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The denigration of rule of law: Public interest and poking China in the eyes

THABO MASALILA
To borrow from American commentator Jonathan Chait’s recent warning, it is not farfetched to suggest Botswana’s perception of rule of law is akin to “a suspension bridge – upright, but with cables snapping, one by one”.

This stems from the contempt by the henchman, Peter Magosi.

The illegal assault of China Jiangsu (CJ) highlights Magosi’s impunity to undermine rule of law in the name of abuse of office. Magosi has crowned himself emperor and is assisted by government.

The evidence from PPADB shows a pattern. In a normal political environment, Magosi would have long bitten the dust. But we are in a new Botswana, a lootocracy – where the rule of law is seen in a complex way to propagate corruption.

CJ was a successful bidder and awarded a tender of P 1.56 Billion for the design, supply and build of a Water Distribution and Associated Works in Maun. The decision was communicated in the Daily News dated October 16, 2018 and a Weekly Tender Bulletin of  October 30, 2018.

Deafening silence forced CJ to write the Attorney General, PPADB and Ministry of Land Management, Water and Saniataion Services (MLMWSS). Circular No.07/2017 of PPADB ensures adherence to set time limits by procuring entities. A 10-day cooling off period should be observed after award of tender but prior to signing with the awarded bidder. In its letter of January 14, 2019 CJ sought to understand why it had not received written confirmation of the October 2018 award.

Responding on January 21, 2019, PPADB expressed constraint owing to new submissions from MLMWS. Acting PPADB Executive Chairman, Elijah Motshedi would confirm on February 7, 2019 a resolution to withdraw the tender for undisclosed reasons deemed classified at the time.

Behind the scenes was a back-and-forth beginning on December 14, 2018. Following undisclosed communication of November 16, 2018 to ineffectual Minister Kefentse Mzwinila, Magosi alleged “CJ had been involved in activities bordering on a threat to national security”.  A week later, Magosi penned another savingram to PS in the MLMWS with the contents similar to one sent to the unapt Mzwinila.

Notable in the second savingram of December 21, 2018 was “advice for the Ministry to terminate all deals with CJ due to security reasons”. Acting on the henchman’s instructions, on December 31, 2018 Kaboyamodimo Raitoko, Director in the Project Management Office (PMO) at MLMWS recommended to PPADB the withdrawal of the CJ tender and by extension awarding it to the next eligible bidder.

When Parliament in its wisdom conceived PPADB, it birthed an embodiment of public interest. The parastatal promotes fairness and integrity in public procurement that instil public confidence through accountable, equitable competition, and transparency. Section 52 of the PPADB Act, allows the Board to call any department to give information under oath.

Committed to its ethics, on January 10, 2019 PPADB Board deferred the decision on condition that certain information was availed. Topping the list to PMO was a request for MLMWS and Directorate of Intelligence and Security (DIS) to engage CJ on the decision to withdraw the tender. PPADB premised this on its desire to comply with natural justice and legitimate expectation thus bestowed on CJ by communication of October 2018.

Impressively, PPADB went further to ask DIS to provide guidance on whether CJ would be allowed to tender for future projects; implications for existing contracts; and for the Ministry and DIS to clarify if the risk was specific to certain individuals or the company as a whole. Nothing concrete was presented despite repeated calls by PPADB.

Court papers reveal a third savingram of February 8, 2019, a day after PPADB had informed CJ of its decision not to award the tender. Somewhere between the non-committal allegation “bordering on a threat to national security”, the henchman as accuser, prosecutor, jury and judge convicted CJ of involvement in “massive corrupt practices that threaten national security”. 

Magosi must harbour authoritarian desires. Isaac Kgosi earned eternal disgrace for crimes that remain unknown, but he operated with a level head. Minion Magosi in contrast, subverts legislated procedures in trademark

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shrouded secrecy of despotic nations.

Aggrieved by unfolding events, on February 15, 2019, CJ approached the courts to seek a review of the decision to withdraw the award of tender. With these proceedings underway, PPADB however went ahead and awarded the tender to Zhentai Group Botswana on March 25, 2019.

On March 26, 2019 CJ launched an urgent application for the court to set aside the award of the tender to Zhengtai, and an interdict for any parties to sign any contract pending the outcome of the review application. The matter was laid to rest on September 6, 2019 when Justice Khan dismissed CJ’s application, not so much on actions of DIS but on its urgency. 

On September 26, 2019, Justice Lesetedi of the Court of Appeal dismissed CJ’s application for an expedited hearing of its appeal and interim interdict pending that appeal. Legal decisions can be blinding. A thin line exists for law to move from being wrong to wrongful with ease. Justice Lesetedi rightly observed that, “the withdrawal of the award was made on the strength of an adverse letter from the DIS”.

At the High Court, Justice Khan highlighted the savingram from DIS, one not stated under oath, as having no evidentiary value. Khan lamented the manner in which the DIS made “allegations of an extremely serious nature with no supportive documentation in affidavit form to substantiate the allegations”. 

Justice Khan also questioned if the DIS had ascertained the propriety of its conduct in the tendering process, dismissing its input and completely disregarding as ineffectual the ‘mere correspondence’ between DIS and MLMWS. In the Moshupa Hospital tender, also involving CJ, Justice Jennifer Dube was of the view that ‘the interjection by DIS was unprocedural and outside the procurement process; and emerged towards the end without giving CJ an opportunity to be heard or defend itself’.

Justices Lesetedi, Dube and Khan all concur Magosi’s actions were uncalled for. Granting considerations outside the bidding process should be deemed unlawful. The cost difference in the Maun tender between CJ and Zhengtai was P305 million.

In Moshupa, CJ were the lowest priced technically compliant bidder lowest bidder. Zhengtai were the beneficiaries yet again and with a marked difference higher than CJ.

In essence, courts in Botswana say forget the constitutional right to protection; rule of law; good governance; and a clean government – we need public infrastructure. What then becomes the point of PPADB? That is the threat to rule of law. Rogues can interfere unlawfully only for the court to say public interest should prevail. But what greater public interest surpasses that encapsulated in the PPADB Act?

The High Court has unlimited original jurisdiction. It surprising therefore that in both instances the matters were limited to public interest.

That would suggest a fraudulently procured contract would suffice because the public needs the infrastructure. Courts cannot pronounce public interest as a politician, or the executive, otherwise there would be no separation of powers. The court’s primary issues is to say what the law is.

The courts like the Fourth Estate serve as guardians to public interest. But who guards the guardians? Magosi is a scarecrow – a device that abused his office to rob CJ and in the process denying expedited delivery of services. Society has also let its guard down.

The NPF, CMB and 100KM Masama Direct scandals are glaring examples of accountability thrown out of the window.  But is public interest served when the government loses P305 million? Whilst the CJ matter in its entirety defies logic, there is a victory worth celebrating. CJ is a Chinese state owned group company with world-wide branches.

In this blatant denigration of rule of law, Magosi’s antics earned Botswana the stripes of poking China in the eyes. Hail to the Poker of China and Long Live Peter Fana Magosi!



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