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Is the BR train accident investigation solid to withstand legal challenge?

SHARE   |   Monday, 03 February 2020   |   By Adam Phetlhe On Sunday
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Following the Botswana Railways (BR) passenger train accident on 10 December 2019 in which two employees tragically lost their lives with others grievously injured, a Board of Inquiry was established by the President in terms of the provisions of the Railway Accident Inquiry Chapter 70:02. The terms of reference of this investigation were issued by Hon Minister of Transport and Communications T.M Segokgo on 24 December 2019. One of the terms of reference that caught my eye says ‘The primary objective into this accident is the prevention of accidents and incidents.’ I would have thought the primary objective would be to find the causes of the train accident. Considering the seriousness government has attached to this passenger train accident and the levels of public interest as well, it is almost a given that some persons in the employ of BR will be fingered for their omissions or commissions for this tragedy. Consequently, serious life-changing decisions with respect to the said persons will have to be made following the findings and recommendations of the Board of Inquiry. Is the President, together with the Minister, satisfied that the inquiry is solid enough to withstand any legal challenge that could seek it to be reviewed and set aside when all is said and done? The answer will be conclusively provided by such legal challenge should it arise.

After reading The Patriot on Sunday newspaper dated January 19, 2020 with a headline ‘BR Commission is a witch-hunt’, I asked myself questions that I am raising in this conversation. The newspaper reportedly interviewed some senior BR managers who had their own misgivings about the investigation. Predictably, these could be those who may feel unsettled by the train investigation and are trying to pre-empt its findings and so on. They are reported to be suggesting that train accident investigators from South Africa or Zambia should have been roped in claiming that ‘…the inquiry is being turned into a platform to settle old personal scores….they want to push witnesses to put the blame on certain managers whom they had issues with while still employees of the company.’ The above comments, not entirely unexpected in the circumstances, could give credence to my view that the results of the investigation could be legally challenged. Their misgivings could very well be meritorious or not.       

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It is important to note that similar Presidential and other inquiries have already been reviewed with some set aside by the courts of law for various reasons. Martin Horwitz J as he was then, delivered a judgement (Citation: 1994 BLR 129 HC) at the Lobatse High Court on 23 February 1994 in the famous Kgabo Commission following complaints about issues of land allocation in Mogoditshane and other peri-urban areas. This Commission was set aside for amongst others, failure to hold the inquiry in public ‘as required by Section 4 of the Commission of Inquiry Act (Cap 05:02).’ According to this judgement “The essence of this application is whether the entire proceedings of that Commission together with any report issued pursuant thereto are null and void and should be entirely vitiated….After much anxious thought and consideration, I have come to the conclusion that if a case is made out that the report is flawed, this court might have a duty to say so.” The point I am driving is that Presidential Inquiries or Commissions can legally be challenged to the point of being set aside. The current BR Inquiry could face the same legal challenges. But what could potentially lead to the legal challenge? There could be many.

It goes without saying that at the end of the inquiry, some BR employees will be fingered for gross negligence following the findings and recommendations of the inquiry which negligence would have led to the fatal train accident. The end result of the findings and recommendations could potentialy  lead to summary dismissals considering the magnitude of the accident wherein lives were lost together with grievous bodily harm to the survivors. BR has had many train accidents but there has been no death. I stand corrected. The amount of damage to property in terms of the brand new locomotive, passenger coaches and the rail infrastructure also come into the picture. The fact that two people tragically lost their lives would mean that the fingered persons would potentially face the trial of murder or manslaughter depending on the prosecutor’s preference. So the fingered persons could suffer double jeopardy in terms of losing their jobs and facing capital punishment or a very long custodial sentence. Faced with these huge ‘life-threatening’ possibilities’, no one could possibly be expected go down without a big fight. Such fight will be to challenge and set aside the findings and recommendations of the inquiry that are of adverse consequences to them.        

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One of the points that could be raised is that the current Board was presumably established on or about 24 December 2019-the date terms of reference were released. Establishing an inquiry board way after the date of the accident is a serious delay wherein so much crucial information could have been lost. This would mean technically speaking, that the Board could not have possibly visited the accident site immediately or soon thereafter the accident to firstly  secure such site for gathering fresh and first-hand information critical to the investigations and secondly, performing tasks like sketch plans and accident reconstruction tasks as obtains in similar situations. The Minister of Transport and Communications Hon Thulaganyo Segokgo informed parliament late last year that he had received a preliminary report from a team he had established on the train accident in which he gave indications to the cause of the accident. It would appear this team has been abandoned due to the establishment of the current one. Is the current Board going to use whatever evidence was gathered by the Minister’s team? It comes as my argument that if the current Board was established soon after the accident, it could itself have gathered all the necessary information at the accident scene. The Railway Accident Inquiry Act provides that the Board is empowered to call eye witnesses to the accident. But do such eye witnesses take the Board’s mandate of gathering critical accident information? It is a debatable issue that could be expanded at challenge.

Investigating a passenger train accident of this severity and magnitude I want to believe, requires in- depth knowledge, years of experience and proven track record amongst others, in order to come to a credible conclusion on the professional side of things if you like. Most of the Board members investigating this accident are former BR employees endowed with so many years of working for the organisation in different capacities. Their credibility in knowing the operations of BR in their respective fields is not in my view, questionable. But it does not necessarily mean that a BR employee or a former employee is an obvious choice to be an accident investigator. Not every police officer is a motor vehicle accident investigator neither is every airline employee an aircraft accident investigator. Do the former BR employees in the Board have the requisite skills and experience in accident investigation? How many combined hours of work in accident investigations have they accrued? These are hard and difficult questions the investigation Board should be prepared to face and answer should the need arise. All of them could be in the witness box to answer some of these questions. Have the President and the Minister satisfied themselves that the profiles of these individuals in accident investigation sphere cannot be questioned by the fingered employees who may decide to challenge the findings and recommendations of the inquiry. While the Railway and Accident Inquiry Act does not define the technical requirements of investigators or assessors, I believe such requirements could be sharply raised when shove comes to push.

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In conclusion, I wish to make it abundantly clear that I am not casting any aspersions on the integrity of the persons serving on the Board of Investigations in any form or shape. I am simply saying should the findings and recommendations of their investigations be legally challenged, comfortable and uncomfortable questions on their train accident investigation competencies could be brought into sharp focus. Likewise, the fingered employees would have to have confidence in the requisite competencies of the Board in order to accept its findings and recommendations without any qualms. As I have said above, the solid nature or lack thereof of the investigation to withstand any legal challenge will be conclusively revealed as and when such challenge is launched. The consequences of failure to withstand legal change could be as deadly as the recent Australian bush fires or the Coronavirus. One hopes that this is not a witch-hunt process but the one that seeks to be fair to everyone including those who could be held responsible for the tragic accident  I am prepared to be persuaded as always. Judge for Yourself!

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