Corporate Governance on trial at BIUST
A classical case of boardroom brawl and corporate governance entanglement has been exposed at the Botswana International University of Science and Technology (BIUST), Botswana Guardian has established.
The University is currently conducting a protracted disciplinary hearing against one of the university Council member who is also a lecturer in the Computer Science Department. The council member is a whistleblower, whose case sparked controversy when the University approached the High Court to interdict him from sharing confidential information to third parties, a case the University lost and BIUST has since launched an appeal.
The University however went ahead and instituted a disciplinary process against Dr. Malatsi Galani. This was after the University in January this year engaged a South African Firm, FTI Consulting South Africa (Pty) Ltd to provide a forensic investigation and consulting service. According to a confidential Report seen by this publication, prepared by the Firm’s Senior Managing Director, Calvin Isaacs, they investigated the unauthorised use and/or distribution of confidential client (BIUST) documents and/or information; identify those persons responsible for the unauthorised use and/or distribution of said documents and/or information; establish how these documents were obtained and/or accessed; recommend measures to prevent this occurring in the future; as well as report on the findings.
In his defence, in a statement leaked to Botswana Guardian, Dr. Galani revealed that upon receiving the whistleblower envelope, he contacted the Chairperson of the BIUST Council, Dr. Sedi Maphanyane and at the said meeting, they discussed the whistleblowing report. “She even suggested we should not report this to external entities outside the University. These would be the Directorate on Corruption and Economic Crime (DCEC), the Directorate of Intelligence and Security Services (DISS), and the Botswana Police Service (BPS) as she strongly believed the University should not hang its 'dirty linen' outside. Thus, we agreed to direct this whistleblower report to the Chairperson of the Council, Human Resources and Remuneration Committee (CHRRC), Edwin Elias,” reads the statement which was presented before the Disciplinary Committee chaired by attorney, Benjamin Bogopa of Bogopa, Manewe, Tobedza & Co.
He revealed that a meeting was arranged with Elias and the same whistleblower report was discussed. He stated that post the meeting, both Elias and Dr. Maphanyane stated that for them to act, “I must write a brief to Mr Elias, otherwise it is a simply hearsay.” He added that Dr Maphanyane lamented that in the brief he must seek protection against any acts or anyone who might use it to come after him.
He said thereafter the CHRRC committee convened. The committee is composed of Chairman – Mr Edwin Elias, Member – Mr Letsapa Mojaphoko, Member – Mr Obuile Morewane, Member – Mr Kgosi Michael Maforaga, Vice Chancellor – Prof Otlogetswe Totolo (EMT), Deputy Vice Chancellors (ex Officio) (EMT), Director of Human Resources (ex Officio) and Secretariat – Secretary to Council Papiso Makwati. Prof Totolo and his deputies were excluded from these meetings due to conflicts of interest.
“However, the Secretariat to the committee is the University Council Secretary also employed as the Director of Legal Services of the University, Papiso Makwati. The secretary directs the proceedings in conjunction with the Chairperson and further advises the committee on all matters or counsels on corporate governance principles. It is a powerful position in corporate governance. In reference my Council Chair brief letter dated 25th of September 2022 to Mr Elias, states the VC sought to access benefits from an expired contract and speaks to the hire of Prof Totolo as a Professor in Earth And Environmental Sciences. For these two allegations, Mr Makwati provided a legal opinion (dated September 2022 and August 2021) that led to these two matters being approved by the respective DVCs,” reads the statement of defence.
Prior to the investigations by FTI Consulting on the leakage of confidential information, records show that Dr. Galani was slapped with a letter of 'show cause why a disciplinary hearing could not be conducted against' him for misconduct and unsatisfactory work performance, false evidence on his research leave report and insubordination. It has been alleged that Makwati sat in the CHRRC investigation committee and drafted the questions for the committee to be asked Vice Chancellor Prof Totolo and heads of respective units (being, Director of Physical Planning and Campus Facilities (PPCF), Director Human Resources (HR), Director of Finance; DVC Finance and Administration) within the University.
