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BPOPF takes legal in CMB’s P500 million breach

By close of business on Friday, Capital Management Botswana (CMB) was expected to have complied with an order compelling it to return Fund money in its possession back to the Botswana Public Officers’ Pension Fund (BPOPF) accounts after it was found to be in breach of the Partnership Agreement as a general partner.

BPOPF lawyers who were working on administering their order against Capital Management Botswana (CMB) following termination of a contract on 30 October, 2017, had pushed from the CMB end and now BPOPF has no choice but to take legal action, Weekend Post has learnt.

Sources close to the case indicated that CMB has not complied with the order directing them to transfer all the funds back to the BPOPF’s account five weeks later. In the letter of the minutes leading to the termination of the contract which survived only two years, BPOPF labeled CMB’s persistent breach of the obligation in managing and handling of the funds as negligent and an act of misconduct.

“We note that a number of these breaches also amount to ‘misconduct’ on the part of the Fund Manager. The sheer extent of the incidences of breach, the persistence of the same breach, the failure to inform BPOPF of any breaches and failure to take the steps to remedy  breaches not only constitutes a failure to meet the standard of a prudent individual but also amounts to grossly negligent conduct.”

According to the minutes, CMB just allocated money to companies anytime of the day and not following the stipulated procedures, like proposed investments and securities to be acquired. BPOPF entered into agreement (Advisory and Management Services Agreement 9AMSA)) with CMB as the fund manager of P500 million on 3rd November, 2014. BPOPF at the time committed P500 million. And at the time the contract was terminated, over P477M was drawn down, leaving about P22M of undrawn capital commitments by BPOPF. The Fund was established as a private equity fund

WHO BENEFITED FROM CMB MISCONDUCT?

Principal in the conflict between BPOPF and CMB is breach of the Investment Policy. One of the companies that benefited from the breach is Wilderness Holdings, the tourism company is also in the bad books as far as the BPOPF records are concerned. “The investment in Wilderness Holdings is not an investment in company implementing private equity projects. It is an investment in public equities, which constitutes a breach of the investment policy,” states the minutes. The Investment Policy in the context of the BPOPF refers to investment in portfolio companies implementing private equity projects. “No argument has been made that Wilderness Holdings implements private equity projects and the interposing of a special purpose vehicle does not resolve the issue.”  

And as if that was not enough, the amount invested in Wilderness Holdings constituted 30% of Total commitment. According to a legal opinion rendered to BPOPF this is in breach of clause 12 of the Investment Policy which limits any investment in a single portfolio company to 25% of the Total Commitment. Therefore, Wilderness was awarded an amount beyond the limit. BPOPF stressed that this breach is not capable of being remedied. It was also identified that a company by the name Kawena also breached the prudential limit for the investment in any portfolio company. Furthermore it emerged that the Kawena breach is capable of being remedied.

A PLETHORA OF BREACHES

There are several other breaches to the agreement between BPOPF and CMB, with attorneys of the former pointing out that Drawdown Notices did not comply with the provisions of the Partnership Agreement in that they do not contain information required in relation to the description of the business, the amounts being allocated to each investment, and that certain information is missing.

“We understand that the Fund holds an investment in Makuba Airlines for which there is no corresponding Drawdown Notice. It appears the funds that were drawn down for some other purpose were utilized to make this investment. This is a serious and material breach of the Partnership Agreement which cannot be remedied,” the attorneys observed.

The legal assessment by BPOPF also noticed breach of Key Man Provisions and breach of Reporting Obligations. “It would appear that the General Partner has breached its obligation to supply BPOPF with quarterly reports throughout the life of the Fund.” The assessment also identified signs of conflict of interest in some of the dealing such as the one that involves a company called AGILE Investments and one Mr Rowley.

It also established that there were excessive Fund expenses, for example on 3rd March 2016, the General Partner drew down an amount of P12 500, 000 representing 2.5% of the Total Commitment. “Fund expenses must be actually incurred by the General Partner before they are reimbursed. No evidence was provided with the drawdown that such fees were indeed incurred.” The legal team is clear that the available remedy is for the removal of the General Partner and BPOPF has been advised to seek damages as compensation for financial loss suffered as a result of the breach.

