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International NGOs shoot down Kgathi’s Penal Code amendments

An international Civil Society Organisation, SRHR Africa Trust formerly known as Southern African Aids Trust (SAT) and Botswana Youth Hub has denounced the Minister of Defence, Justice and Security Shaw Kgathi’s amendment to the penal code to raise sexual consent age from 16 to 18 years. The amendments were passed by parliament recently.

When tabling the Penal Code Amendment Bill, 2018, seeking to align it with the Children’s Act by raising the legal age of maturity from 16 to 18 years, Kgathi stressed that the objective of the Bill is to address incidences of defilement and abuse of children, abduction, indecent assault, and kidnapping.

SRHR Africa Trust & Botswana Youth Hub from the outset denounced the law although they acknowledged that the spirit of the amendments, in particular amendments regarding the increase of the age of sexual consent to 18 years, was done in good faith – to protect children against sexual predators, who in majority of cases are elderly men abusing young girls.

The international Civil Society this week wrote to Members of Parliament (MPs) saying the Penal Code amendments would turn children having sexual activity amongst themselves into criminals. “Whereas the proposed law seeks to protect adolescents from sexual abuse, the unintended effect of the law would be to turn children into criminals as some adolescents between the ages of 16 and 18 are already engaged in consensual sexual activities, some among themselves and some with elderly partners,” SRHR Africa Trust Country Programme Director Thatayaone Gabositwe highlighted in the Bill amendments comments on the Penal Code (Botswana).

The bone of contention for SRGR Africa Trust is that the net effect is that adolescents may in the end be prosecuted and convicted for engaging in what they have previously been lawfully doing. They continue: “to nub this from happening, we strongly recommend that the law be left as it currently stands and have a provision that makes it unlawful for persons above the age of 18 years to have sex with adolescents who are below 16 years.” The NGO insists that in the alternative, the legislators may raise the age of consent to 18 years as proposed but then have a provision that makes sexual activity between children who are both under 18 years lawful.

According to the said Civil Society organizations, to ensure that there is no huge age difference, there should be a gap of a two year age difference to guard against situations where a 17 year 11 months person has sex with a 12 year old, but if a 12 year old has sex with a 14 year old, then no one should be prosecuted.

“Further to the above, it is submitted that the two years age difference be maintained even after the other partner attains the age of majority at 18 years and ceases to be a child, provided though that their sexual partner is still a minor and the said minor gives their consent,” the organizations pointed out.

The SRHR Africa Trust Country Programme Director added that, if one partner is 19 years old and the other is 17 years, (or in the event the age of consent is kept at 16, the one partner is 16 and the other one is 14 years) the older one should not be charged for defilement as the two would for all intents and purposes be peers and may have lawfully had sex before the proposed law came into being.

“In that way, we submit that the relationship cannot be classed as intergenerational and thus less risky for the child. We submit that leaving the age of consent at 16 and having provisos dealing with sexual activities between children and punishing sex between children and adults, we will be acting consistent with the Public Health Act.”

According to the organizations, they say so because the Public Health Act made it possible for adolescents aged 16 and above to access health services on their own without parental consent, and this was in realization of the fact that adolescents do engage in sex and they should therefore be free to access sexual reproductive health services without fearing either their parents or the law.

“Should the age of consent be increased to 18, this may therefore force children to go underground as they may fear the stigma arising from the law penalizing their sexual conduct. We will be inadvertently reversing the gains that we made as a nation in seeking to make universal access to reproductive health rights a reality, which has already proven to be problematic as it has been found that in reality, only 16 out of 335 public health facilities provide youth friendly services according to the United Nations Population Fund 6th Country Programme 2017-2021 Report,” the representative wrote in the MP’s note.  

The NGOs state that the UNFPA found that in 2016 in Botswana, there were 6 drop outs out of 16 536 in pre-primary, 271 out of 315 261 in primary school, 1 194 out of 116 068 in junior secondary and 477 out of 57 203 in senior secondary due to teenage pregnancy. From the Bill Memorandum, Gabositwe said they acknowledge that government wishes to raise the age of sexual consent to 18 so that it is in harmony with the Children’s Act.

“But in terms of the Employment Act, section 105 (2), a 14 year old child may be employed to work under certain circumstances. 12.2. In terms of the Public Health Act, section 104 (1) (a) a 16 year old can test for HIV without parental assistance. 12.3. In terms of Police Rifle Association Act, section 7 (1), a 16 year old can join rifle associations and learn how to use firearms. 12.4. A 16 year old is eligible to obtain a license to operate as a barber, a street vendor and a hawker. 12.5. Service of court or legal documents can be made on a 16 year old. 12.6. A 16 year old can obtain a free balloon pilot license. 12.7. A 10 year old in terms of the Adoption of Children Act has the capacity to consent to his/ her adoption.”

The global trend, they posit, is to have the age of consent to sex at 16, and those Botswana children are no different from other children in various parts of the world like in the United States. “We trust that our representations will be considered and adopted for the benefit of our children for we would not like to see our children in prisons. Let the law deal with the unfit elders who sexually abuse our children using their power and purse,” they reiterated.

For more than 2 decades, SRHR Africa Trust has worked with and alongside communities, civil society organizations and networks to mobilize and strengthen their capacity to respond to the HIV epidemic and improve their sexual and reproductive health and rights (SRHR) in 6 East and Southern African countries including Botswana.

SAT has a strategic programmatic focus on women, girls, youth and adolescents coded "The Girl Plan" that seeks to address issues such as Child Marriage, Teenage pregnancy, Gender Based Violence, Keeping Girls in Safe Schools, increasing youth access to SRHR services and menstrual health.

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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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