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Legal framework regarding Public Private Partnerships (PPPs) in Botswana

PPPs have increasingly become popular in Botswana due to the collaboration advantage between government and the private sector and the recognition that there is a benefit in pooling financial resources, skills and expertise to improve the delivery of basic services to all Batswana citizen. At a Sensitisation workshop on PPPs in 2019, conducted by the PPP Unit under the auspices of the Ministry of Finance, the PPP Unit, indicated that there are 16 pipeline PPP projects to fund infrastructure projects in areas such as water, energy, tourism, agriculture, education and health, priority being given to the maintenance of existing infrastructure. This is in alignment with the Botswana National Development Plan.

In light of PPPs becoming popular in Botswana, the Government of Botswana recognised the need to have a defined regulatory and legal statutory legislation governing PPPs. In previous years, PPPs were guided by a policy, the Public-Private Partnership Policy and Implementation Framework, 2009 issued by the Ministry of Finance (Policy).

Last year, 2021 the Government of Botswana repealed the Public Procurement and Asset Disposal Act (Cap 42:08) which was geared towards public tenders and replaced and re enacted the new Public Procurement Act, 2021 to explicitly make it vivid that the new Public Procurement Act, 2021 shall apply to all procurement activity including PPPs. This is a welcome development in our law as it prescribes institutional frameworks to be established when procuring PPP arrangements and there is no ambiguity regarding whom can be procuring entity and whether a procuring entity can delegate its functions.

Furthermore the new legislation has empowered the Minister of Trade and Industry (the Minister) to prescribe structural arrangement, procedure and processes relating to procurement activity under PPPs. No timeline has been set regarding these highly anticipated impending PPP regulations to be issued by the Minister.

Authored by Tatenda C Dumba


Partner at Minchin & Kelly
tdumba@minchinkelly.bw

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Victor Chilembwe, Associate Attorney / Corporate & Commercial

Victor, an Associate in our Corporate and Commercial Division, where he has been a key member of the firm’s team since 2021. With a comprehensive background in data protection, project finance, and legal compliance, Victor brings a wealth of expertise to the firm’s diverse practice areas. / See full biography

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Partner Tatenda Dumba spearheads Minchin & Kelly (Botswana)'s Banking and Project Finance Division. Her practice encompasses project finance, debt & equity markets, derivatives and hedging transactions and public-private partnerships (PPPs). This breadth of knowledge extends to mining, energy, retail and property development. Tatenda’s experience in advising multinational banks and development financial institutions on cross-border transactions makes her a sought-after expert in banking and finance, ISDA, custodian and insolvency matters. Recognized by Chambers and Partners (Band 3) for her finance and project acumen, she is a trusted advisor for a diverse spectrum of clients. She joined Minchin & Kelly (Botswana) in 2017 as a senior associate and her talent and dedication led to her well-deserved partnership promotion in July 2019. / See full biography

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