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‘ZCC constitution is a fraud’

Following an application by some Zion Christian Church (ZCC) members in Botswana challenging the church’s disregard and violation of its own constitution, another member who sits on the church’s lawyers’ panel launched a fresh application this week challenging that the 2009 Botswana constitution is fraudulent.

“The applicants have instituted legal proceedings against ZCC relying on the 2009 constitution that is not operational or not in use and as such the said constitution does not govern the affairs of ZCC in Botswana. I will further pray for the Honourable court to declare the said constitution null and void and of no force and effect,” Jost Sinvula Isaac who is a member and lawyer of ZCC declared in court papers the Weekend Post is in possession of.

Prior, 11 members of the church being Tshiamo Tladi, Khumo Gaorengwe, Mogomotsi Bogosi, Stanley Lejone, Daniel Mathibe, Lesetse Othamo, Mmusi Moeng, Mmatli Lopale, Lebogang Bose, Faneck Bareki and Tony Joseph last week dragged the church together with its Bishop Dr. Barnabas Edward Lekganyane to court saying the ZCC local branch is flouting on its constitution of 2009 – which is currently the subject of the “storm”.

Isaac, who sits in the ZCC attorneys’ panel instituted a fresh application this week as a member of the church and argued that the submission of the 2009 constitution by ZCC to the Registrar of Societies was not necessary as the church had a South African church constitution that was in use since 1994.

He said: “it is my humble submission that the 1994 constitution is the lawful and operational constitution of the ZCC church in Botswana as it has never been repealed or invalidated by any lawful process.”

Accordingly, he emphasized that the “2009 Botswana constitution is illegal, unlawful and a nullity in law and of no force and effect”.

When supporting his arguments the lawyer said there are new facts which he intends to bring before court, which have not been brought forth by any of the parties in the 11 members versus ZCC, Bishop Lekganyane, pending before the court. He added that he discovered the facts after thorough research, making inquiries and perusing the church file at the Registrar of Societies.  

Sometimes in the early 1990’s, he explained, the church applied for registration of its constitution and “exemption” from registration under the Societies Act. The exemption was then approved and they were issued with an exemption certificate. In applying for exemption, he said the church filed its constitution from South Africa, which was received by the Registrar of Societies on the 5th July 1994.

“The church was thus confirmed as a society exempted from registration in terms of the Act and that it was headquartered and controlled outside the country (South Africa), with a universal constitution that applied to all its members and was registered accordingly.”

A perusal of the church file at the Registrar of Societies’ office reveals that sometimes there was a misconception on the part of officials of the church as to its registration status in Botswana.

Indications are that at some stage the church engaged the Office of the President (OP) to have the church exempted from registration, when in fact the church was ‘already’ exempted from registration.

Therefore, the ZCC member stated further that it seems that the confusion that resulted in the registration of the 2009 constitution began with a public announcement that was made by the Registrar of Societies in 2008.

In terms of that notice, all churches which were registered using the constitutions of their ‘mother churches based outside the country’ were now required to file ‘local’ constitutions and a deadline was set for that purpose.

“This request was not made in terms of any provisions of the Societies Act. I must add that this public announcement was not addressed to the ZCC. While the legal propriety of this notice was itself questionable, it was nonetheless not necessary for the church to concern itself with the notice as it was an exempted society which had a constitution in place.”

Other churches that are exempted such as the Roman Catholic Church did not concern themselves with the notice and they did not file local constitutions.

In the end, the ZCC lawyer said a local constitution was developed and on June 2009, the 2009 constitution was submitted to the Registrar of Societies.

He pointed out that the registration status of the church is a matter that has not been ventilated at all by all the parties to the main application (11 ZCC members) “yet it is at the centre of the controversy in these proceedings”.   

According to Isaac, “when this 2009 constitution was submitted, what was overlooked is the fact that the church had a constitution that was in use and further that it was exempted from registration, and that under no circumstances could the church be required to submit local constitution.”

He added that the filing of the 2009 constitution therefore would have resulted in the Exemption of the church being rescinded or cancelled since the preamble of the said constitution states that the church is constituted in terms of Section 5 of the Societies Act.

“When the 2009 constitution was filed with the Registrar of Societies, the church awaited response from the Registrar’s office in relation to the registration of such constitution but to date there is no such response and my understanding is that in the absence of any meaningful response the said constitution was never formally registered for it to be effective.”

The ZCC member also expressed that he is greatly aggrieved by the 2009 constitution because it creates a different ZCC than the church itself. “The church will effectively have two parallel seemingly distinct constitutions since the 2009 constitution did not repeal the 1994 constitution nor was it registered.”

The constitution does not make any reference to the status of the church as an exempted society, suggesting that it was submitted under a misapprehension of facts as to the registration status of the church, he highlighted.

In the 2009 constitution, it is stated that: “the headquarters of the church is said to be Lot 20462, Gaborone. This has never been the headquarters of the church. To the best of my knowledge, the headquarters of the church is Zion city Moria in Limpopo Province of South Africa,” the lawyer clarified.

The Executive Council is entrusted with powers that have hitherto been the preserve of the Church Council, and the 2009 constitution as it is if adopted will hinder the smooth running of the church in Botswana, he highlighted.  

“I therefore intend to raise arguments questioning the validity of this 2009 constitution. The proceedings will have to involve the Registrar of Societies, through the Attorney General.”

“I have raised these issues with the church. In particular I have raised the issue of invalidity of the 2009 constitution with the General Secretary of the church as well as lawyers panel of the church,” he added.

