Former BCL mine liquidator, Nigel Dixon- Warren who raked millions before being relieved of his duties is not yet off the hook as government is currently considering actions to be followed against him. Minister of Mineral Resources, Green Technology and Energy Security, Eric Molale told Parliament that Dixon-Warren was advised by the Regulator against the flooding of the mine in one of the shaft extensions but he ignored the advice.
Molale said the No. 3 Shaft has not been flooded and water continues to be pumped out from the shaft as part of the broader Care and Maintenance activities. He said the former liquidator stopped dewatering the South East Extension Shaft in November, 2018. The water has now reached the targeted 1000 metres level below ground and dewatering has commenced to keep the water level below the 1000 metres and also avoiding the water running into No. 3 Shaft.
Molale was answering a question from MP for Selibe Phikwe West, Dithapelo Koorapetse who asked the minister to update Parliament on the flooding of South East Extension and Number 3 shafts at BCL mine, in particular to explain why these shafts were flooded, including who authorised the flooding, if this was in line with the provisions of the Mine, Quarries, Works and Machinery Act and whether the Director of Mines was consulted.
“Flooding of the South East Extension was solely the decision of the recently outgone liquidator. The regulator was merely informed, the regulator advised against it. The regulator’s warning was ignored by the liquidator,” said Molale. Keorapetse had also wanted to know if the flooding is likely to contaminate (possibly heavy metals) the local (SPEDU region) acquifers and the consequences on farming and human life, if the flooding has anything to do with the earth vibrations in the town, and if there is anyone who is held responsible, including legally, for the flooding and its aftermaths.
Molale said he cannot ascertain at this point if the flooding will contaminate the acquifers. However, studies will have to be conducted in order to determine and verify the spatial extent, sphere of influence, as well as the long term effects of the flooding of the shafts.
This will form part of the closure and rehabilitation for the shafts and this study is still to be commissioned. He revealed that his ministry has launched investigations into the nature and cause of the earth tremors. At this stage, it is suspected that the cause is from the fall of ground at the old mine workings. “We expect the studies to conclude this month (August, 2019),” he said.
He said the ongoing investigations into the cause of the earth tremors are expected to shed light into their short and long term effects, in addition to determining the nature and cause.Once the tremors are understood and the effects established, the due process of the law will be followed to determine liability and consequent remedies Member of Parliament for Jwaneng-Mabutsane made a supplementary question asking Molale what action will be taken against former liquidator Dixon-Warren. Molale answered that all options are being pursued as to what action can be followed.
Member of Parliament for Selibe Phikwe West Dithapelo Keorapetse came down hard on government like a tonne of bricks on Monday when 20 MPs voted against his Media Practitioners (Repeal) Bill of 2018. Only 14 MPs supported the repeal Bill. Government has for a long time refused to repeal the Act indicating that it is working on making some amendments to the Act.
Minister for Presidential Affairs, Governance and Public Administration Nonofo Molefhi told Parliament that the process they started in 2015 for the amendment to the existing law was to improve it to take into consideration some of the views from their engagement with private practitioners where they can create a self-regulatory arrangement. The minister stated that at the end they will be able to create an apex organisation that would be the Media Ombudsman.
Responding to debates, Keorapetse stated that the challenge is “the moment you say that you are legislating on regulation that by itself is at odds with self-regulation”. He said it does not matter that government currently has some journalists “in your pockets”or that some adverts are skewed towards certain papers as opposed to others - statutory regulation is an anathema of self-regulation. Neither does it matter, he said that government is “enticing some journalists with all sorts of things”, as long as statutory regulation exists, the media can never be said to be free. He said that publishers, media practitioners and the Law Society made it clear that they subscribe to a principle of self-regulation and do not want any state involvement in their work because they have mechanisms in place.
“They may be inadequate and need to be improved, but the thing is that legislation now is at odds with the principle of self-regulation, that is why they are saying, there is a need to repeal this law. “That is why they say in the first place, there was no need to have this law in place. So, even if you try and panel beat it, it does not take away the argument that they subscribed to self-regulation,” he said.But Molefhi responded that it is not a total overhaul, but a significant portion that has to be amended to incorporate the concerns which were previously raised by the private practitioners.
“During the period of 2014/2015 when we undertook consultations, the private practitioners were heavily involved in the re-orientation of what was going to become the Media Council Bill. That is the discussion that we want to conclude, and ultimately go through to Cabinet,” Molefhi said.
Keorapetse argued that self-regulation means that the reason why the media is called the Fourth Estate is that the presupposition is that there are three independent arms of Government being; Executive, Legislature and the Judiciary, and the fourth estate is the Media. Now, this media is not supposed to be subservient to any institution, it must be independent and be self-regulatory, he said.
