Sunday, April 5, 2020

Mogae loses his innocence

The weekly cabinet meetings at the Office of the President are a serious business where important matters of government are discussed.

The meetings, traditionally held every Wednesday morning, are a dispassionate affair, chaired by a State President who routinely throws questions at his ministers and a few invited senior government officials.

Principally, the President enquires about project implementation, seeks to know about the state of the ministries and softly congratulates star performers before comparing notes on the national mood.

But some time in September 1999, cabinet attendees were beginning to discern a shift in the tempo of their Wednesday meetings.
There were signs that the Chairman was becoming more reticent, more withdrawn and lonely – doing a lot of more hand-wringing and little accolades giving.

Attendees also quickly detected that for some strange reasons their Chairman was getting more irritable and less interested in sound bites.
The once cheerful, fresh face of the leader was fast getting furrowed, with the smiles fast replaced by a scowl.
The comforting, jocular pep talks that had once preceded the formal meetings were now replaced by suppressed tension and open distrust.

There was no mistaking the thick aura of animosity that contaminated the air.
A series of blunders, leakages and scandals played out in the full glare of the public media had led President Festus Mogae to a singular conclusion that a section of his inner circle, eager to see him fail, were actively setting him traps to fall through.
The result was that the Chairman’s items on the agenda at the Wednesday meetings moved away from just dispassionate routine matters of government business and started to include a milieu of pointed questions on growing suspicions of disloyalty and possible sabotage by some of the men and women seated around the oval table.

The last few months had seen President Mogae show an admirable ability to ignore the media storm created by his personal investment in a company involved in the controversial multi-billion North South Water Carrier Project; a huge scandal from which he was still smarting.

Earlier, he had also had to weather the storm after an even clumsier decision to allow Vice President Ian Khama on an unprecedented sabbatical leave only a few months into the job. Public pressure forced the President on a humiliating climb-down and had to recall his deputy back to duty.
Under pressure from a nation that had expected better from him, Mogae was therefore not about to let pass a particularly embarrassing electoral gaffe that almost led to disenfranchisement of close to 100 000 voters.

The magnitude of the mistake compelled the President to reach beyond his buddies surrounding the oval table at the Wednesday meetings.
He enlisted the services of Sidney Pilane.

To save the day, the exuberant young legal genius advised that only a State of Emergency and a recall of parliament could deliver the President from the mistake committed by Festus Mogae after he prematurely issued an elections writ before the Independent Electoral Commission could finish compiling and certifying a new voters’ roll.
It was an excessively untidy embarrassment that was to see Mogae, barely a year in office, preside over what has since become Botswana’s first and only State of Emergency ever.
With the situation threatening to burst into a constitutional crisis, the President had little option but to bite the bullet and implement Pilane’s advice.

“I decided to declare the State of Emergency for the sole purpose of enabling myself to recall parliament. The purpose of calling parliament is to amend the Electoral Act to permit the IEC to complete its work in spite of the fact that the Writ of Elections has been issued to hold elections on October 16,” the dejected new president told an astounded nation.

With the mistake corrected, the still alarmed Mogae woke up to the reality that, thanks to some senior officials in his government, his honeymoon as President had been irreparably bungled.
At the Wednesday meetings, the attendees detected discernible traits of isolation and sullen brooding on their Chairman. He was becoming more irascible and impatient.

At around the same time it also dawned on President Mogae that, painful as it was, the reality was that unlike his predecessors he could not rely much on the guys attending the Wednesday meetings he chaired to run the country.
Not for the first time the President leaned on Sidney Pilane for assistance.
With the road ahead promising to get bumpier and the President now comprehensively disabused of his apparent ability to walk on water, he pleaded with the imaginative young lawyer to join the presidency on a fulltime basis.

It was then that Sidney Pilane emerged from the shadows and for the first time assumed a guise of official tails as Special Advisor to the President, a newly established fulltime portfolio at Permanent Secretary level that gave him 24 hour access to the President as both a confidante and counsel.

