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Kamal vs BDP comical court exchanges

Kagisano Tamaocha, a lawyer representing Kamal Jacobs of Lobatse constituency in a case which he is challenging legitimacy of President Mokweetsi Masisi as the Botswana Democratic Party (BDP), turned the court into a circus during festive season, earning the wrath of Judge Michael Mothobi in the process. 

The matter came before Justice Mothobi during the festive season as an urgent application and was heard on the 27th and 28th of December 2018. The matter was supposed to be argued on four points: admission of Attorney General as a friend of the court; urgency; legal immunity and misjoinder.  The court started with arguments on admission of AG of which AG was granted application to be cited as a friend of the court.  After that, it was the urgency argument, of which the ruling will be delivered next week Monday.

Should the court rule that the matter is urgent, the parties will then proceed to argue on the immunity leg followed by misjoinder, and if not, the case will have to follow the normal route and wait for the date in which the court will decide to allocate a date. Below is the interchange between lawyers of the three parties and the judge as they had heated arguments.

Kagisano Tamocha: This matter is urgent my Lord. The degree of urgency varies from case to case. By virtue of Masisi not being president of the BDP, he had no powers to appoint Appeals Board Committee which later on dismissed my client’s application to have a re-run in Lobatse. The board which dismissed my client was unconstitutional because Masisi is not the legitimate President of the BDP.

We are saying this because even before my client consulted me, there was an article in Mmegi newspaper where the former President Ian Khama claimed he is still the president of the BDP Judge: How do you want me to treat that information when it was written by a third party? Did you even have Khama endorsing an affidavit confirming the said article?

Tamocha: No, we did not serve him.
Judge: So what do you want the court to do with this piece of information? If you did not serve Khama and you do not have his affidavit claiming the said position, do not mention anything to me about him. He has never sworn to an affidavit on the said allegation.
Tamocha: I find myself in a frying pan.
Judge: When did your client first become aware there was some kind of alleged controversy regarding the leadership of BDP?
Tamocha: On October 26th.
Judge: Will it be wrong for me to assume he got to know after his application to have a re-run was rejected?
Tamocha: It was during the consultation when I told him about the article.
Judge: Are you appearing as a lawyer or a witness?
Tamocha: Both
Judge: I have never seen that! A lawyer! And you are even talking about an article by a third party!
Tamocha: I have deposed an affidavit that I told my client about the said article.
Judge: Do you know that I can have the Law Society investigating you for doing that? How can a lawyer do that?
Tamocha: I did not know that it was wrong to do that. I will scrap off the affidavit.
Judge: It is impermissible…And if we accept this evidence, it means this whole application was triggered by an article…And tell me what was your client doing from October 26?
Tamocha: There are events that transpired from October 26. My client was not happy and he appealed and on November 26, he became aware of his disapproval. So, I want the court to give him benefit of the doubt that despite that information being in the public domain, he might not have seen it.
Judge: Okay…except that on the 23, like you said, you disclosed it to him. You must know how to keep confidential information as a lawyer.
Tamocha: He got knowledge that his appeal didn’t succeed on October 26, and he launched this application on December 17. And his main prayer is to have a re-run in Lobatse. If the matter is not heard on urgency, the general elections might come before he is heard.
Judge: How is a re-run possible when you haven asked me for a review? This argument is misleading and misplaced. It does not understand the power of this court. This is the case which requires case management procedures. There are so many different views of facts here….You see, there is not even an affidavit from anybody that, ‘I am the true leader of BDP,’ or that, ‘I have been appointed by the true leader to be a leader, and not Masisi.’
Tamocha: You are putting me in a frying pan. And I’m trying to run away from that.
Judge: (smilling) But I am not chasing after you…I am right here…Should I really continue to go on with this matter? Maybe take a moment with your client.
Tamocha: He is not here.
Judge: But you have his phone.

Court adjourns for 15 minutes.

Court resumes

Tamocha: I was not able to get hold of him. I will stick with the arguments I have already placed before court…..

Meanwhile, BDP lawyer Busang Manewe implored the court not to treat the matter as urgent, saying Kamal has not behaved like a candidate of urgency. Manewe: If the applicant does not swiftly and immediately approaches the court, they have waved their urgency. This Kamal joined the BDP on November 9, 2016. President Masisi was sworn as President on April 1, 2018, and he simultaneously became president of the BDP. For almost two years, Kamal has been a member of the BDP, and when Masisi was sworn as president, he was still a member.