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WIN drills media executives on Sexual Harassment

27th November 2020
Sexual Harassment

As the media industry comes full circle with sexual harassment policies in the workplace, media houses have been urged to ensure that this process cuts a wide swath so as to broaden the buy in.

Media organizations have begun to reassess and revise their sexual harassment policies as WIN continues to heighten a campaign against sexual harassment in the workplace. All the while a handful of organizations are either at drafting or implementation level of the policy.

To help media organizations crack down on sexual harassment, WAN-IFRA Women In News (WIN) held its 15th Round Table Meeting (Virtual) on 5th November, 2020 aimed at furthering sensitisation on the subject.

Media executives from Sub-Saharan Africa who attended the Roundtable meeting were motivated to climb on the bandwagon to address sexual harassment in the workplace.

A renowned expert in human resource concepts, Carin Anderson, shared on managing and preventing sexual harassment in news organisations. Anderson explored on essential tools that could assist organisations to navigate sexual harassment complaints effectively.

Anderson cautioned media executives against condoning a culture of Sexual Harassment. Linking sexual harassment to the current situation where COVID-19 has put many media houses in the red, Anderson cautioned it could negatively affect productivity.

She said staff could be forced to exit organisations, a development that will ultimately affect the financial performance of the business.

By hook or crook, organisations need to draft and implement comprehensive sexual harassment policies that are comprehensible to staff. According to Anderson, media executives must ensure of policies that have a prevention and cure approach while at the same time avoiding reactionary approaches.

She is of the view that a thorough sexual harassment policy could protect brands, would-be victims and the organisation untainted culture.

While the debate on sexual harassment has been dominated by fits and starts, of late progress has been by leaps and bounds.  Anderson opined that conducting anonymous surveys continues to determine the culture of an organization hence helps create conducive working conditions for employees.

She observed that such surveys are very important because everyone is given a chance to air their views or concerns. In doing so, employees will feel comfortable and free to share their experiences.

Anderson further said anonymous surveys can also help to depict any unwanted behaviours in an organisation. Such surveys promote the culture of calling a spade a spade. She advised all media partners present at the meeting to create a safe and clean environment for their employees than to wait for the symptoms of sexual harassment to manifest.

“Organisations need to implement the policy and create more awareness through training. In order to create more awareness organisations need to come up with code of conduct and set procedures that promote zero tolerance for sexual harassment,” she said.

WIN executive Director, Melane Walker denoted that sexual harassment happens everywhere; and it is very important to have an internal policy that deals with it. Having a written internal policy has helped WIN to significantly navigate sexual harassment quandary, she said.

All participants were encouraged to have a Sexual Harassment policy and to share it with everyone in the organisation.

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Plight of GBV amid Covid-19

26th November 2020
16-days-of-activism

The United Nation’s UNiTE campaign has marked the beginning of 16 days of activism against Gender-based Violence which will end in December 10 2020, under the global theme, “Orange the world: Fund, Respond, Prevent, Collect!”

The UN Secretary-General’s UNiTE by 2030 to End Violence against Women campaign (UNiTE campaign), managed by UN Women — is a multi-year effort aimed at preventing and eliminating violence against women and girls around the world.

The UN Women’s generation equality campaign emphasises the call for global action to bridge funding gaps, ensure essential services for survivors of violence during the COVID-19 crisis, focus on prevention, and collection of data that can improve life-saving services for women and girls.

Furthermore, the UN Secretary General’s report maintains that this year is like no other. Even before Covid-19 hit, violence against women and girls had reached pandemic proportions.

Globally, according to United Nations, 243 million women and girls were abused by an intimate partner in the past year.

Meanwhile, less than 40 percent of women who experience violence report it or seek help.

Evidently they suggest that as countries implemented lockdown measures to stop the spread of the coronavirus, violence against women, especially domestic violence, intensified- in some countries, calls to helplines have increased five-fold.

