday Standard learns through sources at the Ministry of Mineral Resources, Green Technology and Energy Security (under which BERA falls), Ndove is among people that DCEC investigators have interviewed. In a slightly ironic twist, the other person on the interviewee list is the Chief Executive Officer, Rose Seretse, who until last year, was DCEC’s Director General. DCEC itself had not responded to questions submitted in writing at press time.
Established only last year through an act of parliament, BERA already finds itself in a snake pit.