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NBFIRA blacklists Tibone as Stock markets battle rages on

The Non-Bank Financial Institution Regulatory Authority (NBFIRA) has taken a tough stance against Stock Brokers Botswana (SBB) and its Managing Director, Titose Tibone following a decision by the latter to request for suspension from the Stock Exchange. This has been a culmination of events which started with the dismissal of an accountant at SBB who was later fined P10 000 by the NBFIRA for practicing as a Controller without permission.

But the grass is still suffering as Titose Tibone and NBFIRA herald a possible showdown as the former refuses to accept possible penalties and a removal from practice by the latter. Titose Tibone assumed the position of Managing Director of Stock Brokers Botswana in June 2012 upon the acquisition of this company by the current shareholders during that period.

In a letter addressed to the Chairman of the Board of Stock Brokers Botswana by NBFIRA CEO, Mr Oaitse Ramasedi, a directive in terms of Section 53(3) and a Civil Penalty in terms of Section 93 of the NBFIRA Act is directed at the Company and Titose Tibone. “ Please be informed that the Capital Markets Department of the NBFIRA has noted several instances of non-compliance by Stock Brokers Botswana Ltd, and to this end, have reffered the same to the Compliance Department for enforcement action. In particular, the Compliance Department has been instructed that through its Managing Director, Mr Titose Tibone, the SBB has:

Appointed a controller to the organization without prior approval of the Authority as required in terms of Section 65 of the NBFIRA Act; Failed, on several occasions and despite numerous requests, to provide the Authority with information regarding the job descriptions of Managing Director and Chief Executive Officer functions, how the two relate to each other, and who is the more superior between the two; And on August 30, 2016 sent an email to the Authority and the Botswana Stock Exchange, indicating that the SBB wishes to wind down its operations due to inability to operate as a going concern, although winding down was never the intention of SBB, and the contents of the email did not present a true reflection of the SBB position. This was thus misleading and false statement made to the Authority, which statement had the potential to disrupt and discredit capital markets of Botswana.”

Ramasedi argues on behalf of NBFIRA that the issues outlined, all precipitated by Mr Titose Tibone as Managing Director, indicate that Mr Titose Tibone conducts himself in a careless manner that breaches his fiduciary duties towards SBB and its clients. “To this end, the Authority has formed the view that he is no longer fit and proper to hold office as a controller, much less a managing director or director, at SBB.”

The NBFIRA Chief indicated that the Authority issues Directive in terms of Section 53(3) that effective from September 6, 2016, Mr Titose Tibone be removed from holding office as a controller, a Director and the Managing Director of SBB. “The Authority further directs that a formal letter be submitted by SBB indicating that it takes note of this directive and has actioned it. Such letter should be submitted to the Authority no later than September 9, 2016.

Ramasedi further pointed out that NBFIRA will impose a civil penalty on SBB in line with Section 93 (a) of the NBFIRA Act for knowingly making a false statement to the Authority. However he has given SBB 21 days to request a hearing, if it wishes for one, to show cause why the proposed penalty should not be imposed. In the meantime SBB has complied with the directive to remove Titose Tibone as Managing Director and Director.

TITOSE TIBONE ON HIS OWN DEFENCE

Although SBB has agreed to comply with the directive, from its rebuttal of the NBFIRA letter, it is clear that the company is not happy with the decision. “ We now refer to your paragraph 4 of the aforesaid letter in which you have issued a directive in terms of Section 53 (3)(b) of the NBFIRA Act to remove our Managing Director, Mr Titose Tibone from holding office as a Controller, as Director and the Managing Director of our company. On a without prejudice basis, we hereby confirm that we will comply with this directive and that we have requested Mr Titose Tibone not to be involved in the management and business affairs of the company,” writes SBB chairman

However SBB says it notes the action of removing Mr Titose Tibone in their view is highly prejudicial to the company in that Mr Titose Tibone has played a major role in the success of this company. They further point out that Mr Titose Tibone is a fit and proper person and without him, they strongly believe that the continued profitability and success of the company will be compromised.

