Following hurdles and long court battles, the government of Botswana has finally deported two Ugandan refugees who were incarcerated at the Dukwi refugee camp – while clearly acting in contempt of court.
The refugees, Musa Isabirye and Timothy Yamin had complained over living poor conditions and harassment by security agents at the migrant camp where they were residing prior to deportation.
In a court order, government was warned against deporting the Ugandan refugees. In fact, the order which was released on 23 October 2015 by Francistown High Court had barred the government or anyone from deporting them.
The court order stated that: “the respondents or anyone acting under their authority are prohibited and/or interdicted from deporting the applicants until the application for an interim interdict is determined to its finality.”
It further ruled that “the notice prohibiting applicants (refugees) legal representatives from consulting their clients is declared unconstitutional, irrational and unlawful. The applicants’ legal representatives are hereby permitted to consult applicants.”
WeekendPost can confirm that the refugees were on Monday night (26 October 2015) around 10pm last week deported under harsh circumstances.
In addition, their lawyer Martin Dingake of Dingake Law Partners was denied access to properly consult with them prior to their extradition, following their brief detention at Sir Seretse Khama Airport police station.
Government senior attorney at the Attorney General chambers Morulaganyi Chamme also confirmed in an affidavit, in which the refugees’ had filed an application for contempt of court based on their lawyers alleged denial of access to consult with them, that “my information is that the applicants (refugees) are no longer in the custody or control of people before the court in the current proceedings, because they were deported on the 26th October.”
Chamme said he however never discussed the court order with the Commissioner of Police and of Prisons and Rehabilitation. He said his concentration was on the deportation which was controlled by the Department of Immigration.
Meanwhile, a lawyer representing the Ugandan refugees, Martin Dingake said that the deportation is unfortunate as it points out to a contempt of court order.
“I therefore cannot deny nor confirm it but I have absolutely no reason to disbelieve it, coming as it does, from a person of Chamme’s rank within the AG’s chambers,” he told this publication.
Chamme, the AG senior official defended government and justified the contempt of court: “there is no evidence that the Attorney General, Commissioner of Police and Commissioner of Prisons and Rehabilitation have willfully disobeyed the court order. The founding affidavit clearly shows that the Commissioner of Prisons was completely removed from the conduct complained of. I aver that Attorney General Officials and to promote compliance with it. The rest of the respondents will explain their roles but my instruction are that they did not intend to disobey the order of court.”
Assistant Superintendent and deputy Station Commander at Sir Seretse Khama Airport Police Station, where the refugees were detained before being booted out of the country, Unoziba Rari also stated in the responding affidavit that “it has never been the intention of government to disobey any court order.” In fact he said the deportation of refugees is a preserve of the Immigration Department, which only provide support service, such as a holding cell, where necessary.
Rari also armored supervision saying: “all deportation decisions are made and affected by immigration department, hence, there is no way that we could act to the contrary of a court order in an immigration department case.”
As a consequence, Dingake stated in his replying affidavit on 3 November 2015 that he therefore “seek an order in terms of the draft order and will edge the court at the hearing of this matter, that the contempt as regards deportation be referred to oral evidence so that the key players are identified and each answer as to their role and can be examined and cross-examined.”
Most surprisingly, Dingake said the deponent does not explain how it could be that after an order was obtained interdicting the government or its officials from deporting the applicants while the deportation was nevertheless carried out.
“It is not difficult to see why the deponent would not have been firm with the Director as regards the order. This is mostly so because of the deponent’s attitude towards the court order, an attitude that was to play a role, one way or the other about not just refusal to allow me an opportunity to consult clients but also to have them deported in the middle of the night and under the cover of darkness,” the refugees prominent lawyer punched maintained.
He stressed that there can be no wilful disobedience of a court order other than this, done with the condonation of the office of the Attorney General and its officers, amongst whom the deponent is a senior member of.
