Legal framework regarding Public Private Partnerships (PPPs) in BotswanaGlobal Government Contracting: Insight Series
PPPs have increasingly become popular in Botswana due to the advantage of collaboration 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 citizens. 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 18 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. The list of PPP projects, which are at varying stages of development, are set out above.
“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 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. Currently, PPPs are guided by a policy, the Public-Private Partnership Policy and Implementation Framework 2009, issued by the Ministry of Finance (Policy).
In 2021, the Government of Botswana repealed the Public Procurement and Asset Disposal Act (Cap 42:08) which was geared towards public tenders, and replaced and re enacted the new Public Procurement Act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 clear that the new Public Procurement Act 2021 applies 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 who can be procuring entity and whether a procuring entity can delegate its functions.
Furthermore, the new legislation has empowered the Minister of Finance to prescribe structural arrangements, procedures and processes relating to procurement activity under PPPs. On 28 March 2023, the Minister issued the Public Procurement Regulations. However, the Regulations do not contain provisions relating to PPPs. We understand that separate statutory instruments may be issued to deal with PPPs, therefore, currently as it stands, the Policy will continue to be the guide relating to PPPs .