Reports have emerged about Opposition Alliance Spokesperson and Patriots for Economic Progress (PeP) President Sean Tembo’s professional misconduct in the public Tender for the Development of a National Framework for Alcohol and Substance Abuse in Botswana. According to the reports, backed by a full Botswana High Court Judgement, Mr Tembo was found to have lied about his qualifications and experience. The Court also found that Mr Tembo was given advance payment by the Government of Botswana for the sole purpose of data collection and that the money was not used for the purpose intended.
The court also found that Mr Tembo lied about the final report he produced. Mr Tembo claimed that the report was a product of scholarly joint effort by named behavioral experts when in fact the report a sole effort by what the court described as an unqualified person namely Sean Tembo.
Below is the Summary of the Judgement:
In _Enosyst Associates (Pty) Limited t/a Enosyst Consulting and Sean Tembo v Professor Keitseope Nthomang_ CVHGB-002065-14, this matter was an action for defamation, before the High Court of Botswana, it being alleged by Sean Tembo and his Consultancy company that the Defendant published certain words considered to be defamatory of his company and himself.
A very critical background to this dispute was the floating of a Tender for the Development of a National Framework for Alcohol and Substance Abuse in Botswana, by the Government of Botswana in or about May 2013. Sean Tembo’s consultancy company acting through him as its Managing Director, put together a Project Team and submitted a tender which was approved by the relevant authorities.
The dispute involved two of the key persons involved in the execution of the projects. The qualifications and experience of the key personnel were a critical component of tender evaluation. Indeed, the bidders were required to submit a Curriculum Vitae of each of the key personnel.
Among the terms of reference for the project, the necessity for evidence based reporting and recommendation was emphasized. The project was to be objectively assessed and also required empirical investigation and data collection. The Defendant’s case was that empirical investigation and data collection were pre-requisites and that his alleged defamatory letter was written in the light of a total disregard of these by Sean Tembo.
Part of the letter written by the Defendant which was the subject of the Defamation claim by Sean Tembo and his Company read as follows:
“…Note that in the proposal that won the tender he [Sean Tembo] presented himself as a Project Field Assistant. In my view this portfolio does not add much value to the execution of this project. Clearly, the man has never conducted any study on alcohol and substance abuse and this is evident in his profile presented in the proposal submitted to the Ministry. Given this reality, his conduct was clearly unprofessional and borders on dishonesty, deceit, fraud and corruption […]. Unprofessional behaviours displayed by ENOSYST managing director cannot be left unchallenged. It is toxic and dangerous and has the potential to get deep-rooted and cause irreversible harm to the consultancy business in Botswana, in particular the project in question. Put differently, if this behavior is allowed to prevail, poor data will be collected by non-professionals with serious legal, policy and programmes implications. The result will be a poorly developed National Framework on Alcohol and Substance Abuse, poorly developed interventions informed by poor quality data and disservice to Batswana.”
The Court made the following findings:
That it cannot be doubted, in the context, that holding out a makeshift report falsely as a product of a joint effort of several subject experts, as Sean Tembo in fact did, especially in a matter of national importance such as the formulation of a National Policy on Alcohol and Substance Abuse is unprofessional and a step short of dishonesty.
That qualification and experience, it was common cause, was not possessed by Sean Tembo or any of his subjects at his Company. The Defendant and other experts came in not as mere employees of Sean Tembo’s Company but as experts in their own right and the inclusion of their names added value to the tender submitted and the output of the project would either make them or tear apart their hard earned professional integrity.
That the Defendant had a right, if not a duty, to defend his name and professional integrity.
The Court was satisfied that the Defendant was better qualified to make professional evaluation of the work being carried out and his claim that the manner in which the project was executed and the reports tendered by Sean Tembo were wanting and fell below the standard of the best international practice. This was not contested in any manner whatsoever.
The Defendant in his long evidence punched many serious holes in the reports submitted by Sean Tembo especially the Final Comprehensive Report. He tested that report against the terms of reference and more specifically on the requirement for empirical data. This criticism took a particularly prominent place as the client ministry officials had themselves faulted the Inception Report initiated by Sean Tembo and his Company on account of its deficiency on the furnishing of empirical data. As it turned out, even the Final Comprehensive Report had the same deficiency. Indeed Sean Tembo conceded that he only collected data in Gaborone and one institution in Lobatse.
The Defendant further went on to demonstrate that no data collection tools were developed. The questionnaire that Sean Tembo attached to his report declaiming that it was a data collection tool developed for the purpose turned out to be a document uplifted from the World Health Organisation, used for a different purpose.
The most grievous part about the absence of investigation and collection of raw data and especially in a manner representative of the different regions of Botswana was twofold. First, what was presented as the basis for policy formulation on alcohol and substance abuse was a misrepresentation of the true state of affairs with high risk of failure of the resultant policy.
Secondly, it was common cause that Sean Tembo was given advance payment by the Government of Botswana for the sole purpose of data collection. It was not in dispute that such money was not used for the purpose intended even though Sean Tembo held out his report as if it was informed by empirical data.
Thirdly, the final report was held out as if it was a product of scholarly joint effort by named behavioral experts when in fact and in truth that was not so but a sole effort by an unqualified person namely Sean Tembo.
The Defendant considered such conduct as stated above to be bordering on dishonesty and unprofessionalism. The Court took the view that that description was too mild as really such conduct was dishonest and most likely amounted to an attempt to obtain by false pretences, if not stealing by conversion, if one had regard to the sum of about P100, 000.00 (one hundred thousand pula) received by Sean Tembo and his Company as advance payment for empirical investigation and data collection, which was not carried out either at all or in a representative manner, let alone at national level as the terms of reference clearly intended.
The critical words attributed to the Defendant were found by the Court to have been true and correct in every respect. The critical words made by the Defendant whose professional integrity was being compromised or at the minimum being put at risk, were not only on point but absolutely necessary as to do otherwise would be interpreted as complicity and not unjustifiable, for he would have been remunerated by Sean Tembo and his Company for the silent conspiracy when no work had been done by him.
By speaking out, the Defendant risked losing the consultancy and a handsome payment and he opted to preserve and shield his conscience and the profession to which he belongs. The Court commended him for that and opined that the nation needed more people like the Defendant.
The Court went further to observe that Sean Tembo and his Company should consider themselves fortunate that the client ministry officials went into hibernation, if at all they saw the contents of the Defendant’s letter. Sean Tembo’s conduct was the kind that required further investigation and even the involvement of law enforcement agencies.
Although Sean Tembo and his Company since submitting the final report, and supposedly their bill, they did not really bother to demand payment for the work. The Court was still of the view that what was done deserved to be investigated to protect the public interest and consultancy services and the Court so recommended to the Permanent Secretary, Ministry of Health (Botswana).
The Court was satisfied that what the Defendant said, even if it was to be said to have been defamatory, it was in the public interest and he had a duty as the lead consultant to tell the truth to the client ministry and further that the communication was absolutely necessary and directed to the relevant persons and therefore privileged. In conclusion, the Court found that any of the alternative defences available to the Defendant would succeed and the plaintiffs’ action would fail. The Plaintiffs’ action was dismissed with costs.