Masisi continued to carry duties as the BDP president and nobody challenged him; he addressed Central Committee of the BDP, and nobody challenged him. On August 11, 2018, he addressed a meeting of all 38 held constituencies at Palapye, and Kamal was in attendance. The key issue at the meeting was primary elections. Kamal never asked Masisi who he was, and he goes on to take part in primary elections.

Judge: What if he was waiting for the right time?
Manewe: Out of disgruntlement of losing primary elections, he appealed, and on November 14 he was advised that his appeal was not successful. And he does nothing, five days later, he sent his lawyer to come collect his letter. This shows there is absolutely no urgency about it.

What was he doing all these six days after his appeal was dismissed?
Judge: What if he was still consulting?
Manewe: As an applicant he ought to have followed up his lawyer if he knew his matter was an urgent.
Judge: How can an applicant bother a lawyer when a lawyer understands cases better?
Manewe: He ought to have known that when you approach the court on urgency, you disrupt the internal business of the court.
Judge: That is not true. I was no interrupted. I am sitting here as a vacation judge. The court plans for such matters.
Manewe: I submit that this applicant does not meet the threshold of urgency set by the courts. His application should be dismissed with costs.

HOW AG WAS ADMITTED AS A FRIEND OF THE COURT

Chief State Counsel Otlaadisa Kwape: I have just received an answering affidavit from the applicant this morning in court and I have sent it to AG (Abraham Keetshabe) to respond since he is the one who deposed the founding affidavit. He has showed interest to respond on two points.
Judge: If he is really interested in this case, he ought to be here with us.
Kwape: We can adjourn for two hours.
Judge: So, AG is in the office and wants us to adjourn? Can’t he send someone or talk to you through technology? We have postponed this matter for so long, it will be prejudicial!
When you want to come in as a friend of the court you are now in an area called ‘discretion’ of the judge. And you tell me AG is sitting in the office and wants us to wait, it does not please me at all… He should himself be here next to you bagging you with your coat. I know these things. I have represented AG before.
But because you want to do this to help me deal with this matter, I will wait. I am sorry this case is going this way, but it is an important case, and enough information will help me as a judge so that I do not make mistakes. Remember I’m just alone in this case though cases of this nature would attract at least five judges.
Go and convey my sentiments to your principal and tell him not to forget he is coming to me as a friend of the court.

Court adjourns
Court resumes

Kwape: We just filed a replying affidavit for an application to be granted leave as a friend of court or as a co-respondent in the proceedings. In our arguments we are citing the case of Professor Kenneth Good.
Judge: Don’t come to me and cite rules of the Court of Appeal (CoA) unless the case was to decide on a High Court decision.
Kwape: it was to decide a decision of the CoA. But, as the highest court, its decision binds any other court.
Judge: It is not true. Not everything is binding. Here in the High Court we do not follow decisions of the CoA blindly. It is not just a general blanket statement. That is what we teach first year students wrongly!
…It is going to be a long day for you, I see…
Kwape: Indeed my Lord…According to Section 52 of the Constitution of Botswana, AG is the Principal advisor to the government. AG has an interest in interpretation of certain provisions of Botswana constitution, which seeks to protect the president of legal proceedings in his private capacity. According to Section 51 Rule 41 (II) anything that HE may do, he cannot be sued for any act that is done privately, but anything done officially he can be sued.
And here we cite the Motswaledi case…May his soul rest in peace
Judge: This is not a church or something, just go straight to your point. Tell me how that case is relevant.
Kwape: The then President, Khama, was spared from being sued for things he has done privately.
Judge: But how do you fit in here as AG. Have I said I need a friend to assist?
Kwape: The second respondent in this matter is President Masisi, and Rule 41 is entitled to protect the incumbent president from being sued, in particular things he did in his private capacity.
Tamocha’s turn to argue
Tamocha: AG should not be accepted as a friend of the court in the case. The same case AG cited of Good, the role of a friend of court is to draw the attention of the court to relevant matters of law to which attention would not otherwise be drawn. AG has stated that their interest is in interpretation of the law, and this has already been raised by the first respondent, the BDP.
Judge: Isn’t it a different approach? Here they say automatically they are joined. They are now telling the duties of AG to the president, and this is a different thing from what the BDP is arguing. They are here saying they are obliged by legislation and it has not been raised by other respondents.
Tamocha: They are not bringing anything new. It depends on the matter
Judge: Exactly their point…
Tamocha: We submit that their application is improper

At the end, the judge granted AG application to be cited as friend of the court, and the court is yet to give reasons on its decision.