His training aside, Pilane’s abrasive style, unyielding demeanour and revolutionary outlook made conflict with the government principal legal advisor inevitable.

Hugely ambitious and energetic, it was not long before Sidney publicly crossed paths with incumbent Attorney General, Phandu Skelemani.

The occasion? A Presidential Commission of Enquiry instituted by President Mogae.

True to both men’s nature, it was to be a war of wills ÔÇô over principle and determination.

Sidney Pilane, an overly ambitious and daring young lawyer, had made his name and money during his days in the private practice as a criminal lawyer, running what was by many accounts Botswana’s most successful and respected indigenous owned law firm before abandoning it to settle for a stint in South Africa.
His peers respected him for his elaborate and thorough grasp of the law. He was also looked at as perhaps the most enterprising and certainly bravest lawyer of his generation. He had won a good number of difficult murder cases, taking government prosecutors to the cleaners along the way.

But his detractors never failed to point out his weaker sides; especially his fondness to use his intellectual presence to manipulate the situation and brashly push his way through.

Government insiders say it was when Mogae was going through the weakest and most vulnerable moments of his presidency that he made Pilane a soft sell – nudging the illustrious lawyer to join government as the President’s top back channel in return for unrestricted dominion on all government strategic direction. This offer effectively made Pilane a figure more powerful than senior ministers of government.

Following yet another much more serious gaffe that led to the postponement of a national referendum (and now clearly alarmed that his officials were all out to get him), President Mogae appointed a one man commission to help him determine what exactly was wrong with his government and its senior officials.

To solve the puzzle, the President asked the South African Judge, Joshua Khumalo, to explicitly “identify, by name the person or persons who are culpable or share in the culpability of the acts, errors and omissions” that led to the postponement of the referendum.
More determined to cleanse himself of the spectre of goofs, Mogae went further to ask Justice Khumalo “to apportion culpability should the commission find more than one person responsible for the said acts, errors and omissions.”
Before President Quett Masire retired he had set up a presidential commission which recommended far reaching reforms of the judiciary and the Judicial Service Commission.

Some of the recommendations touched at the very core of entrenched provisions of the constitution.

As such, to overhaul these provisions there was need for popular approval through a national referendum; and, as fate would have it, Masire left the scene before he could see his controversial brainchild reforms through.

And so it was that the responsibility to upset the constitution and reform the judiciary fell on the shoulders of Festus Mogae.

Just by coincidence, it also so happened that around the same time there was a lot of tribalistic agitation and ethnic hatred in the air.

At the centre of the simmering tribal storm were two sub-cultural organizations; Pitso Ya Batswana on one hand and SPIL (Society for the Promotion of Ikalanga Language) on the other.
Pitso harped on the fears of the Tswana speaking groups while SPIL fought the corner of the Kalangas.

Taking advantage of the looming judicial reforms Pitso, under the patronage of former Speaker of Parliament, Moutlakgola Ngwako, went on top gear to openly voice their long boiling resentment that the judiciary, the Attorney General’s Chambers and the Judicial Service Commission were overly dominated by Kalangas.

Kalangas responded in kind. With the two organizations taking turns to whip up tribal hatred, their bout became a shamelessly abrasive confrontation.
It was while the two groups were at each other’s throat that government, through the Independent Electoral Commission, came up with a set of questions to be put be up for a national referendum so as to approve the judicial reforms.
Pitso threatened to go to court, vehemently arguing that the questions put to the nation by IEC were from beginning to the end vague and defective.

Upping the stakes, Pitso insisted the questions had to be changed.
Defective questions aside, a litany of other mistakes and omissions including failure to gazette the writ gave rise to the postponement of the referendum nonetheless.

After holding public hearings for a month, and listening to legal representations from various parties, Justice Khumalo came to the conclusion that Attorney General Phandu Skelemani and IEC Secretary Gabriel Seeletso were equally to blame for the postponement of the referendum.