On noting reasons for declaring him, not to be a fit and proper person, SBB tabulated a rebuttal, which we or Mr Titose Tibone, can substantiate and prove, should the opportunity be given to us:-

In relation to the allegations that they appointed a controller before vetting, SBB says Mr Titose Tibone, or the company, did not and has never appointed Ms Rebaone as a controller of the company. “It is for this reason that we had not applied for the prior approval of the Authority. Ms Rebaone was an accounting clerk/officer and not a controller and it was as a result her own self-doing that she gave the impression to the Authority that she was a controller and not by any instructions from Mr Titose Tibone or the company. It is for this reason she was penalized and paid P10 000.00 and was accordingly dismissed. If at all, it was the intention to appoint her as a controller, we would have thereafter applied for her vetting so as to re-instate her. We believe that using this again to penalize Mr Titose Tibone is unfair and not in the spirit of the NBFIRA Act.” 

SBB is of the view that using this as a ground to hold Mr Titose Tibone is unfair and not in the spirit of the NBFIRA Act.

On the charge of disruption capital markets and presenting a false and misleading position of the company (SBB): “In relation to the allegations stated at clause 2.3 of your letter, we confirm that this matter was dealt with and the reasons were given by Mr Titose Tibone for sending such an email. This was done at a meeting held on the 30th day of August 2016, at. At this meeting Mr Titose Tibone explained that as a result of the dismissal of Ms. Rebaone, the accountant and not having a financial manager in place (as the approval process was being pursued), he felt that it would be in the interest of the clients of the company to stop trading until the affairs of the company were sorted out. It is our opinion that this was a responsible move because without a finance manager and without an accountant, the company would not be able to manage the accounts, which would in turn prejudice the clients. It is for this reason that at the meeting, the parties confirmed that instead of using the words “winding down”, which would give an impression that the company is closing down instead of giving the true intention of Mr Titose Tibone, which was to suspend trading until such time that the affairs of the company were sorted out, the company should state that it is suspending trading, thus use the words “suspend trading”.”

SBB Board indicates that they believe that the email was sent out with the client interests and protections at the core of Mr Titose Tibone’s intentions and that same was not made with any bad intentions as correctly stated in Ramasedi’s letter.

“Further to this, it is stated that, you will note that this statement was not published, that is, it had never entered the public domain, it was an email sent to the Authority and the BSE. Therefore we disagree that it had any potential to disrupt and discredit the capital markets of Botswana. It was sent to the Authority and to the BSE to advise them that there is a problem at the company and to let them know that as a result the company wanted to stop trading and await further instructions from the Authority and the BSE.”  

Titose Tibone and his Board are of the view that when joined, the company was not performing well.  In fact it had showed losses in the amount of P8,000,000.00. They state that shortly thereafter the fortunes of the company had reversed. “We are therefore confident that based on market share figures and profitability, the CEO of the BSE, Thapelo Tsheole can attest not only to the successful turnaround strategy implemented by Mr Tibone but also to the extent to which SBB has contributed to the fiscus of the BSE under the tenure of Mr Tibone. The shareholders from a profitability and management side are pleased with Mr Titose Tibone performance.” 

SBB says at this stage there is no threat of the company being insolvent, in fact, “we worry that with the removal of Mr Titose Tibone, the company might end up in such a position. Having said the above, which we felt would be necessary to bring to the attention of the Authority; we do note that the issue of Mr Titose Tibone’s removal will be dealt with separately.” 

SBB has sought clarification on imposition of a civil penalty because they are of the view that it can only be imposed on a person who has committed an act within the purview of that section and that the company cannot be penalized under that section. SBB says the civil penalty on the company will be unlawful.

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Masisi, DIS come under scrutiny at UN Rights Committee 

25th October 2021
masisi & magosi

President Dr Mokgweetsi Masisi and the Directorate of Intelligence (DIS) came under the lens of the United Nations Human Rights Committee during the just ended dialogue between committee members and the Botswana delegation. 

Scores of issues, among them the country’s reports on topics including whether Masisi abused the State of Emergency Act during the COVID-19 pandemic and alleged surveillance and harassment of members of the public by DIS, were addressed at the session.

