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4 Court of Appeal Judges “separately” rule against Khama

Omphemetse Motumise who was the first in list recommended by the Judicial Service Commission (JSC) is awaiting a letter from the JSC or appointing authority inviting him to commence work as High Court Judge in Botswana.


This comes following a matter in which Law Society of Botswana (LSB) was challenging the refusal by President Lt. Gen. Seretse Khama Ian Khama to appoint Motumise as a Judge – as recommended by the empowered JSC. It is understood that during the JSC shortlisted candidates interviewed by the latter, Motumise had the highest score followed by Justice Tapiwa Marumo of the Industrial Court, Sarkodie Mensah who has previously acted as High Court Judge was the third, and the now Acting Judge Justice Zein Kebonang who is a twin brother to one of Khama’s cabinet Ministers Sadique – came last.


However after rejecting Motumise, Khama moved swiftly to appoint Kebonang as Acting High Court Judge – the position he still holds to date. The position fell vacant following the retirement and subsequently departure of Judge David Newman who has since been awarded with the ambassadorial post.


In appointing Motumise, the JSC were said to be acting in terms of section 96.2 of the Botswana constitution which states that “The other Judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.”
The JSC is composed of the Chief Justice Maruping Dibotelo who is also Chairman; the President of the Court of Appeal Justice Ian Stuart Kirby; the Attorney-General Athaliah Molokomme (who has since retired); the Chairman of the Public Service Commission; and a member of the Law Society nominated by the Law Society; as well as a person of integrity and experience not being a legal practitioner appointed by President Khama.


According to the Court of Appeal Judges; Justices Isaac Lesetedi, Monametsi Gaongalelwe, Lord Hamilton, Jacobus Brand, Alistair Abernethy in a judgement read by Lesetedi this week in Gaborone; he said as a conclusion in the main judgement that in the absence of an explanation by the President (in rejecting Motumise) therefore his decision stands to be reviewed and set aside.


“For that reason therefore this ground of appeal is upheld and the President’s refusal to act on the recommendation of the JSC for the appointment of 2nd appellant (Motumise) as a Judge of the High Court is set aside,” all the Judges stated in the conclusion of the final judgement, although they had 4 separate judgement for the first time in the history of Botswana.


While they were all in agreement, Justice Gaongalelwe differed with them only on the proper interpretation of phrase in section 96.2 that “shall be appointed by the President acting in accordance with the advice of the JSC.” He said it depends in the regime of a particular country and the context in light of other provisions of the constitution. “I am in agreement with the conclusion of the court a quo that in this matter the phrase simply means that the president is not to appoint a person who has not been recommended by the JSC,” Gaongalelwe stated.


JSC, Lesetedi contended that for the transparency purposes, it can decide on whether they want to make interviews for candidates vying for High Court Judgeship in the open and that the court has no right in the absence of a law empowering it to do so. He however highlighted that this may continue to be a debate going forward. Meanwhile the appellants having succeeded partially in the reliefs they sought, each party was ordered to bear its own cost in the appeal.


LSB and Motumise were cited as 1st and 2nd appellants in the matter while President Khama, JSC and AG were cited in papers as 1st, 2nd and 3rd respectively. Appellants were represented by Advocate Alec Freund, Advocate Hephzibah Rajah, Osego Garebamono, Tshiamo Rantao and Tefo Gaongalelwe. On the other side respondents were represented by Advocate Anwar Albertus, Advocate Grant Quixley and Yarona Sharp.


On his part, Rantao of Rantao Kewagamang Attorneys’ who was representing LSB and Motumise (appellants) who are triumphant in their main contention, could not hide his excitement outside court shortly after the judgement. He stated with poise that the CoA decision in his view is “a resounding victory – for the rule of law.” “Its resounding victory for us because the CoA on the main issue which we went to court in the first instances all is in our favour particularly on the interpretation of section 96.2 of the Botswana constitution, all but not entirely” he said.


Rantao however cautioned that: but the results are that if the president is concerned about a person who is recommended by the JSC, for example if he is a national security threat, he must raise his concerns with the JSC through the Attorney General (AG). “The AG as you would know, represent the Executive in particular the president in this case and the JSC. So what it means is that the president cannot now, without giving any reason refuse to accept the recommendation of the JSC.”


He added that in the history of the Court of Appeal, which is the highest court in the land; we had 4 judges writing different opinions arising in many respects in the same results. “But, not just agreeing, not just concurring, 5 out of 5, but differing on how to arrive at the judgement that’s very good that’s what we expect from our CoA and I think that, in that regard, they acquitted themselves very well.” According to the attorney, “so, Mr Motumise is now effectively waiting for a letter from the JSC or any other relevant authority advising him when to take a seat as the Judge of the High Court.”

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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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