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Political participation spat reaches CoA

The Court of Appeal (CoA) has reserved a date in which it will announce whether or not Section 37 (c) of the Public Service Act which prohibits industrial class workers from participating in politics is unconstitutional.

Section 37 (c) of the PSA states that, “It is a misconduct for an employee to engage in any activity outside his or her official duties which is likely to involve him or her in political controversy or to lead to his or her taking improper advantage  of his or her position in the public service.” A private attorney, Mboki Chilisa of Mboki Chilisa Attorneys is challenging the constitutionality of the said Act stating that it violates Section 12 (2) (c) of the constitution of Botswana.

Section 12 (2) (c)of the Constitution reads , “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-c)that imposes restrictions upon public officers, employees of local government  bodies, or teachers, and accept so far that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

Chilisa is calling on the Court of Appeal (CoA) to amend the said law which came into effect in 2010. The industrial workers are now bound by the provisions of the PSA and its terms and conditions of the service. The lawyer decries that the said PSA does not even define what a ‘political controversy’ is. “In short, the  constitutional argument is that it is not reasonably justifiable in a democratic society to limit the right to freedom of expression by imposing on public officers a blanket prohibition on the discussion of public affairs, where such may bring about controversy,” argues the lawyer.

He contends there is no reason why Botswana as a signatory to the International Covenant on Civil and Political Rights (ICCPR) and a member of the international community should not apply the Oakes test, which has attained the status of an international human rights norm, in assessing whether a derogation of the right to freedom of expression is reasonably justifiable in a democratic society.

Chilisa told the court that he does not doubt the importance of the said section as it is intended to serve the legitimate purpose of preserving the political neutrality of the public service, in order to prevent it from becoming politicized. And that he readily accepts and concedes that impartiality, neutrality, fairness and integrity are indispensable components of an efficient public service in any democracy.

“What I have a quarrel with are the means sought to achieve the goal of a political neutral, impartial and efficient public service. The means used are overbroad. They are not proportional and impair the right to freedom expression more than is necessary to attain the objective,” argues the lawyer.

He told the court that in the case of industrial workers, it can never be the case that off duty exercise of free speech that does not indicate support or opposition for particular political party, adversely affects the interests of the employer or impairs the ability of the employee to continue serving the government.

He stressed that these employees carry out manual work and are not responsible for formulating government policy or articulating it.  He said for the government to succeed in dismissing an employee, they ought to demonstrate that the said individual engaged in any activity outside his or her official duties which is likely to involve him or her in political controversy or that he engaged in any activity outside his official duties which is likely to lead his taking improper advantage of his position in the public service.

The lawyer was challenging the constitutionality of the said section while dealing with the case of a former public servant one Moagi Kobedi who was dismissed from work after registering to be elected to a political office. Kobedi was working as a night watchman at Sedibelo Community Junior Secondary School in Mochudi, and had registered as a candidate for Boseja North ward. He participated in the 2014 General Elections for a council seat. It was then that he was charged with contravening the provisions of Section 37 (c) of the PSA No. 30 of 2008. And was dismissed following a disciplinary hearing.

Kobedi had later in 2015 instituted an application seeking to be reinstated to his position or alternatively to be paid damages for unlawful dismissal and was granted the verdict in 2016. It was then that the government appealed the judgment. The government through Deputy Attorney Matlhogonolo Phuthego, told the CoA that Section 37 (c) is not unconstitutional. He said the declaration of the said section was for the common good of the whole country.

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13 AUGUST 2022 Publication

12th August 2022

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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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