“The Attorney General and her officers have thus degraded our values as a constitutional democracy because of misgivings they have about a court order and about which they have done absolutely nothing or very little, if any, to challenge.”
Meanwhile, when contacted for comment, Minister of Labour and Home Affairs Edwin Batshu who authorizes deportations said he does not know whether the Ugandan refugees have been extradited. “Please check with Shaw Kgathi as he manages refugees,” he told WeekendPost in a telephonic brief interview.
This publication then contacted Minister for Defense, Justice and Security (MoDJS) Shaw Kgathi who fumed at this newspaper when asked to ascertain if indeed Ugandan refugees and Eritrean asylum seekers as well as lawyer Salbany have been or are in the process of being deported: “whoever told you that will tell you the whole story,” adding that “I am in a meeting” before he hung up the phone.
According to Public Relations Officer in the MoJDS Samma Tabudi, “we do not have any refugees in Botswana as their status was long revoked in terms of section 11 (a) of the Refugees (Recognition and Control) Act (CAP 25:01).”
Tabudi however would not elaborate more on why they were repealed and on the other hand Dingake insisted that his clients are and were security threats and the deponent does not say how they are threats to national security. 10 Eritrean asylum seekers may seek resettlement
In a related matter, Lobatse High Court previously ruled against government’s move to refuse to grant 10 Eritrean football players who were requested asylum after losing 3 – 1 to Botswana national team in the 2018 world cup qualifiers – citing human rights violations in their country.
WeekendPost has established that the players will eventually exit the borders of Botswana and be resettled in another country believed to be in Southern Africa. It is not clear yet as to why the government is booting out the asylum seekers.
A lawyer representing the Eritrean asylum seekers Dick Bayford of Bayford Associates told this publication that government has been speaking to United Nations High Commissioner for Refugees (UNHCR) about their resettlement.
“The 10 Eritrean football players seeking for refugee status currently in Botswana will be moved to another country that is at least not of their origin,” Bayford highlighted. The notorious lawyer known for fighting gigantic battles with government said the resettlement of the Eritreans is now being discussed with countries that will host them.
Through Bayford’s facilitation, as sanctioned by Eritrea Movement for Democracy and Human Rights, the Eritrean asylum seekers were relieved by a High Court ruling in Lobatse on October, 19, which interceded and ruled in errand of the
Eritrean players which obligated the government to climb down on their prior move and agreed to grant them asylum.
The players have since been kept at an illegal immigrant detention centre.
However, when addressing a Botswana Democratic Party (BDP) media briefing this week Kgathi denied allegations that Botswana has somehow withdrawn Eritrean football players’ asylum.
He was saying this in light of a leaked letter from Permanent secretary, Segakweng Tsiane to the United Nations High Commission for Refugees (UNHCR) stating that the ten players should seek asylum elsewhere.
Botswana Football Association (BFA) leadership appears to be bowing down to Nicolas Zakhem’s football pressure. The development comes to the open roughly 24 hours after the Gaborone United director publicly labelled Maclean Letshwiti and his committee failures for deciding to chop five premier league clubs under the pretext of club licensing disqualification.
As early as Wednesday noon, the BFA emergency committee met with one agenda item to discuss the possibility of reinstating the clubs. This publication gathers that the committee saw it fit to pardon the five clubs without entertaining a second thought. The committee even invited the clubs to the meeting, sources say.
Late last month, the five teams were disqualified from playing in the premier league, pending the appeal outcome. The teams are Notwane, Extension Gunners, BR Highlanders, Mogoditshane Fighters, together with Gilport Lions. The immediate decision by BFA follows what Zakhem had said and advised that it was wrong to chop clubs given the COVID-19 situation in the country.
Unbeknownst to BFA leadership, observers stress that Zakhem exerted public pressure and influenced them to change tone without asking. At the meeting, BFA president Maclean Letshwiti, his vices, Marshlow Motlogelwa and Masego Ntshingane, Aryl Ralebala, the Botswana Football League (BFL) chairman, together with Alec Fela, an ordinary member in the now stubborn NEC.