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DIS blasted for cruelty – UN report

26th July 2022
DIS BOSS: Magosi

Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.

Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.

She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”

Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.

On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.

“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.

One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.

The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”

The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.

Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.

Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.

The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.

The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.

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Stan Chart halts civil servants property loan facility

26th July 2022
Stan-Chart

Standard Chartered Bank Botswana (SCBB) has informed the government that it will not be accepting new loan applications for the Government Employees Motor Vehicle and Residential Property Advance Scheme (GEMVAS and LAMVAS) facility.

This emerges in a correspondence between Acting Permanent Secretary in the Ministry of Finance Boniface Mphetlhe and some government departments. In a letter he wrote recently to government departments informing them of the decision, Mphetlhe indicated that the Ministry received a request from the Bank to consider reviewing GEMVAS and LAMVAS agreement.

He said: “In summary SCBB requested the following; Government should consider reviewing GEMVAS and LAMVAS interest rate from prime plus 0.5% to prime plus 2%.” The Bank indicated that the review should be both for existing GEMVAS and LAMVAS clients and potential customers going forward.

Mphetlhe said the Bank informed the Ministry that the current GEMVAS and LAMVAS interest rate structure results into them making losses, “as the cost of loa disbursements is higher that their end collections.”

He said it also requested that the loan tenure for the residential property loans to be increased from 20 to 25 years and the loan tenure for new motor vehicles loans to be increased from 60 months to 72 months.

Mphetlhe indicated that the Bank’s request has been duly forwarded to the Directorate of Public Service Management for consideration, since GEMVAS and LAMVAS is a Condition of Service Scheme. He saidthe Bank did also inform the Ministry that if the matter is not resolved by the 6th June, 2022, they would cease receipt of new GEMVAS and LAMVAS loan applications.

“A follow up virtual meeting was held to discuss their resolution and SCB did confirm that they will not be accepting any new loans from GEMVAS and LAMVAS. The decision includes top-up advances,” said Mphetlhe. He advised civil servants to consider applying for loans from other banks.

In a letter addressed to the Ministry, SCBB Chief Executive Officer Mpho Masupe informed theministry that, “Reference is made to your letter dated 18th March 2022 wherein the Ministry had indicated that feedback to our proposal on the above subject is being sought.”

In thesame letter dated 10 May 2022, Masupe stated that the Bank was requesting for an update on the Ministry’s engagements with the relevant stakeholder (Directorate of Public Service Management) and provide an indicative timeline for conclusion.

He said the “SCBB informs the Ministry of its intention to cease issuance of new loans to applicants from 6th June 2022 in absence of any feedback on the matter and closure of the discussions between the two parties.”  Previously, Masupe had also had requested the Ministry to consider a review of clause 3 of the agreement which speaks to the interest rate charged on the facilities.

Masupe indicated in the letter dated 21 December 2021 that although all the Banks in the market had signed a similar agreement, subject to amendments that each may have requested. “We would like to suggest that our review be considered individually as opposed to being an industry position as we are cognisant of the requirements of section 25 of the Competition Act of 2018 which discourages fixing of pricing set for consumers,” he said.

He added that,“In this way,clients would still have the opportunity to shop around for more favourable pricing and the other Banks, may if they wish to, similarly, individually approach your office for a review of their pricing to the extent that they deem suitable for their respective organisations.”

Masupe also stated that: “On the issue of our request for the revision of the Interest Rate, we kindly request for an increase from the current rate of prime plus 0.5% to prime plus 2%, with no other increases during the loan period.” The Bank CEO said the rationale for the request to review pricing is due to the current construct of the GEMVAS scheme which is currently structured in a way that is resulting in the Bank making a loss.

“The greater part of the GEMVAS portfolio is the mortgage boo which constitutes 40% of the Bank’s total mortgage portfolio,” said Masupe. He saidthe losses that the Bank is incurring are as a result of the legacy pricing of prime plus 0% as the 1995 agreement which a slight increase in the August 2018 agreement to prime plus 0.5%.

“With this pricing, the GEMVAS portfolio has not been profitable to the Bank, causing distress and impeding its ability to continue to support government employees to buy houses and cars. The portfolio is currently priced at 5.25%,” he said.  Masupe said the performance of both the GEMVAS home loan and auto loan portfolios in terms of profitability have become unsustainable for the Bank.