“Why not leave them to self-regulate? Already there is a Press Council, Editors Forum, and Media Institute of Southern Africa (MISA) Botswana, why do you need the state now to start regulating the media? “The media is called the fourth estate primarily because it must be independent. Not just independent in terms of independence, but it must also be seen to be independent.” Keorapetse said it is their responsibility as Parliament to guarantee the freedom of expression, including freedom to hold opinions without being encumbered, and to also explicitly legislate on freedom of the media. “That will be enough, we do not have to come up with any law to attempt to regulate the media,” he posited.
Member of Parliament for Selibe Phikwe West, Dithapelo Keorapetse has appealed to cabinet to repeal the Media Practitioners Act, as it has never been implemented since it was introduced in 2008. The Media Practitioners Act of 2008, criminalises journalism, restricts media work and intimidates journalists. It promotes self-censorship by publishers, journalists and editors.
In a draft Bill which will be presented to the National Assembly, Keorapetse stated that this Act was however never implemented mainly because key stakeholders refuse to participate yet their participation is mandatory in the Act. “The majority of stakeholders subscribe to the international standard of self-regulation, media freedom and are of the view that it is a draconian and regressive law.
“It is intended therefore that by introducing this Bill, the status quo, continues until such time when a proper instrument is brought for Parliament’s consideration,” stated Keorapetse. The law was enacted under the pretext of providing for self regulation but fell short of the key principles of self-regulation and therefore undermines media freedoms.
Parliament and the government must accept the reality that it’s been impossible to enforce and implement the Act for ten years. “Why have a law that you cannot use for a decade? Even the Court of Appeal has advised that such laws should be repealed,” stated the MP. He explained that as the UDC they are of the opinion that since independence, freedom of information and freedom of speech (liberty to express opinions and ideas without hindrance and without fear of punishment) have been restricted and controlled by Botswana’s strong authoritarian state.
“Political leaders should answer to the public on the disposal of their powers and duties, act upon criticisms or demands made of them, and accept responsibility for failure, blunders, incompetence or deceit. This is only achievable if there is free media which is able to work without fear,” said Keorapetse. Keorapetse said they will argue that there is a need to reform restrictive laws that impede media freedom and freedom of information and expression.
“We will ask the government to review Laws such as the National Security Act, Corruption and Economic Crime Act, Penal Code, Cinematography Act, Immigration Act and Public Service statutes which contain media unfriendly provisions which must be looked into,” he said.
He added that reform of the state media is also essential and one way of ensuring greater transparency and accountability and this should be done through granting it autonomy by making it a public enterprise/parastatal with an independent board.
Member of Parliament for Selibe-Phikwe West Dithapelo Keorapetse is proposing that child marriages should be abolished.The Marriage Act prescribes that a person between the ages of 18 and 20 requires the consent of their guardian or parent to marry.
According to Keorapetse the Bill prohibits the marriages of persons under the age of 18, consistent with the Interpretation Act (Cap 01:04) and the Children’s Act. The Bill amends Section 15 of the Marriage Act by deleting it to ensure that child marriages are totally prohibited.
“As the UDC and other equally concerned Members of Parliament across the political divide, we are deeply concerned that our laws permit children under the age of 18 years to be married in accordance with customary law or any other religion, such as Islam, Christianity or Hinduism,” said Keorapetse.He said they are fortified in their view by the fact that the Marriage Act does not apply to such marriages in so far as the essentials of the marriages are concerned. The Marriage Act only deals with the essential elements of a civil marriage.
Keorapetse also explained that civil Marriage Act does in fact recognise such marriages and that the Marriage Act will not deal with the validity of such religions or cultural marriages. The Bill further proposes that the Marriage Act be amended to require the consent of both parents irrespective of their marital status or irrespective of the circumstances of the children.
The issue of child marriages is an issue that has been troubling the SADC region for a while now. In Zimbabwe for instance, the constitutional court, - the highest court in the land - declared marriages of children under 18 years of age unconstitutional and abolished the customary and religious practices allowing for it.
In 2016, the Southern African Development Community Parliamentary Forum (SADC-PF) adopted a Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage.The Model Law on child marriage requires member states, including Botswana, to harmonise their national laws to prevent child marriages, which is consistent with the African Union Campaign to End Child Marriage in a Generation.
The Model Law provides guidance to parliamentarians, ministries of justice, policymakers, and other stakeholders in SADC countries on how best to go about developing the national laws. Its primary aim is to eliminate several inconsistencies and gaps in the current laws that enable girls to be brides. “We have consequently drawn heavily from the Model Law in the proposed amendments we have developed accompanying this position paper”.