“In others, formal reports of domestic violence have decreased as survivors find it harder to seek help and access support through the regular channels. School closures and economic strains left women and girls poorer, out of school and out of jobs, and more vulnerable to exploitation, abused, forced marriage, and harassment,” said the UN.

According to the UN, in April 2020 as the pandemic spread across the world, the UN Secretary-General called for “peace at home”, and 146 member states responded with their strong statement of commitment.

“In recent months 135 countries have strengthened actions and resources to address violence against women as part of the response to Covid-19. Yet, much more is needed,” said the report.

Moreover, they submit that as today, although the voices of activists and survivors have reached a crescendo that cannot be silenced or ignored, ending violence against women will require more investment, leadership and action.

“It cannot be sidelined; it must be part of every country’s national response, especially during the unfolding COVID-19 crisis,” contended the UN report.

For the 16 Days of Activism, UN Women handed over the mic to survivors, activists and UN partners on the ground, to tell the story of what happened after COVID-19 hit.

According to Dubravka Šimonovic, special rapporteur on violence against women, there is urgent need to end pandemic of femicide and violence against women.

Ahead of the International Day for the Elimination of Violence against Women, she emphasizes that as the world grapples with the devastating impact of the COVID-19 pandemic and its negative impact on women, a pandemic of femicide and gender-based violence against women is taking the lives of women and girls everywhere.

Therefore, she is calling on all States and relevant stakeholders worldwide to take urgent steps to prevent the pandemic of femicide or gender related killings of women, and gender-based violence against women, through the establishment of national multidisciplinary prevention bodies or femicide watches/observatories on violence against women.

These bodies should be mandated to 1) collect comparable and disaggregated data on femicide or gender-related killings of women; 2) conduct an analysis of femicide cases to determine shortcomings, and recommend measures for the prevention of such cases, and 3) ensure that femicide victims are not forgotten by holding days of remembrance.

“Data this mandate has collected since 2015 through my Femicide Watch initiative corroborates the data available from the UN Office on Drugs and Crime, and indicates that among the victims of all intentional killings involving intimate partners, more than 80% of victims are women.  Many of these femicides are preventable. Since 2015, a growing number of States have either established femicide watches or observatories, and in an increasing number of countries, it is the independent human rights institutions, civil society organizations, women’s groups and/or academic institutions that have established femicide watches or observatories,” she argued.

GBV in Botswana

UNFDP (United Nations Population Fund) Botswana cites that, locally over 67 percent of women have experienced abuse, which is over double the global average.

“Gender-based violence undermines the health, dignity, security and autonomy of its victims, yet it remains shrouded in a culture of silence and normalization. Victims of violence, the majority of which are women and girls, can suffer sexual and reproductive health consequences, including forced and unwanted pregnancies, sexually transmitted infections including HIV, and even death,” indicated UNFDP

In his 2020 State of the Nation Address (SONA) he delivered on Monday 9th November at the Gaborone International Convention Centre (GICC), President Mokgweetsi Masisi said government is concerned about the snowballing of GBV incidences, saying, they have prioritized drafting of a Sexual Offenders Bill to be tabled during the sitting of the 12th Parliament.

“The Bill will establish a Sex Offenders’ Registry to record and publicise names and particulars of all persons convicted of sexual offences. To date twelve districts have set up the District Gender Committees in Chobe, Kweneng, Kgatleng, Kgalagadi, Maun, Serowe, Selibe-Phikwe, North East, Bobirwa Sub District, Mabutsane Sub District, Goodhope Sub District as well as Mahalapye Sub District. These committees will promote gender equality and women’s empowerment, and also address gender based violence,” Masisi said.

The President highlighted that the Botswana Police Service, which has been dealing a lot with GBV cases has taken swift action and introduced a Toll-Free number for reports on gender based violence. He further indicated that the Police will establish a Gender and Child Protection Unit

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Transgender persons in Botswana live a miserable life

23rd November 2020
Transgender persons

An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.

In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.

In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.

Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.

More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.

At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.

The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).

Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).

International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.

In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”

The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”

According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.

In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.

The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.

LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.

“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.

Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.

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