Justice Khumalo found that Skelemani had to be held responsible for the defects in the questions of the referendum.

“The Attorney General is in terms of section 51 of the Constitution the principal legal adviser to the Government of Botswana. The preparations of the writ of the referendum and the questions to be answered by the electorate were his responsibility. In a savingram to the Attorney General dated 8 February 2001, the Secretary of the Independent Electoral Commission suggested certain amendments to be made to the Referendum Act. It is not clear why the opportunity was not seized by the Attorney General to rephrase section 5 properly… I am of the view that he had the responsibility to see to it that the Secretary of the Independent Electoral Commission published a notice of the Writ in the Government Gazette,” Khumalo said of Skelemani.

For his part, the Secretary of the IEC was held responsible for the failure to publish the writ on the government Gazette.
“In my view the two state officials Mr. Skelemani and Mr. Seeletso are equally to blame for the postponement of the referendum which was to have been held on the 6th October 2001,” concluded Justice Khumalo as he apportioned the blame.
Government sources say at the time government’s overriding concern was to allay public doubts about Mogae’s ability to govern.

More to the point, the President’s intension and that of his team of close advisors, was not just to scare the IEC and the Attorney General into submission but also to portray the two as enemies of the people who had let down the country and the President.

It would seem like the strategy that played out, masterminded by Pilane (now by all accounts the President’s blue-eyed boy) was to humiliate the IEC and the Attorney General, scaring the two into kowtowing before taking responsibility and apologizing for all the mistakes and evils that consumed Mogae’s government.

That strategy only worked in one half as following the Commission’s Report; Seeletso issued a statement that amounted to a remorseful apology to both the President and the nation.
The other half of the strategy however backfired as instead of apologizing like a school boy to school head, Skelemani headed to the High Court, determined to clear his name from the whipping he received at the hands of Justice Khumalo.

The Mogae/Skelemani spat that unfolded at the High court turned into a national fetish and for months the nation watched with helpless anguish, consumed by disbelief as the State President and his Principal Legal Advisor became punching partners.

Here was a President dragged to court by his chief legal advisor on a point the Attorney General strongly felt was a matter not just of law but also of principle.

With either party unwilling to climb down for a compromise the battle degenerated into a political nightmare that threatened to whittle away whatever little remained from the already dented integrity of the presidency.
Murmurs were heard from the government enclave calling on Skelemani to step down.

Skelemani was also called on to use his personal money to pay the high charging South African advocates who represented him under instructions from Parks Tafa of Collins and Newman at the Khumalo Commission hearings. Skelemani made it clear he was at the Commission on his official capacity as Attorney General and, therefore, expected the state to foot his bill.

Convinced of his righteousness and well aware of the protection granted him by the constitution, Skelemani defiantly brushed aside the calls.
Mogae has already gone on record that his tiff with Skelemani was the hardest and most painful point of his presidency.

In a series of press conferences, the President paid tribute to Skelemani, stressing that he envied the man’s independence of mind, but still added that whatever their differences he expected the Attorney General, as government chief lawyer, to appear in person as the President’s counsel in court.

Taking advantage of the looming judicial reforms Pitso, under the patronage of former Speaker of Parliament, Moutlakgola Ngwako, went on top gear to openly voice their long boiling resentment that the judiciary, the Attorney General’s Chambers and the Judicial Service Commission were overly dominated by Kalangas.

Kalangas responded in kind. With the two organizations taking turns to whip up tribal hatred, their bout became a shamelessly abrasive confrontation.
It was while the two groups were at each other’s throat that government, through the Independent Electoral Commission, came up with a set of questions to be put be up for a national referendum so as to approve the judicial reforms.
Pitso threatened to go to court, vehemently arguing that the questions put to the nation by IEC were from beginning to the end vague and defective.

Upping the stakes, Pitso insisted the questions had to be changed.
Defective questions aside, a litany of other mistakes and omissions including failure to gazette the writ gave rise to the postponement of the referendum nonetheless.