However, the reactive move by the association to reinstate the clubs is highly welcomed in certain quarters, but it also appears to have left a permanent scar, especially at BFL. As things stand, the general feeling on the ground is to oust chairman Ralebala for failing to defend these clubs before the eyes of President Letshwiti.
This publication has intercepted an ongoing petition to unseat Ralebala and his deputies from the BFL board. Strange enough, the signed petition has thus far attracted clubs with household influence in the league itself. GU, Township Rollers, Notwane, Extension Gunners, Police XI are some clubs that have already appended their signatures to have Ralebala removed.
The big clubs are believed to fighting for principle and demand fair governance at BFL. The reality is that these clubs command a large following, and sponsors can always have a say based on their presence.
When approached for clarity, Ralebala said he could not comment on allegations or issues that lack substance. He concedes that he has heard about the rolling petition but is yet to lay his eyes on it. “I have heard about the petition, but I don’t know where it is coming from. I think it is best you ask those who have signed it. My focus is to commence the league and make sure everything is on point,” said Ralebala.
Football observers state that Ralebala, together with Letshwiti, are now faced with a dilemma. Reports coming from Lekidi Football Centre, although yet to be fabricated, are that the big guns lead others to form a parallel structure where they will play on their league. The clubs are angry at their chairman for taking many of the instructions from the BFA boss, and already a general melee is gathering traction that the two must resign as football has lost direction.
Zakhem says, although he supported Letshwiti, he has a sense of duty to stand for the truth. “I knew I supported Letshwiti and his troops, but you see, these guys have lost direction. I have long advised them that chopping clubs like this will cause confusion and delay progress, but they cannot listen. Letshwiti gave BFL autonomy, but I do not know why he is still interfering,” Zakhem said.
You may, by now, have heard about the dark side of the high profile P100 billion case, but wait, there is also the brighter side. Staff Writer AUBREY LUTE explores the positives accruing from the fall of the country’s biggest financial ‘scam-dal’.
A chance to fix the country’s financial record
They have not publicly been saying it, but the state agencies and the President, Dr Mokgweetsi Masisi, have been at pains to explain and rationalise how an amount almost equal to the country’s GPD left the central bank.
Many insiders attributed the country‘s troubled financial status to the case, including the grey-listing, non-compliance and identified deficiencies, some of which were hitting citizens around the globe. Botswana was in 2018 taken aback by FATF news that the country has been listed alongside countries that do not comply with (AML/CFT). The European Union Commission later flagged Botswana in March 2019 for lacking strategic deficiencies in AML/CFT regulations.
A chance to restore the dignity of the law enforcement arms
The case, without a doubt, was a distraction object on the law enforcement agencies, which spent a chunk of their time bickering and finger-pointing. A leaked audio recording exposing the explosive meeting of the law enforcement arms of government, being the Intelligence Services, Corruption and Economic Crimes agency, and the Prosecutions division summed it all.
The case presented a monumental crisis threatening the core of their being. Following these developments, the Presidency, clearly under the influence of a tripartite member, took a spine-chilling decision to disband the DCEC, a move that was saved by the organisation’s founding director- Tymon Katlholo’s bold protest.
The DPP, the Police, and the DCEC staff were used in the process to carry out bizarre instructions, some of which left the state with an egg on its face. Mistrust and backstabbing were the order of the day within the law enforcement agencies, and the P100 billion case was to blame. “Some badly wanted the plot executed while the other side badly wanted it to end to restore sanity,” an insider says.
The source further adds that “if the case did not end soon, it was going to end a lot of people’s relationships and careers because those who refused to carry the insane instructions were seen as sympathisers to former President Ian Khama.” With the case having fallen, these agencies can reflect, reconcile and go back to work.
