The Independent Electoral Commission (IEC) of Botswana has implied that it is at the mercy of the contentious Electoral Act which bestows President Lt. Gen. Dr. Ian Khama with enormous powers to set an election date, either in a General Election or by-election.
Khama has the sole prerogative to set a date for the Tlokweng constituency by-election, which was left without a Parliamentary representative following the demise of the area legislator, Same Bathobakae last December. In the by-election Umbrella for Democratic Change (UDC)’s Masego Segokgo will lock horns with Elijah Katse of the ruling Botswana Democratic Party.
In the 2014 general Elections, Same Bathobakae of UDC garnered 6442 votes against Olebile Gaborone of BDP’s 3867 and Jacob Zachariah representing the BCP only got 1195. UDC contests the by-election in cooperation with the BCP. According to IEC Public Relations Officer (PRO), Osupile Maroba, they can only await Khama to set the date as is espoused by the Electoral law of the country. Maroba highlighted that the Electoral Act is the main legal document that guides the operations of IEC.
“Our job is simple, we just execute the law as is, the president issues the writ of election and he can do that at the time he sees fit, the law states that, as IEC we just apply the law,” he insisted to this publication. He continued to point out that: “but the Electoral Act is silent when it comes to the time frame subsequent to the occurrence of a vacancy of the office of the Member of Parliament (MP)” and therefore only the president discerns the date at a convenient time.
Khama gets powers from the Section 34 of the Electoral Act which posits that (1) “for the purpose of a General Election to the National Assembly or of a by-election to fill a vacancy therein caused by death, resignation or otherwise, the President shall issue a writ under the public Seal of Botswana, addressed to the Returning Officer of each constituency for which a member is to be returned, fixing – a) the place and day at and on which, and the hours between which, the returning officer nominations of candidates for elections; b) the day for the taking of any poll which may become necessary.”
Just like the parliamentary procedure, the Act also states that it is the Minister of Local Government and Rural Development who shall issue an Election Instrument fixing the place, day, and hours between which the Returning Officer will receive nominations of candidates and the day for taking any poll in case of elections, of representatives of local government, which may become necessary. When reached for comment, the BDP Secretary General, Botsalo Ntuane, highlighted that the said section of the Act attracts controversy in his judgement.
“Personally I don’t think it’s advisable for the president to exercise sole prerogative of issuing election date because he is then unfairly accused of pulling rank and favouring his own party as is the case now with Tlokweng. But the law is as is until it is changed,” the outspoken BDP SG told WeekendPost.
Ntuane further mentioned that they too, as BDP do not know the set date yet. He continued: “but presumably that will be done when the President has consulted with the IEC. The best people to speak to are the OP and IEC. We are anxious like everyone else.” In his assessment, the UDC Publicity Secretary, Moeti Mohwasa, said the delay of the issuance of the writ of election in Tlokweng by Khama is simply tantamount to undermining the electorates of the area.
“The Tlokweng constituents currently still don’t have a legislator. How will their voice be heard if they don’t have a representative, more especially for this long? This is the 4th month the area dwellers go without an MP. We can only conclude that Khama does not see it fit and necessary for them to have a representative,” Mohwasa fumed.
He added that it is clear that Khama’s delay to issue a writ borders on his own party interest than Tlokweng constituents as he possibly wants to prepare and put his own house in order first before announcing the election date. “As we have been saying, this trickles down to prior calls made by opposition that the president must not set the dates of elections at all, particularly by-elections, precisely because he is also an interested party as the leader of BDP!” Mohwasa pointed out.
The UDC mouthpiece also maintained to this publication that Khama is clearly undermining the democracy as well as Batlokwa and their parliamentary representation. Meanwhile observers have contended that if the IEC is to fulfil its primary objective of ensuring free and fair elections, then it should be the IEC, and not the State President or a minister, who should issue writ of elections. They point out that the Executive would obviously have a vested interest in the outcome of such elections.
“The choice of the election date by the Executive gives the ruling party undue advantage, as this amount to using inside information.” A classic case in point is said to be in relation to 2013/14 Francistown West by election in which president issued a writ of elections a day before the by-elections, he invoked section 46 of the Electoral Act, and postponed the by-election from 23 November 2013 to 25 January 2014 on what many say was for political reasons.
Internal court fights ensued within the BDP following a primary election, consequently delaying the party to field a candidate before IEC closed for submission of nominations. The by-election was later won by Dr. Habaudi Hobona of BCP. The reasons advanced then was that it was in the public interest to do so following a controversial petition requesting for the postponement, as the relevant section states that if the President is satisfied that it is in the public interest, he may by proclamation adjourn the poll to some other day.
It also said that President Khama alone has the powers to withdraw the by-election writ and issue a new one at his will. The proclamations are not helped by the fact that IEC is currently seen as not entirely independent as it is placed under the auspices of the Office of the President, a ministry in a government – emanating from a ruling political party’s triumph.
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.
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.