After holding public hearings for a month, and listening to legal representations from various parties, Justice Khumalo came to the conclusion that Attorney General Phandu Skelemani and IEC Secretary Gabriel Seeletso were equally to blame for the postponement of the referendum.

Justice Khumalo found that Skelemani had to be held responsible for the defects in the questions of the referendum.
“The Attorney General is in terms of section 51 of the Constitution the principal legal adviser to the Government of Botswana. The preparations of the writ of the referendum and the questions to be answered by the electorate were his responsibility. In a savingram to the Attorney General dated 8 February 2001, the Secretary of the Independent Electoral Commission suggested certain amendments to be made to the Referendum Act. It is not clear why the opportunity was not seized by the Attorney General to rephrase section 5 properly… I am of the view that he had the responsibility to see to it that the Secretary of the Independent Electoral Commission published a notice of the Writ in the Government Gazette,” Khumalo said of Skelemani.
For his part, the Secretary of the IEC was held responsible for the failure to publish the writ on the government Gazette.

“In my view the two state officials Mr. Skelemani and Mr. Seeletso are equally to blame for the postponement of the referendum which was to have been held on the 6th October 2001,” concluded Justice Khumalo as he apportioned the blame.
Government sources say at the time government’s overriding concern was to allay public doubts about Mogae’s ability to govern.

More to the point, the President’s intension and that of his team of close advisors, was not just to scare the IEC and the Attorney General into submission but also to portray the two as enemies of the people who had let down the country and the President.
It would seem like the strategy that played out, masterminded by Pilane (now by all accounts the President’s blue-eyed boy) was to humiliate the IEC and the Attorney General, scaring the two into kowtowing before taking responsibility and apologizing for all the mistakes and evils that consumed Mogae’s government.

That strategy only worked in one half as following the Commission’s Report; Seeletso issued a statement that amounted to a remorseful apology to both the President and the nation.
The other half of the strategy however backfired as instead of apologizing like a school boy to school head, Skelemani headed to the High Court, determined to clear his name from the whipping he received at the hands of Justice Khumalo.

The Mogae/Skelemani spat that unfolded at the High court turned into a national fetish and for months the nation watched with helpless anguish, consumed by disbelief as the State President and his Principal Legal Advisor became punching partners.

Here was a President dragged to court by his chief legal advisor on a point the Attorney General strongly felt was a matter not just of law but also of principle.

With either party unwilling to climb down for a compromise the battle degenerated into a political nightmare that threatened to whittle away whatever little remained from the already dented integrity of the presidency.
Murmurs were heard from the government enclave calling on Skelemani to step down.

Skelemani was also called on to use his personal money to pay the high charging South African advocates who represented him under instructions from Parks Tafa of Collins and Newman at the Khumalo Commission hearings. Skelemani made it clear he was at the Commission on his official capacity as Attorney General and, therefore, expected the state to foot his bill.

Convinced of his righteousness and well aware of the protection granted him by the constitution, Skelemani defiantly brushed aside the calls.
Mogae has already gone on record that his tiff with Skelemani was the hardest and most painful point of his presidency.

In a series of press conferences, the President paid tribute to Skelemani, stressing that he envied the man’s independence of mind, but still added that whatever their differences he expected the Attorney General, as government chief lawyer, to appear in person as the President’s counsel in court.

However one looked at the unfolding drama, it confirmed to many people including detractors that Skelemani’s belief in the rule of law was absolute – a belief that by far surpassed his regard for the worth of politics.
The conviction of purpose with which Skelemani fought his case made him come across as a man whose belief in the sanctity of the constitution is a near obsession.

Even those who had never had a soft spot for the man could not help but admire him for his unwavering regard of own principles.
A private lawyer who has sparred with Skelemani in court says the former Attorney General’s faith in law is driven not by ideology or politics but rather by his understanding of and devotion to the constitutional foundations of the country.
Acquaintances who worked with him at Attorney Generals Chambers are united in their account of his strong faith in personal principles.