A chance to fix diplomatic relations…
It was not only South Africa that was accused of Sabotaging Botswana’s prosecutorial goal. The state also accused several countries of refusing or delaying to assist in the process. Of all the nations, only South Africa has decided to take Botswana to task, perhaps on its proximity to Botswana. Others long ignored Botswana’s requests for assistance to the frustration of former DPP deputy director who repeatedly told the courts that they were struggling to get responses from the international community. With the case having fallen, Botswana may get a chance to face her actions, apologise and rectify the promise that lessons have been learnt.
Pressure off the shoulders of those who have to account…
The case did not only affect the law enforcement agencies. All the stakeholders were put in the spotlight to provide answers. The first to bolt out of the circle was the central bank, Moses Pelaelo, who, like DCEC director-general, long declared the case a scam. He told the world that his books were in order and that no money was missing risking his high-paying job.
According to insiders, his superiors, the then Minister of Finance and Development Planning – Dr Matsheka and his subordinate, Dr Wildfred Mandlebe, were only whispering, without success, to the Gods that there is no money missing.
So concerned and under pressure was Dr Sethibe- then the head of the Financial Intelligence Agency- who, like his Ministry supervisors, was engaging in silent screams to warn the powers that be, all in vain. He later jumped the ship to his former employer, the University of Botswana, allegedly to protect his name and career.
At the time of the fall of the case, the DIS and the DPP were at advanced plans to higher American to come and probe the Bank of Botswana’s servers in a move that bankers feared could compromise them further.
The case was bleeding the country’s coffers…
Had it not ended, the case was likely to end up ‘genuinely’ costing the country P100 billion Pula duo to its complexity and challenges. Insiders say sources who had sold the law enforcement agencies some falsified documents were paid handsomely.
Moreover, investigations were costly as they involved the international community and frequent travelling. “We are told there was also motivation for some officers to act abysmally and out of their way,” an insider said.
Lessons leant for public officers…
Public officers are often duty-bound to obey superiors instructions, no matter how irrational. The case was an eye-opener to many public officers that principle pays in the discharge of one’s duty at all times. The professional careers of the P100 billion case conspirators are currently in shambles. And as expected, the influencers, if at all there any, are nowhere to be seen.
Botswana remains on the grey list of the Financial Action Task Force (FATF) and the “black list” of the European Union, a status quo that highlights the country as one of the high-risk jurisdictions to deal with money.
The far-reaching implications of these listings is a compromised Foreign Direct Investment drive for Botswana. In particular, these listings mean investors now have to exercise some caution and restrain when thinking about putting their money in Botswana. On Tuesday, Minister of Finance and Economic Development Peggy Serame said that Botswana could see itself out of the “undesirable listing” by October this year.
Serame called for united and concerted efforts towards liberating Botswana out of this financial noncompliance tag. She said the delisting could be archived by concerted efforts from all stakeholders: players in the financial services sector, non-financial services businesses, regulators, and every individual who deals with transactions.
Botswana is a founding member of the Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG). This regional body subscribes to the Financial Action Task Force (FATF) to combat money laundering and financing of terrorism and proliferation.
One of the membership obligations to ESAAMLG is for Botswana to be peer-reviewed by the other Member States and other international bodies like the World Bank, IMF or FATF. The most recent assessment for Botswana to gauge compliance with the FATF standards was conducted by ESAAMLG in 2016 and culminated with publishing the Mutual Evaluation Report (MER) in 2017.
Following the discussion and adoption by the Task Force and approval of the MER by the Council of Ministers, the country was placed under enhanced follow-up. This led to a one (1) year observation period in which the country was expected to improve its technical compliance (legislative framework) by correcting the deficiencies identified in the MER.
After one year, in October 2018, the Task Force decided that the country was not taking sufficient steps to implement the recommendations made by the assessors in the MER. The Task Force recommended that Botswana be referred to the International Cooperation Review Group (ICRG) for monitoring and potential listing often referred to as the ‘FATF greylisting”.
