Legislators Unity Dow and Dumelang Saleshando have issued a statutory notice of their intention to sue the Botswana Energy Regulatory Authority over its decision to grant Botswana Oil Limited the exclusive right to import 90 percent of the petroleum products required by the Botswana market.
Dow and Saleshando are members of parliament for Botswana Congress Party (BCP).
The threat of litigation comes after government annouced that 90 percent of fuel imports required for Botswana will be imported by Botswana Oil Limited (BOL) effectuve April this year.ย
The Minister of Minerals and Energy, Lefoko Moagi said the decision is aimed at addressing the security of the supply of fuel. However, industry players are skeptical.
Such skepticism is expressed by the two legislators who plan to force government through legal action to make a U-turn on the decision. The duo has filed to the Attorney General, a statutory notice of intention to sue BERA (petroleum products) in terms of section 4 of the state proceedings (Civil Actions by or against the Government or Public Officers) ACT, Cap.10.01 of the Laws of Botswana. Dow and Saleshando intend to, at the expiry of 30 days, to launch court proceedings against the Attorney General of Botswana, in her representative capacity and other related parties, the litigation of which, seeks an order directing and setting aside BERA (petroleum products) Regulations as ultra-vires BERA Act.ย
The litigation also seeks an order declaring as null and void BERA (Petroleum Products/Reputations) as non-compliant with parliamentary procedure for enacting the said regulations.ย
Saleshando is challenging the BERA regulations in his capacity as Member of parliament for Maun West. Dow on the other hand has interests in the petroleum industry through her company called DA Petroleum, which holds a petroleum import license issued by BERA on the 13th of October 2023.ย
The new BERA regulations introduce several changes to the regulation of the petroleum industry. BERA recently granted BOL 90 percent fuel importation quota, with the remaining 10 percent reserved for regulated majority citizen owned entities.ย
Under the new regulations, the validity of the license shall be subject to the license complying with the terms and conditions of the license.ย
Dow and Saleshando point out that in terms of the new regulations, citizen entities are barred from supplying multinational oil companies, resulting in the MOCs sourcing 100 percent of the products from BOL, a state-owned company.ย
Further, they argue that majority citizen companies are barred from supplying the MOCs despite these companies holding more than 90 percent of the fuel market.ย
This according to Dow and Saleshando, effectively creates as a monopoly, where BOL is the primary fuel imported and supplier thereby stifling competition, growth and potential of citizen oil companies.
Further, Section 56 of the regulations requires that existing citizen import license holders must within 6 months from April 1st 2024 re-apply for import license. Dow and Saleshando, who are both members of the Botswana Congress Party (BCP) argue that the impact of such is that it discriminates against importers vis-ร -vis other types of licenses as other companies holding different types of licenses under the regulated activities in section 37 are not disadvantaged in a similar way.ย
โThe new requirements under this section of the regulations essentially impose unfair disadvantage on majority citizen owned companies that had already been lawfully issued with import licenses before commencement of the new regulations,โ Dow and Saleshando argue in the statutory instrument.ย
They further state that in promulgating the Statutory Instrument, Minister Lefoko Moagi did not subject the Regulations to the Parliamentary Select Committee as directed by the Speaker of the National Assembly.ย ย