A Committee expert asked about legislation in the Penal Code allowing the Government to investigate people who expressed opinions against public figures, particularly the President. How many cases were there of journalists who had been investigated, prosecuted and tried?
Concerning the COVID-19 Emergency Powers Act, there was a provision for a fine or a five-year jail term for journalists using “source(s) other than the Director of Health Services or the World Health Organization” when reporting on COVID-19. The Committee Expert asked for the number of cases and other measures taken under this Act.

Another committee expert wanted to know that the scale and scope of electronic surveillance, which had sharply increased in recent years, was concerning. Furthermore, the Committee was troubled at the lack of a sufficient independent oversight mechanism over the Directorate of Intelligence and Security Services that reportedly had contributed to a growing climate of fear and chilling effect on journalists, human rights defenders and opposition politicians. In this respect, a Committee Expert asked about the measures taken by Botswana during the COVID-19 pandemic to ensure that the right to privacy was protected (collection and management of personal data).

The Expert also enquired about a database website, which was not functioning but was supposed to contain documents of Botswana’s international human rights commitments.
In terms of the freedom of assembly, while the Constitution of the State party guaranteed it, the Committee had received information that, in practice, the Public Order Act required citizens to apply to the nearest police for a permit to hold an assembly, and police had sometimes denied requests for unclear reasons.

The Committee Expert asked if the Public Order Act of the State party had been applied in conformity with those tests. Would the State party indicate the measures it had taken and/or intended to take to make the application of the law in question strictly compatible with the requirements under article 21? Furthermore, the Committee had also received allegations that police officers sometimes used force to compel gathering people to disperse. In this regard, the Expert asked for information on legal provisions and practical guidelines under which police officers may resort to force and any training programme if any, for police and other law enforcement officers to respect and ensure the right of peaceful assembly.

A Committee Expert asked about cases of holding people for longer periods under pre-trial detention than the maximum period provided for in legislation, 36 months, instead of six. Were there any plans to shorten the duration of pre-trial detention in legislation? The Committee noted that there was no provision for local community broadcasting. What measures were the State party taking to ensure that the local communities could also communicate in their language in the media?

What measures had been undertaken by Botswana to increase sustainable development in the country regarding climate change in particular. What efforts had been undertaken to ensure that customary courts worked up to speed? A Committee Expert asked about children in rural areas who travelled a long way to their schools. The delegation was asked about the independence of the Ombudsman Office, including provisions for appointing the Ombudsman. What budget was envisaged for this Office?

The Expert acknowledged the established procedures and institutions for anti-human trafficking but expressed concerns about the lack of reported cases. The Expert asked about the accountability of the public prosecution, as well as the intelligence services. Replying, the Botswana delegation, led by Presidential Minister Kabo Morwaeng, said there was an ongoing consultation for revising provisions that would ensure better protection for journalists and media freedom in Botswana.

Still, the delegation said, freedom of expression was assured in the State party without any restrictions, including in Parliament. There was an education programme providing the opportunity for children in primary school to be taught in their mother tongue. It also explained that the Ombudsman would be dealing with issues of human rights promotion and protection.

“National policies and procedures were envisaged to control the distribution of natural resources. Botswana was also taking measures to increase the access of minority groups to education. Regarding pre-trial detention, the delegation explained that the criminal procedure assured justice was preserved in the country,” said the delegation.

On the issue of torturer and alleged use of unreasonable force on suspects, the Botswana delegation explained that police officers were trained to use minimal force, ensuring that human rights were preserved, including in the cases of assemblies. On the use of surveillance, no legal provisions were breached, and such measures were used in accordance with national legislation. Legal aid was very costly, and it was not possible to keep the record in detail as asked by the Committee.

Morwaeng told the Committee that the Government maintained a robust consultative approach to policy development and legislative process. He said this was a system of governance that ensured that the voices of ordinary citizens were respected and taken into account in the social, economic and political process that affected them the most, giving full effect to the full enjoyment of human rights across the board. The delegation took due note of the views of the Committee, including the importance of harnessing information technology to give a broader appreciation of the provisions of the Covenant.

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Masisi on P1 billion water investment

25th October 2021
water project

The P1 billion water project launched by President Dr vMokgweetsi Masisi this week is said to be critical to the success of key projects planned in Lobatse – the Lobatse Milk Afric and Leather Park. After commissioning the multi-million Pula Masama-Mmamashia water project last week following its completion, on Thursday, Masisi performed ground-breaking ceremony of yet another major water project, the Lobatse Water Supply Master Plan (LWSMP1).