A Source said, “Mr Makwati was conflicted on this investigation. He was not supposed to allow himself to be part of something he knew, directly investigating allegations which he offered legal advice. The opposite would have brought scrutiny into his legal advice.”
The Galani Hearing
The disciplinary hearing of Dr Galani is proving to be a pricey exercise for the University. The hearing itself started sitting on April 11, 2023, up to today, with the cost now estimated to be close to P1.5 million, which is inclusive of logistics among them booking of space in hotels in Palapye for the process. Dr Galani is on a full pay suspension. The case continues on the 27th of November 2023. The case now holds the record for the longest hearing and most expensive for BIUST. It is now feared within the BIUST staff community that whistleblowing in BIUST will no longer exist nor be permitted. It is feared that a precedent would be set and those who see 'something and say something' would be persecuted.
FTI Consulting South Africa recommended in its report that a disciplinary hearing should be instituted against Dr Galani for the unauthorised use and distribution of confidential information. The firm concluded that Dr Galani by his own admission authored the letter of complaint. Reads the confidential report dated 9th March 2023: “Galani believed that he had reported the matter under the provisions of the Whistleblowing Act (Act 9 of 2016) and further believed that he would receive the necessary protection prescribed by the Act. It is evident that Galani did not report the matter to an authorised person as prescribed by the Act, hence cannot enjoy/be afforded the level of protection prescribed by the Act. Section 8 of the Act stipulates should a person wish to report a matter in terms of the whistleblowing Act, the said person ought to report same to an appointed authorised person as stipulated in the Act.”
The report indicates that Dr Galani reported the matter to the chairperson, who is not recognised as an authorised person in terms of the Act. This however has been contradicted by the judgement of Justice Reuben Lekorwe delivered on the 24th of March 2023. The judge said Dr Galani upon laying his hands on the information, which he prima facie viewed as amounting to maladministration on the part of the executive of BIUST, informed the Chairperson of the Council who then referred him to the Chairperson of the Human Resources Committee of the Council and circumstances under which the information was passed onto them, maintained the secrecy with which the information was treated.
According to the judge, there is nothing to suggest that Dr Galani intended to malign the VC or was motivated by ill will in making the report. Justice Lekorwe stated that as a matter of fact, his request was that the allegations by those considered to be the persons authorised or entitled were to receive such information and act on it. He said Dr Galani’s allegation that the union was only informed much later after his suspension is unchallenged or indisputable and must be accepted.
“The timing of the attempted engagement by the union with the university; that is towards the end of January 2023 after the Respondent’s suspension, gives credence to the Respondent’s allegations. It seems to me that the Respondent’s release of the confidential information to the members of the council, was for the limited purposes of investigation of the alleged impropriety and to the union, for purposes of advice and possible representation,” said the judge.
Justice Lekorowe further stated that in his view, the disclosure is one protected under the whistleblowing provisions. He said this is one case where he thinks the public interest in whistleblowing must trump the employer’s interest in maintaining confidentiality. So, enforcing the confidentiality agreement in the present context would be against public policy supporting whistleblowing, he added.
In a Brief made to the university council, there was a query on the accommodation of the VC, household furnishing in the value of P400,000.00, entertainment, periodic alcohol purchase for VC’s villa and provision of official transport. It is argued in the Brief dated 25 September 2022 that such benefits were for an expired contract and not the one entered into on March 17th 2021. There is also an allegation of abuse of the EMT University Credit Card.
Legal advice was given by the Director of Legal Services, Makwati that household furniture and appliances should be bought for the house of the VC. Makwati, in a memorandum to the Deputy Vice Chancellor for
Academic Affairs, argued in his legal opinion that Prof Totolo’s application must be placed before the committee of Appointments, Promotions and Review as his appointment as a professor is not a Council matter and therefore will not require any Council intervention beyond the University Appointments, Promotions and Review Committee.