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Court of Appeal clears controversial PI’d Jerry Chitube

Controversial former Botswana Democratic Party (BDP) National Youth Executive Committee Chairperson Contender Jerry Chitube has been cleared of criminal activities in Botswana.  

Chitube is a Zambian national who was declared a prohibited immigrant after he raised eye brows as a surprise runner for the BDP Youth Wing congress in Masunga raising some shock waves in the party. At the time Chitube was little known in the party but splashed a lot of cash and commanded massive respect until the February 2015 when security agents pounced on him as he readied himself for the BDP youth league chairmanship ballot vote.

Information turned up suggests that the Zambian master spy, who was also linked to the national secret agency Directorate of Intelligence and Security Services (DISS), had infiltrated the BDP and had striking ambition that rocket much higher than the position of chairperson of the BDP Youth League. He claimed that the BDP was grooming him to be president. Local media was awash with news that thereafter the contentious Chitube was deported after alleged corrupt deals with some senior ruling BDP members.

Before deportation, a criminal trial was registered on the 17th May 2014 in which two of the witnesses in their statements “implicated Chitube as a key player in committing an offence of obtaining (huge sums of money) by false pretences” and as a person to whom they handed the sums of money to.

In the case that just ended in the highest court in the land last week, the appellants; Moment Chidube, Biki Ishmael Kadimo and Thabiso Mokgadi and several others are facing a criminal trial before the Magistrate’s court on several offences related to and arising from a criminal enterprise in which a company named Lodisa (Pty) Ltd was allegedly defrauded of substantial sums of money and one of its officers robbed.

At the heart of the appeal was the issue of whether the State has violated the appellants right to a fair trial enshrined under section 10(2) (e) of the constitution by excluding Chitube on the matter as he was deported. When arguing the matter, Chitube’s attorney Advocate Mpho Morapedi pointed out that although Chitube was implicated as a key offender he was neither cited as an accused nor listed as one of the prosecution witnesses.

Counsel submitted that as Chitube was a key role player but was neither charged nor listed as a witness the defence intended to call him as their witnesses. He informed the court that it was common cause that Chitube was no longer in the jurisdiction he having been declared a prohibited immigrant and deported from the country. He sought an undertaking from the prosecution for Chitube to be allowed back into the country to give evidence on behalf of the defence should the defence need him.  

When making a ground breaking judgement on the marathon case on Friday, Court of Appeal panel of 5 Judges; Justice Ian Kirby, Justice Isaac Lesetedi, Justice Singh Walia, Justice Jacobus Brand and Justice Craig Howie ruled that: “in such cases there is no prejudice which can be shown let alone resulting in an unfair trial.”

The Judges continued: “the appellants have failed on this test, the referral stood to fail and the High Court having so found, it is unnecessary to consider whether the High Court was in error in finding that the requirements for the grant of a permanent stay of prosecution had not been me by the appellants.”

They highlighted that it has not been shown that Chitube having been shown to be a necessary and material witness required by the president for restricted re-entry in this regard and if so that such has been refused, or that such an application if made is bound to fail. “For it will be an abuse of right to put the State to expense in bringing from abroad a prohibited immigrant who may either be unwilling to give evidence e or whose evidence is not material or favorable to the party seeking to call it.”


It will even be inimical to the rule of law and the public interest to permanently stay a criminal prosecution on such serious charges merely because of the absence of a witness whose evidence may not be material to the trial let alone favourable to an accused who merely alleges that he will be prejudiced by the absence of the witness, the Judges insisted.

Essentially three grounds were advanced on the appeal, which cleared Chitube that “High Court fundamentally misdirected itself in law in holding that the appellants failed to demonstrate that their constitutional right to a fair trial will be prejudiced by the unavailability of Jerry Chitube.”

In addition the CoA ruled that the High Court erred in holding that the materiality of Jerry Chitube has not been sufficiently traversed to enable the court to fathom and determine the materiality and favourability of such testimony to the appellants’ case. Advocate Mpho Garebatho and Lore Morapedi stood in for the appellants while the State was represented by Gonayaone Ketlhapetswe. Meanwhile Chitume still remains a prohibited immigrant.

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13 AUGUST 2022 Publication

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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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