The water project was conceptualized in 2009 to address water shortage in areas along the Greater Gaborone zone. These areas include Ramotswa, Otse, Mogobane, Mankgodi, Manyana, Goodhope, Lekgolobotlo, Mmathethe, Molapowabojang and villages surrounding. It was said that some major upcoming projects in Lobatse such as Lobatse Leather Park, Milk Afric and the Pioneer Border Gate are dependent on the success of this project, in order for them to take off and operate effectively. The two projects have been struggling to take-off despite government having put the necessary resources.

The Lobatse Leather Park is anticipated to create about 4700 jobs at the initial stage and 7000 jobs at full capacity. The project entails the development of a complex for different tanneries with the support of state-owned beef company, Botswana Meat Commission. It will comprise primary infrastructure such as a common effluent treatment plant, sewage treatment plant, and others.

When operational, the park is expected to supply the private sector with hides and skins, raw to finished leather tanneries, and the manufacturing of different leather products. These products include shoes, belts, jackets, and others, thereby playing an instrumental role in stimulating economic activity. Leather Beneficiation Park is seen as important for the leather industry as it would ensure that Botswana moves from exporting raw leather to finished leather goods. It is said research has established that there are plenty of hides and skins in the country from the three million cattle and 1.8 million goats.

Meanwhile, Milk Afric dairy farm project which was expected to be complete by the second half of 2018, is in the wilderness after the initial partnership between Botswana Development Corporation (BDC) and Milk Afric failed to bear fruits. BDC has been searching for a new partner for the project. Once fully operational, the farm will produce a total of 21.9 million litres or one third of the national milk demand, which is 65 million litres a year. At present, Botswana imports over 58.8 million litres from South Africa at a cost of P345 million annually.

The P120 million project is a Public Private Partnership deal between Lobatse Town Council (LTC),  with 10 percent shareholding through leasing its 1375.4 ha farm for 25 years; and 26 percent (P40 million) by Botswana Development Corporation (BDC). When speaking at the groundbreaking ceremony held in Ramotswa, Masisi said, in addition to improving the water supply for domestic needs and livelihoods, this infrastructural development will facilitate major projects in the Lobatse region, which are critical to the ailing, old town.

“Our objective as a country is to align developments with the National Vision 2036 Pillar 3 on Sustainable Development, which recognizes water as a very scarce resource which requires strategic management by key players.” Botswana is a developing country with an increasing population, Masisi said, adding that an increase in population naturally causes exponential growth in the demand for water. This is a reality that Botswana is faced with and challenged to address for sustainable water supply, the President said.

He indicated that this is why they are continuously witnessing major water projects undertaken by government, in collaboration with key partners. “Gaborone and surrounding areas have been experiencing an acute water supply deficit due to infrastructure that has outlived its potential to meet the growing demand for water by citizens. This particular project entails the construction of a Pump Station at Forest Hill in Gaborone, a 57 kilometre pipeline from Gaborone to Lobatse and a new Northern reservoir.”

The project, awarded China State Construction and Engineering Corporation/Van and Truck Hire Joint Venture at over P1 billion, is currently at 49% of its completion stage. There are 637 jobs created by this water project. “The transmission pipeline will convey 63 million litres of water a day from Gaborone to Lobatse. This is a great improvement compared to an average supply of 14 million litres of water that has been supplied to Lobatse, Borolong and surrounding areas,” Masisi said.

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UN quizzes Botswana on gays, Sebina defilement case

25th October 2021
EU

The United Nations Committee on Human Rights has taken Botswana to task over what it considers to be discrimination laws against lesbians and gays and delay in prosecuting suspects in the infamous Sebina defilement case.  The Botswana delegation led by Presidential Minister Kabo Morwaeng found itself against the wall before the United Nations Human Rights Committee of experts in Geneva, Switzerland.  