They remember him as a true blue Kalanga nationalist, with rock solid intellectual credentials; a proud member of SPIL who never made an effort to hide his membership.

Former colleagues say Skelemani is not a nasty man. He is not malicious either; simply straightforward, principled and honest with a very forceful personality.
A former minister says Skelemani’s streak of independence and strong belief in personal principles makes it easy for him to bluntly express his views including within earshot of those who differ with him.

Thus, when he was blamed for government’s problems, he naturally felt hurt, deeply affronted and recklessly maligned.

With the President now in a box, it was getting clearer and clearer that of the two parties he was the one more ill disposed for an all out confrontation. A compromise was reached with a tacitly stitched press release vaguely spelling out the non-disclosure agreement of what was under the circumstances the best face-saving compromise Mogae could have hoped for under the sun.

Although the lawyers of the two parties were later to hammer an out of court settlement, the standoff between Mogae and Skelemani was to prove a defining moment in Mogae’s presidency.
Over and above exposing the extensive bickering inside government, the spat went further to lay bare Mogae’s limitations to control some of his officials in government.

As it turned out, the two parties were eager to sell their settlement as a win-win, but still the episode delivered a comprehensive national consensus that the State President had lost the battle to his Attorney General.
The episode further exposed, perhaps for the first time, Mogae as an ordinary mortal from whom little salvation if any could be expected.

With the eagle flying low, children started throwing stones.
Public criticism flowed from every angle and internal dissent mounted.
The President was personally held liable for having squandered his own honeymoon.
What started as isolated grumbling by some attendees of the Wednesday meetings spiraled into a more organised systematic dissent.

In all his troubles, Mogae’s lack of emotional ties to the BDP remained a fundamental problem.

Against all advice, he unrepentantly stuck to his technocratic roots and steadfastly spurned invitations to join any of the party factions.

His unyielding attachment to textbook economics with no traits of political populism that has always been BDP’s traditional heartland only served to spur his detractors to sell the line that he was a rookie who would never mellow into politics of the trenches.
He had few sympathizers from within many of whom had felt strongly repelled by his tactlessness in public, his apparent lack of social grace, brusque demeanour and offhand tactics against those he did not agree with.

Having worked to isolate all the strong voices inside the party he found himself alone. His determination to spurn the BDP traditions of inclusion became a source of his predicament.
Many senior BDP members, including some in cabinet were privately happy to see him in trouble.

Inside the BDP he was looked at as an aggressive intruder, a new comer who was contemptuously scornful of BDP’s consensual policies.

Thus when a flurry of controversy hit the media that together with his friends Mogae was a sleeping investor in Owens Corning, many celebrated and clamoured for more revelations.

The controversy took a turn for the worse when officials at the Ministry of Water Utilities and at the Ministry of Water Resources started getting suspicious that their Minister David Magang, an old friend of Mogae was doing the President’s bidding by insisting on giving the multi billion contract to Owens Corning.

Used to Masire’s politics of inclusion, many BDP MPs were not comfortable with Mogae’s brash management style of management. They were particularly irritated by his over reliance on a small band of unaccountable friends like Gobe Matenge, Louis Nchindo, Lawrence Lekalake and Ben Makobole; none of whom held an elected office.

Immediately upon taking office, Mogae engaged the media through a series of press conferences and addressed a few Kgotla meetings.
In all these, he bluntly spoke his mind and made no effort to assuage the simmering fears inside the BDP that he was not properly trained in the party’s culture.
Close watchers listened to him address public meetings and were shocked by his political tactlessness, his unbridled aloofness, his nerveless indifference and intellectual arrogance.

His popularity inside the BDP, never abundant to start with, dwindled and fermented into hatred that virtually guaranteed conflict.

Thus, whenever he ran into troubles, starting with a career threatening involvement in the multi billion Pula Owens Corning scandal, his injudicious handling of Khama’s sabbatical leave, his botched national referendum to his fight with Skelemani few tears were shed for the President who many had come to regard as divisive.

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