The Law Society of Botswana (LSB) has made it clear that it was not bluffing when it expressed its intention to challenge the appointment of Justice Brand to the court of Appeal bench along with any “secretive” appointments to the High court and court of Appeal benches. In a perhaps cleverly orchestrated and swift move, the Society served the Attorney General and the Judicial Service Commission with a statutory notice of the lawsuit, a day after LSB chairperson Lawrence Lecha made mention of the intention to challenge Brand’s appointment.
Lecha first spoke about the intention to challenge Brand’s appointment during the opening of this year’s legal year at the Gaborone High court on Tuesday this week. The following day the Society served the Attorney General and the Judicial Service Commission with the statutory notice detailing the intention of the lawsuit. The State President, Lieutenant General Seretse Khama Ian Khama, the Judicial Service Commission (JSC) and the Attorney General will be sued at the expiry of the thirty day statutory notice. “Please take notice that the above named claimant intends, at the expiry of the thirty days, to launch court proceedings against the President of the Republic of Botswana Lieutenant General Seretse Khama Ian Khama (the “President” and/ or the Judicial Service Commission (“JSC) and /or the Government of the Republic of Botswana for an order in the following terms, an order reviewing and /or setting aside and declaring as unlawful, null and void the appointment of Mr Justice Frederik Daniel Jacobus (Fritz) Brand as the Judge of the court of Appeal,” the notice reads it part.
The LSB would further ask the court to make an order directing and ordering the JSC to provide and or disclose the process followed in identifying and placing before the JSC for appointment the 66 year old Brand.
Alternatively they would ask for an order reviewing and setting aside the decision of the JSC to recommend him for appointment.
Around October last year, 2015, President Khama appointed Brand as the Judge of the court of Appeal. The appointment accordingly followed the recommendation by the JSC and Judge President of the Court of Appeal, Ian Kirby says Brand did not apply for the job, but was rather “invited.”
The main objection however is that Brand’s appointment was clouded by secrecy which is common in the appointment of Judges in the country.
“In making the recommendation, the JSC never placed an advert in the Botswana government Gazette and in fact did not place any notice at all requesting for interested persons to fill the vacant position aforesaid,” LSB stated.
It further stated that, although Brand had started his job, to date, it is unknown as to who exactly negotiated and approached him for appointment.
“The LSB therefore contend that the manner of appointment to such a high Judicial office in a highly secretive and clandestine manner is unlawful and goes against all known rules of transparency in a democratic dispensation and is contrary to law,” it further contended.
The LSB also intends to ask the court to declare that the current system of recommendation for appointment as carried out by the JSC lacks transparency, openness and is irregular and contrary to law and good governance.
They would therefore ask the court to direct the JSC to advertise all or any vacant positions in the court of Appeal and the High court and to conduct interviews in respect thereof before making a recommendation for any appointment of a Judge.
According to LSB Executive Secretary, Tebogo Moipolai, the decision to challenge Brand’s appointment was first made in November, 2015, but due to some tactical legal issues that required to be resolved was revisited in December and again the resolution was confirmed.
“The reasons for the challenge relate to the process of appointment. As with others at the CoA (Court of Appeal) it lacks transparency since there was no advertisement or interview. It is not known to LSB even with a member in the JSC, where and how he was approached and by who,” Moipolai explained.
The other reason for the challenge, Moipolai says, is as stated by the LSB Chairperson, Lecha in his speech, on Tuesday this week before President Khama, Attorney General and the JSC when the High court legal year of 2016 was officially opened at the Gaborone High court.
Lecha had mentioned that, over the years, since as far back as 2006, or earlier, the LSB has advocated for a change in approach to the process of appointment of Judges with very limited success.”
He said although the interpretation of the Constitution was before the court in as far as the appointment of Judges was concerned, he was disappointed that, “whilst this litigation is ongoing, the Judicial Service Commission moves on with the same process that is being challenged. We would have thought that it would be prudent to allow the courts to pronounce on the proper process to follow first, or at best on the side of caution and accept the interpretation suggested by the Society in the interim.”
At the time Lecha was speaking, a Judgment in which the society was challenging the refusal to appoint a local Attorney, Omphemetse Motumise by President Khama was yet to be issued. Khama refused to make the appointment even though Motumise was recommended by the JSC as required by law.
Lecha further added that, “an accepted principle in the dispensation of justice is that the Presiding Officers of courts must reflect the demographics of the society that those courts serve. The Society however notes that this is not the case in the High Court and especially the Court of Appeal where gender, race and age are disproportionate to the demographic position of the country.”
Gov’t reacts to Lecha’s remarks
Lecha’s remarks seemingly rubbed government officials the wrong way and the Ministry of Defence, Justice and Security in particular demanded an apology. The Ministry lamented that the speech contained racist, xenophobic and discriminatory undertones. Even the Judge President of the court of Appeal, Justice Ian Kirby was not amused and expressed the same view as the Ministry. He labelled Lecha’s remarks as “rude”.
Nonetheless the LSB has maintained that it stands by the speech and that it would not apologise.
“It needs to be stated that being a multiracial, multicultural and tolerant nation does not mean as a society we should shy away from publicly dealing with issues simply because they deal with race,” LSB retorted in a press statement that followed.
It further added that, “Any suggestion that it (speech) has racial, xenophobic and discriminatory undertones is either indicative of a serious dearth of knowledge of social sciences or simply mischievous. As said in the speech, in South Africa, the often talked about transformation of the Judiciary which is being championed by the country’s Chief Justice is based on this very same principle and the country has made great strides in that regard whilst Botswana, a much older democracy lags behind.”
Meanwhile Botswana’s Chief Justice, Maruping Dibotelo says his ideal Judiciary has to be well resourced and independent.
“I have committed what remains of my tenure as Chief Justice to ensuring that the Judiciary is properly resourced to enable it to discharge its constitutional mandate,” he stated and added that while he agrees that key Stakeholders in the Justice system must in general work together towards delivery of quality justice, “it should not be interpreted as equating the Judiciary which is an arm of the State, to Departments or Institutions that fall under the Ministry of Defence, Justice and Security because to do so could undermine and cloud the independence of the Judiciary which we continue to guard jealously at all times”.
“The Judiciary is required and must be a strong, impartial, independent and accountable Institution. Independence of the Judiciary is neither an esoteric pronouncement nor a privilege for the conform of Judicial Officers but a right and a practical measure for the benefit of Citizens, in a democratic state such as ours, to ensure that courts are true and genuine arbiters of cases brought before them. Whatever a litigant is standing or position in society we are all deemed equal before the law,” Dibotelo pointed out.
Dibotelo further expressed concern at the growing number of lawsuits against the State President.
“2015 was a turbulent year for the judiciary, a year marked by a litany of litigation against His Excellency the President, The Judicial Service Commission, The Attorney General etc. The litigation not only tested the integrity, strength of our Judiciary, and our commitment to adherence to the Rule of law but on hindsight equally demonstrated public confidence on the judiciary to promptly and adequately address issues brought before it,” he stated.
However the LSB suggests that the Chief Justice “is all talk but no action” because, “there has in the last few years been an unmistakable impression that cases of national importance or significance to Government always find themselves before the same Judges or panel of Judges, be it at the court of Appeal or the High court.”
The Society stressed that the society needs to be placed on record that Forum Shopping is as deplorable as the Chief Justice said in 2014, “Any partial allocation of cases further destroys the credibility of our judiciary.”
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.