First to take Botswana head-on was the UN Committee member, C SOH, who noted that the recent ruling of the High Court pays particular attention to the penal code penalising same-sex sexual conduct as it found that it infringed on the constitutional rights, dignity, liberty and privacy of the LGBTI persons (lesbians and gays).  “Nonetheless, I note with deep concern that those discriminatory provisions of the of the penal code remain in effect and regrettably the government stated in its periodic review before deciding whether or not to repeal section 164 it would still await the final determination of the court of appeal in the case of Motshidiemang vs State,” said Soh.

According to Soh, “This statement makes us cast doubt on the will of the government to vigorously” strike out section 164, which criminalises sex between people of the same sex.  “In this respect, I would like to ask the delegation to explain what the intended goal by the government was when it filed an appeal against the unconstitutionality ruling of the High Court,” he said. Soh said the Botswana Government had also explained that no persons had been convicted under this provision, section 164, ever since the penal code was enacted.

“However, media reports indicate that in August 2016, the government of a Gaborone Magistrate Court sentenced a man three years in prison who had been charged and convicted under section 164 for engaging in unnatural acts. Can the delegation explain these discrepancies relating to persons who have been convicted and sentenced under section 164 of the penal code,” he said.  He also wanted the Botswana delegation to explain how the government addresses how customary courts have been discriminating against LGBTI persons.

Another member of the UN Committee, Duncan Muhumuza, expressed concern that the Directorate of Public Prosecution (DPP) has taken more than four years to prosecute suspects in the Sebina saga in which a councillor was alleged to have slept with a student who was also a minor.
Replying to concerns raised by the UN experts, Mogakolodi Segwagwa, chief state counsel at the Attorney General Chambers, noted that one of the UN committee members has “become fearful that the fact that government appealed the case could be a sign that there is lack of will or doubt on the part of the government as to abolishing or outlawing of same-sex relations.”

“But I would like to assure the panel that Botswana has over the years proved itself at all times to be compliant with court orders. There are many examples I could put forward where the government had to make sure that court orders were executed. That is the assurance I can give out to the committee,” said Segwagwa.  He said there was a good reason for appealing the decision of the High Court in which it outlawed section 164.

“This was a High Court decision, and as you know in our jurisdiction when a judge is at the same court with his brothers and his sisters and fellow judges, whatever decision he puts out so far as that particular court is concerned, it is not law because it is not binding on his fellow brothers and sisters and it is not binding on fellow judges,” explained Segwagwa. He added that “It is merely persuasive so much so that some other judges may choose to when a similar case comes before him or her, depart and ignore the position that that particular judge espoused, and he or she can do so with ease.”

Segwagwa further explained that “There was a very pressing need for this matter to be appealed to the Court of Appeal for purposes of crystalising the law and for purposes of ensuring that if there is any aspect of the law that the High Court had overlooked in arriving at this particular decision, then such an aspect can be taken into consideration by the Court of Appeal.” “So we are waiting for that judgement, and once it comes, it will be implemented. I take it that the committee would like the Court of Appeal to uphold the decision below and strike out this particular section.”

He assured the UN experts that when the High Court struck out section 164 in 2019, the country did not erupt into violence, adding that this was an “indication that we don’t have anything against people of LGBT. They are our brothers and sisters, and we co-exist with them.”  Regarding the Sebina saga, Segwagwa said the painful case “where this councillor was said to have had sexual intercourse with a child is the police dealt with a matter as it is the law and we all know that the police are bound by their Act to do so without fear and prejudice.”

He said Upon completion of their investigation, “the matter was handed over to the prosecuting authority, as Mr Muhumuza had indicated, it has been four years and we concede that four years is a long time and that it is unreasonably a long time and that it defeats the whole adage that justice should be sweetest and freshest so much so that the case needed to be speeded along.”

He added that “But the problem we have which is not a problem in the sense of it being a problem, but the impediment we have in the sense that the Constitution created the Office of the Director of Prosecutions under section 51 subsection A and if you go to that particular section and you read subsection six, the director shall not be subjected to the control of another authority.”

Segwagwa said, “this is the section that was inserted in this constitution to safeguard the independence of the Director of DPP to ensure that he or she prosecutes matters without fear, favour and prejudice and it presents impediment where we can’t try and say to the DPP, go and register or indicate your position now, tomorrow or next year and that is why it has taken all this time, but we believe attempts are being made that it finds its way to the court.”

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