However, Isaac said his pleas for the church to raise these issues have not been headed to. “I understand this to be because the members of the lawyers’ panel directly responsible for this case hold views that are different from mine,” he stated. “To my understanding the church has therefore not been advised to raise these issues in the manner I seek to raise them. I respect this divergent of views, and now ask this court to give me a hearing.”

“As a member of the church, which is a very big international church, and further as an official of the church where the applicants (11 members) in the main action worship, I have an interest in ensuring that the church is governed properly and I consider the raising of these issues to be my responsibility and duty.”

Going forward, he observed that a decision on this matter will also clear any confusion to the registration status of ZCC, the constitution that is in use and the responsibilities of the church in terms of the Societies Act.   

Isaac’s new application citing the Botswana church constitution as “a fraud” will be argued still before Justice Michael Mothobi on 19th August 2016 and it will determine whether the previous matter on violation of the local church constitution falls off or not.

In the 11 members’ case, ZCC was represented by Advocates Soraya Skhassim (SC) and Lenette Pillay from South Africa and Uyapo Ndadi of Ndadi Law Firm in Botswana sat in for the aggrieved 11 ZCC members while in the fresh application due in August, attorney Jost Sinvula Isaac represented himself.

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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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Botswana ranked 129 in female MPs representation

26th July 2022
Minister of Finance & Economic Development Peggy Serame

The Global Gender Gap Index, a report published by the World Economic Forum annually, has indicated that Botswana is among countries that fare badly when it comes to representation of women in legislative bodies.

The latest Global Gender Gap Index, published last week, benchmarks the current state and evolution of gender parity across four key dimensions (Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment). It is the longest-standing index which tracks progress towards closing these gaps over time since its inception in 2006.

This year, the Global Gender Gap Index benchmarked 146 countries. Of these, a subset of 102 countries have been represented in every edition of the index since 2006, further providing a large constant sample for time series analysis.

Botswana ranks number 66 overall (out of 146 countries), with good rankings in most of the pillars. Botswana ranks 1st in Health and Survival, 7th in the Economic Participation and Opportunity, 22nd in Educational Attainment, and 129th in Political Empowerment.

The Global Gender Gap Index measures scores on a 0 to 100 scale and scores can be interpreted as the distance covered towards parity (i.e. the percentage of the gender gap that has been closed). The cross-country comparisons aim to support the identification of the most effective policies to close gender gaps.

The Economic Participation and Opportunity sub-index contains three concepts: the participation gap, the remuneration gap and the advancement gap. The participation gap is captured using the difference between women and men in labour-force participation rates. The remuneration gap is captured through a hard data indicator (ratio of estimated female-to-male earned income) and a qualitative indicator gathered through the World Economic Forum’s annual Executive Opinion Survey (wage equality for similar work).

Finally, the gap between the advancement of women and men is captured through two hard data statistics (the ratio of women to men among legislators, senior officials and managers, and the ratio of women to men among technical and professional workers).

The Educational Attainment sub-index captures the gap between women’s and men’s current access to education through the enrolment ratios of women to men in primary-, secondary- and tertiary-level education. A longer-term view of the country’s ability to educate women and men in equal numbers is captured through the ratio of women’s literacy rate to men’s literacy rate.

Health and Survival sub-index provides an overview of the differences between women’s and men’s health using two indicators. The first is the sex ratio at birth, which aims specifically to capture the phenomenon of “missing women”, prevalent in countries with a strong son preference. Second, the index uses the gap between women’s and men’s healthy life expectancy.

This measure provides an estimate of the number of years that women and men can expect to live in good health by accounting for the years lost to violence, disease, malnutrition and other factors.
Political Empowerment sub-index measures the gap between men and women at the highest level of political decision-making through the ratio of women to men in ministerial positions and the ratio of women to men in parliamentary positions. In addition, the reported included the ratio of women to men in terms of years in executive office (prime minister or president) for the last 50 years.

In the last general elections, only three women won elections, compared to 54 males. The three women are; Nnaniki Makwinja (Lentsweletau-Mmopane), Talita Monnakgotla (Kgalagadi North), and Anna Mokgethi (Gaborone Bonnington North). Four women were elected through Specially Elected dispensation; Peggy Serame, Dr Unity Dow, Phildah Kereng and Beauty Manake. All female MPs — save Dow, who resigned — are members of the executive.

Overall, Botswana has 63 seats, all 57 elected by the electorates, and six elected by parliament. Early this year, Botswana Democratic Party (BDP) secretary general and Gaborone North MP, Mpho Balopi, successfully moved a motion in parliament calling for increment of elective seats from 57 to 61. Balopi contented that population growth demands the country respond by increasing the number of MPs.

In Africa, Botswana play second fiddle to countries like Rwanda, Namibia, South Africa, Burundi, and Zimbabwe who have better representation of women, with Rwanda being the only country with more than 50 percent of women in parliament.

The low number of women in parliament is attributed to Botswana’s current, electoral system, First-Past-the-Post. During the 9th parliament, then MP for Mahalapye East tabled a motion in parliament in which she sort to increase the number of Specially Elected MPs in parliament to augment female representation in the National Assembly.

The motion was opposed famously, by then Specially Elected MP, Botsalo Ntuane, who said the citizens were not in favour of such a move since it dilute democracy, instead suggesting the Botswana should switch to Proportional-Representation-System. Botswana is currently undergoing Constitutional Review process, with the commission, appointed in December, expected to deliver the report to President Mokgweetsi Masisi by September this year.

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