Following the FATF greylisting, the EU placed Botswana on its list of high-risk third countries, often referred to as the ‘black list.’ In 2018, Botswana and FATF agreed to an Action Plan that had six items with several timelines. In terms of Risk and coordination, Botswana was told to develop and implement a risk-based comprehensive national AML/CFT strategy, assess the risks associated with legal persons, legal arrangements, and NPOs, and operationalize the modernized company registry to obtain and maintain essential information and Ultimate Beneficial Ownership information.
Botswana was further advised to enhance the capacity of the supervisory staff, including by developing risk-based supervision manuals and providing adequate training, implement risk-based AML/CFT supervision and impose sanctions against violations.
Furthermore, Botswana was instructed to improve analysis and dissemination of financial intelligence by the Financial Intelligence Unit, including operationalizing an online Suspicious Transactions Report filing platform and prioritizing high-risk predicate crimes, and enhancing the use of financial intelligence among the relevant law enforcement agencies.
Regarding terrorism financing investigation, Botswana was instructed to develop and implement a Counter Financing of Terrorism Strategy, operationalize the Counter-Terrorism Analysis and Fusion Centre, and ensure the Terrorism Financing investigation capacity of the law enforcement agencies.
In 2018, the 11th Parliament passed 25 pieces and, later, six others related to AML/CFT/CFP. At the just ended Parliamentary session of the 12th Parliament, lawmakers passed the Financial Intelligence (Amendment) Act to address the definition of beneficial ownership.
Cabinet approved the National AML/CFT/CFP Strategy of 2019-2024 in October 2019. At the June 2021 FATF Plenary meetings, the FATF made the initial determination that Botswana had substantially addressed the Action Plan and that this warranted an on-site assessment to verify that the implementation of Botswana’s AML/CFT/CFP reforms is in place and is being sustained. Furthermore, an assessment was to be instituted to check if the necessary political commitment remains to sustain implementation in the future.
Serame said in a televised press briefing that Botswana’s exit from the FATF grey list and the EU black list would be determined by the outcome of the on-site assessment, which will be discussed at the FATF Plenary in October 2021.
She revealed that the Botswana delegation attended the Eastern and Southern Africa Anti-Money Laundering Group 42nd Task Force of Senior Officials meeting from the 26th August to the 6th September 2021, followed by the Council of Ministers on the 7th September 2021.
She told the media that at these meetings, Botswana was commended for making progress in complying with the FATF standards by addressing deficiencies in her AML/CFT/CFP framework. “We are making all these efforts of complying with the FATF standards so that we guard against our financial system being used for money laundering, terrorism financing and proliferation financing,” she said.
“We are hopeful that at the October 2021 FATF Plenary meetings, the outcome of the on-site visit undertaken by the FATF in August 2021 will bear positive results, leading to Botswana being delisted from the FATF greylisting,” she said. However, Minister Serame called on all stakeholders to support the government to remove Botswana from the greylisting.
“As Government continues its efforts of putting in place the necessary legislative and institutional framework, due diligence must be exercised by all institutions, including the ordinary Motswana, so that no one is found dealing with financiers whose credibility is wanting,” she said.
The minister reiterated that all players in the financial services sector had a role to play: “It is important that where unsolicited funds are offered, the individual or entity so receiving the offer must ensure that the funds being offered are not associated with unlawful acts. If we are not diligent, criminals may use unsuspecting people and entities to launder proceeds of crime.”
She reiterated that the government is committed to doing all within its power to remove the country from the FATF “grey list” and the EU “black list”. However, she noted that to achieve that requires the cooperation and assistance of financial institutions, designated non-financial businesses and professions and individuals to ensure full compliance with AML/CFT/CFP rules and regulations.
“These efforts will not only assist us to be removed from these mentioned lists but are for the benefit of our country to maintain a high standard of financial prudence and an economy which genuine investors can have the confidence to invest in,” Serame explained.