The Parliamentary Legal Counsel, Lizo Ngongco, has advised against the decision by Cabinet to continue negotiating with SA Airlink despite a parliament motion suspending the controversial privatization of Air Botswana.
In a special report to Patrick Balopi, the Speaker of the National Assembly, the parliamentary legal counsel, who is the representative of the Attorney General in Parliament, is understood to have endorsed the view held by Members of Parliament that the path taken by Cabinet to privatize Air Botswana is illegal.
The Attorney General is the Chief Government legal advisor and is expected to say the last word on legal matters to inform legitimate action by Cabinet.
Contacted for comment, Ngcongco would not discuss the report but promised to come back to us after getting clearance from the speaker. He never did.
Sunday Standard however can confirm that Ngcongco has already submitted his report with the Speaker.
Ngcongco’s opinion is in line with a groundswell of legal opiniopn shared by many lawyers who this week said it would be a terrible precedent it cabinet chose to go ahead despite the parliament motion calling for the immediate suspension of Air Botswana Privatisation.
Common thinking is that such an action violsates the POublic Authorities Act and the Finance and Audit Act.
Under the Finance and Audit Act powwer to privatise the airline rersts with the Minister of Finasnce.
Yet somehow cabinet is privatising the airline through the Minister of transport.
Also under the Public Authorities act, final authority to sell of do away with Air Botswana rests with parkliament and not cabinet.
The latest turn of events in the controversial privatization of Air Botswana follows last week’s consultation between the privatization body, PEEPA, and Transport Minister, Lesego Motsumi, who insisted that negotiations with SA Airlink should stay the course despite a motion by parliament that Air Botswana privatization should be suspended.
Popular legal opinion within and outside the government enclave, which is allegedly shared by the Parliamentary Legal Counsel, is that Air Botswana was established by an Act of Parliament and, for the disposal of the airline to be legal, it should be sanctioned by Parliament.
The privatization policy of 2000 states that: “Privatization is a political as well as a commercial and economic process. Privatization changes the distribution of power within a society, as it diminishes the control of the economy by the state. Therefore, public support is a major consideration in any privatization programme.”
The feeling is that since the Policy was passed by parliament, it cannot be used against thevwill of the same house.
Ngcongco is understood to be sharing the popular legal opinion that in a parliamentary democracy, parliament is representative of the public majority and its members are chosen at the pleasure of the voting public and should Cabinet go ahead with the privatization of Air Botswana despite disapproval from parliament, not only would it be flouting its policy, but also the will of the people, and by extention the constitution.
Besides, in 2003, parliament passed into law the Air Botswana (Transition) Act “to provide for the registration of Air Botswana as a public company under the Companies Act for its continued existence as if i t had been incorporated under the Act.” The Parliamentary Legal Counsel allegedly subscribes to the opinion that, by passing the law, a clear legislative intent was signaled and endorsed by the President that incorporation, and not winding up the airline, was government’s method of choice for the privatization of Air Botswana. The planned privatization of Air Botswana currently being negotiated with SA Airlink, which envisages the winding down of the airline, however, goes against the specific parliamentary intent of 2003.
Among those backing the decision by cabinet is PEEPA Chief Executive Officer, Joshua Galeforolwe, who last week proposed a propaganda campaign to hoodwink the public into thinking that PEEPA and Cabinet were not defying the parliamentary motion calling for the suspension of the Air Botswana privatization process.
Also lining up behind cabinet and PEEPA is the head of the Presidential Business and Economic Advisory Council (BEAC), Nico Czypionka, who has been steering the Air Botswana privatization from the beginning. It is understood that Czypionka presented a proposal to Cabinet a few weeks before government announced the fast tracked privatization of Air Botswana. It is believed that his recommendations are in part responsible for cabinet’s hasty decision to steer away from the 2003 Air Botswana (Transition) Act. Presidfent Festus Mogae is expected to formally say where he stands on the matter.