The defunct BCL mine employed over 500 employees on both permanent and temporary basis after its closure in October 2016, for care and maintenance. But the party for some of them has come to an end as they too face imminent retrenchment. Eric Molale, Minister of Mineral Resources, Green Technology and Energy Security told parliament that the BCL Liquidator has engaged a total of 477 permanent and 33 temporary workers at BCL.
He has also hired 34 permanent and two temporary workers at Tati Nickel Mine. MP for Selibe Phikwe West, Ditlhapelo Koorapetse asked Molale to state the number of workers employed by the BCL Liquidator for purposes of care and maintenance, what this care and maintenance entails and whether there is intention to reduce the number of these workers; and the number of foreign employees, their qualifications and positions.
Molale said the care and maintenance of the mine entails de-watering the mine shafts which requires pumping, ventilation, repairs of critical mining infrastructure and machinery required such as cages, pumping equipment, water treatment plants, the concentrator upkeep and surface area clean up. He said this was necessary as it is meant to maintain and prepare the assets for disposal. “My ministry has no intention to reduce the care and maintenance employment levels. In fact, I have asked the Liquidator to optimise employment levels to comply with the relevant legislation, in particular, as it relates to safety and health”.
The response prompted a supplementary question from Keorapetse. He said there is a memo or letter addressed to the care and maintenance staff that some of them will be retrenched. “Yes, I am aware of those letters. In the first instance, there are routine human resource processes when it relates to contractual matters. As I said in my answer, the halving or reduction or even stopping is not an option and that is what I made clear to the liquidator when I was in Selebi Phikwe last month,” said Molale. The minister said there is going to be a meeting next week between himself, the liquidator and the Registrar and Master of the High Court to try and resolve certain issues around the reporting channels that have to do with the liquidator doing his job and his reporting channels.
“There may be some conflicts as you are asking, but we are resolving them, because when there is a problem, we should not be part of the problem, we should be part of the solution,” said Molale. Keorapetse asked another supplementary question wanting to know whether the ministry has anybody to rely on in terms of information about what is going on at BCL during this process of liquidation, in terms of safe guarding the interest, especially of Batswana. He asked Molale if he has anybody with the requisite, necessary expertise to inform him about what is going on there besides the liquidator.
Molale answered in the affirmative stating that, “I do have the Minerals Development Company (MDC) that I rely on to give me the information”. He said that given the multi-sect oral nature of the liquidation, he has also set up a high level team to complement the work that is being done by the MDC in as far as “giving me up-to-date and correct information on a daily basis”.
Member of Parliament for Selibe Phikwe West Dithapelo Keorapetse has blamed government for the closure of BCL on not treating it as a parastatal or public enterprise.
In a letter he wrote to President Mokgweetsi Masisi, the MP argues that from the start there was a strong developmental role for BCL identified by government and from the outset, the government has been the custodian of BCL’s financial security. According to Keorapetse BCL was never formally a parastatal or public enterprise.
“But even when there were significant private sector shareholders in the early years, the government structured BCL in such a way to set it up as a recipient of government funds or funds raised by the government indirectly for the entity. The company was never set up as a normal commercial enterprise, with the flexibility necessary to be able to raise other money and determine its own financial fate.
“It was an immensely complicated financial structuring, enshrining BCL as a unique entity, and a bulwark of the country’s economy and the mainstay of the Selibe-Phikwe town’s economy,” reads the letter seen by this publication.
Keorapetse pointed out that in exchange for the implicit and explicit backing of government – the government never showed any intention other than to roll over BCL’s debts to the state.He stated that BCL became dedicated to providing a functioning operation that provided 5000 jobs directly and 10 000 indirectly.
He reveals in the letter that the debts were more akin to grants, thus entrenching the reality in the minds of the company, the government, Selibe-Phikwe residents and Batswana, that BCL occupied a special, protected place in the Botswana economy.
The legislator said from 2002 onwards, government increased its influence to complete control and ownership of the company, which crystallized with 100 percent control in 2008 after the departure of all external funders (they received about 5 percent of the nominal value of the debt owed to them - effectively, a full write-off).
“In the years that metal prices were high BCL managed to build up some cash. In the days when there was more private sector influence at BCL, these proceeds from the good times were used to invest in the company. This practice, built up over almost half a century, changed radically in 2014. It is important to note, that contrary to popular perception, BCL was in fact not given any money by government from 2002 onwards – all the debts dated before then.
The company had not been an active drain on the fiscus for 14 years when it was put into liquidation in 2016. By 2014, after the preceding price boom years, BCL built up its cash reserves.
It should have been allowed to use this money to invest in the business, for the inevitable downturn in prices – like it had before,” he posited Keorapetse pleaded with Masisi to make time to visit Phikwe and engage with fellow countrymen and women. “Please note that this letter will be shared with my constituents as these are their requests,” he said.