New tax agency chief: Were standards violated?

In December 2018, following the departure of Keneilwe Morris who had been at the helm of Botswana Unified Revenue Service (BURS) for about eight years after his appointment in 2010, government appointed Segolo Lekau to succeed him in an acting basis while they went on a hunting expedition for the right person. The mission took longer than expected, prompting a question in Parliament about why a substantive appointment could not be made after such a long time

In answer, the then Minister of Finance and Economic Development, Dr Thapelo Matsheka, said despite the position having been advertised several times, the recruitment exercise did not yield candidates fitting the criteria outlined. “As a result, the position is due for advertisement for the third time but on a wider scale, during this month,” he said, before he was removed as Finance Minister.

A year-and-a-half later, the ministry presented Jeanette Makgolo, who had its Deputy Accountant General – Compliance and Procurement, as the ideal person. But hardly a few months into her appointment, some suggestions within the BURS parent ministry are that the appointment of Makgolo may have been in violation of corporate governance standards because she was the outgoing board chairperson BURS before her appointment.

As part of promoting good governance, sometime back in 2011, the BURS Board adopted a Charter to regulate its business as well as the Terms of Reference and Regulations for its different Board Committees. The Board also has a Code of Conduct and Conflict of Interest Policy to promote ability to make impartial and unfettered decisions. It is these guiding documents which insiders say may have been flouted in the process that led to the appointment of an institution’s Board member to the position of its Chief Executive Officer.

“It needs no rocket scientist to have seen some degree of conflict there because she would at some point have presided over the recruitment process. What was her influence and how much did she know and what did or could she do with it,” hinted a source very close to the decision-making processes at the ministry.

According to this source, it appears that in a rush to close the matter, the ministry decided to flout some corporate governance rules, which is an unusual development for a ministry known for its sensitivity about corporate governance. “At what point did the former Board chairperson declare interest to the post or was she recruited into the post? These are some of the questions which have not been answered,” the source said.

As part of their powers, and in order to carry out its mandate, the Act empowers the Board to direct the Commissioner General to furnish it with any information, report or other document which the Board considers necessary for the performance of its functions. Further, Section 22 of the Act stipulates that the appointment of the Commissioner General shall be made for a period of five years by the minister on recommendations from the Board which may be renewed if the minister so decides.

POWERS OF THE TAX AGENCY BOARD

The BURS Board is made up of officials from the Ministry of Finance and Economic Development, the Ministry of Investment, Trade and Industry and the Bank of Botswana who serve as ex-officio members.

As chairperson of the board, Makgolo retained certain powers and directed the following functions: she gave direction to the Commissioner General in connection with management, performance, operational policies and implementation of such policies; approved such organisational structures as the Commissioner General considered necessary for the discharge of the functions of the Revenue Service; approved such administrative measures as were required to safeguard tax revenue; approved a code of conduct for the Revenue Service; and determined and appointed, on the recommendation of the Commissioner General, Revenue Commissioners, Heads of Department and other senior management personnel as stipulated in the Board’s powers and functions guidelines.

POST OF COMMISSIONER RAISED ON THE FLOOR OF PARLIAMENT

When the BURS Commissioner General’s vacancy was raised by the MP for Molepolole North, Oabile Regoeng, it ignited intense debate. Some opposition MPs alleged that the delays were not in any way linked to qualifications but were because the ruling party was still looking for a perfect “political” candidate to take over as is allegedly the case in many top positions in the public service and parastatals. They said BURS had in recent years been turned into an agency used for political gain by the ruling party as allegedly shown in the build-up to the 2019 elections through the “harassment” of the opposition leader Duma Boko.

THE POLITICS SURROUNDING BURS AND CONTROVERSIAL P50M FORGERY CASE

More than anything, Makgolo’s ascendency to the throne at the tax agency is a test of character and professionalism. Alleged politicisation of the agency by the ruling elite is a cause for concern and it remains to be seen on how she will handle the political pressure and temptations. Upon assuming office, she inherited a controversial high profile case in which her organisation is implicated in a forgery case against the former Botswana’s top spy, Isaac Kgosi.

Kgosi was arrested on a warrant purportedly issued by Magistrate Motsamai of Palapye, and the police claim they obtained the warrant after they made an application at the instance of BURS (police affidavit), a statement strongly denied by BURS.

Says Assistant Superintendent Koketso Mphapho Mbulawa of Botswana Police Service in his affidavit: “On or about 15^th January 2019 we received a report from BURS that Kgosi was wanted for the offence of intent to evade liability to tax and that BURS needs assistance to obtain a warrant of arrest for Kgosi who was due to arrive in Botswana, and we were tasked with the duty of applying for the warrant of arrest and effect same on Kgosi.”

However, in recent court papers BURS denies that it ever asked the police to obtain any warrant against Kgosi. Infact, BURS says it knows nothing about any such warrant. “Prior to the arrest, BURS had no role whatsoever to play in so far as the acts of applying for and obtaining the warrant of arrest against Kgosi. In any event, it is not the mandate of BURS to do so,” BURS Acting Commissioner General, Segolo Lekau, deposed.

The magistrate says she never issued any warrant and no application was ever brought before her in Palapye and further says he has no knowledge of the warrant even though it bears what appears to be her signature.

The police are now under pressure to disclose who at Palapye Magistrates Court signed the warrant of arrest against Kgosi but Palapye Magistrates Court has said that there has never been a file there involving an application for such a warrant of arrest.

The Income Tax Act does not allow detention of anybody for tax issues. It only permits the Commissioner to ask the Chief Immigration Officer to prevent a person from leaving Botswana until such time that arrangements are made for such a person to pay tax.