Healso said, when the agreement was signed in August 2018, the prime lending rate was 6.75% which made the pricing in effect at the time sufficient from a profitable perspective. “It has since dropped by a total 1.5%. The funds that are loaned to customers are sourced at a high rate, which now leaves the Bank with marginal profits on the portfolio before factoring in other operational expenses associated with administration of the scheme and after sales care of the portfolio,” said the CEO.

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Botswana ranked 129 in female MPs representation

26th July 2022
Minister of Finance & Economic Development Peggy Serame

The Global Gender Gap Index, a report published by the World Economic Forum annually, has indicated that Botswana is among countries that fare badly when it comes to representation of women in legislative bodies.

The latest Global Gender Gap Index, published last week, benchmarks the current state and evolution of gender parity across four key dimensions (Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment). It is the longest-standing index which tracks progress towards closing these gaps over time since its inception in 2006.

This year, the Global Gender Gap Index benchmarked 146 countries. Of these, a subset of 102 countries have been represented in every edition of the index since 2006, further providing a large constant sample for time series analysis.

Botswana ranks number 66 overall (out of 146 countries), with good rankings in most of the pillars. Botswana ranks 1st in Health and Survival, 7th in the Economic Participation and Opportunity, 22nd in Educational Attainment, and 129th in Political Empowerment.

The Global Gender Gap Index measures scores on a 0 to 100 scale and scores can be interpreted as the distance covered towards parity (i.e. the percentage of the gender gap that has been closed). The cross-country comparisons aim to support the identification of the most effective policies to close gender gaps.

The Economic Participation and Opportunity sub-index contains three concepts: the participation gap, the remuneration gap and the advancement gap. The participation gap is captured using the difference between women and men in labour-force participation rates. The remuneration gap is captured through a hard data indicator (ratio of estimated female-to-male earned income) and a qualitative indicator gathered through the World Economic Forum’s annual Executive Opinion Survey (wage equality for similar work).

Finally, the gap between the advancement of women and men is captured through two hard data statistics (the ratio of women to men among legislators, senior officials and managers, and the ratio of women to men among technical and professional workers).

The Educational Attainment sub-index captures the gap between women’s and men’s current access to education through the enrolment ratios of women to men in primary-, secondary- and tertiary-level education. A longer-term view of the country’s ability to educate women and men in equal numbers is captured through the ratio of women’s literacy rate to men’s literacy rate.

Health and Survival sub-index provides an overview of the differences between women’s and men’s health using two indicators. The first is the sex ratio at birth, which aims specifically to capture the phenomenon of “missing women”, prevalent in countries with a strong son preference. Second, the index uses the gap between women’s and men’s healthy life expectancy.

This measure provides an estimate of the number of years that women and men can expect to live in good health by accounting for the years lost to violence, disease, malnutrition and other factors.
Political Empowerment sub-index measures the gap between men and women at the highest level of political decision-making through the ratio of women to men in ministerial positions and the ratio of women to men in parliamentary positions. In addition, the reported included the ratio of women to men in terms of years in executive office (prime minister or president) for the last 50 years.

In the last general elections, only three women won elections, compared to 54 males. The three women are; Nnaniki Makwinja (Lentsweletau-Mmopane), Talita Monnakgotla (Kgalagadi North), and Anna Mokgethi (Gaborone Bonnington North). Four women were elected through Specially Elected dispensation; Peggy Serame, Dr Unity Dow, Phildah Kereng and Beauty Manake. All female MPs — save Dow, who resigned — are members of the executive.

Overall, Botswana has 63 seats, all 57 elected by the electorates, and six elected by parliament. Early this year, Botswana Democratic Party (BDP) secretary general and Gaborone North MP, Mpho Balopi, successfully moved a motion in parliament calling for increment of elective seats from 57 to 61. Balopi contented that population growth demands the country respond by increasing the number of MPs.

In Africa, Botswana play second fiddle to countries like Rwanda, Namibia, South Africa, Burundi, and Zimbabwe who have better representation of women, with Rwanda being the only country with more than 50 percent of women in parliament.

The low number of women in parliament is attributed to Botswana’s current, electoral system, First-Past-the-Post. During the 9th parliament, then MP for Mahalapye East tabled a motion in parliament in which she sort to increase the number of Specially Elected MPs in parliament to augment female representation in the National Assembly.

The motion was opposed famously, by then Specially Elected MP, Botsalo Ntuane, who said the citizens were not in favour of such a move since it dilute democracy, instead suggesting the Botswana should switch to Proportional-Representation-System. Botswana is currently undergoing Constitutional Review process, with the commission, appointed in December, expected to deliver the report to President Mokgweetsi Masisi by September this year.

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