A confidential audit conducted by Ministry of Defense, Justice and Security under Administration of Justice (AoJ) has proved that the AoJ staff is to be faulted for the poor administration of the housing allowance saga.
According to the audit report, the department failed to manage the startling gaffe by ensuring the proper process of accommodation and its allowance by the esteemed judges is adhered to.
This notwithstanding, all the Judges’ appointment letters including the suspended Justices, Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang states the clear procedure expected of the judges with regard to accommodation and allowances.
“You shall be eligible for government housing with hard furnishing, which is rent-free. In the event that there is no government house in which you could be accommodated, government will pay you a housing allowance currently at P4 510.00 per month,” appointment letters to each of the suspended Judges state.
Dingake was appointed Judge on the 1st September 2005, Garekwe on the 1st April 2011 while Weekend Post would not establish when Letsididi and Busang became substantive Judges.
However President Lt. Gen. Ian Khama on 26 August 2015 suspended the quartet for concurrently occupying government houses and undeservedly receiving accommodation allowances for a considerable period of time.
The audit which is titled: ‘interim internal audit report – Honourable judges housing allowance’ puts AoJ staff against the wall for not making sure that the procedure of ceasing allowances when Judges were now occupying institutional houses is/was followed.
The audit report points out that “the failure by Administration of Justice to terminate housing allowances of the suspended four judges was attributed to non-reconciliation of payroll, in contravention of financial procedure.”
The procedure necessitates that monthly reconciliation of salaries detects any discrepancies in salary and allowances payments. It further posits that AoJ failed to issue casualty returns to terminate payments of housing allowance upon occupation of institutional houses by Judges and no monthly reconciliation was done to detect payments of allowance to non-eligible officers.
According to the report, going forward: AoJ management should ensure that monthly reconciliation of salary payments is carried out to detect and prevent payments to non-eligible officers.“This state of affairs has exposed government funds to possibility of irrecoverable loss, considering the amount of overpayment already incurred.”Government has already paid close to 1 million pula wrongfully to the suspended judges.
Justice Key Dingake has stated in his founding affidavit, advised by former Registrar of the High Court Justice Godfrey Ntlhomiwa and Justice Gaolapelwe Ketlogetswe, that in the past other Judges have found themselves in a similar position and they were merely required in accordance with the relevant provisions of the law to make arrangements to pay back the money, as the matter is administrative and a mere blunder on the part of the staff at AoJ.
“The matter is purely administrative. The administrators (accounting officers) however, who should have acted to stop the payment of the allowance have not been charged with misconduct,” Justice Dingake highlighted. In the suspended Judges’s view, it was a primary responsibility of the AoJ or its accounting officer to stop housing allowance once a judge is allocated an official residence.
He continued: “other Judges who also received the allowance (even if they paid back) have not been sanctioned in anyway. The damage to the judiciary arising from a matter which ought to have been resolved administratively was not factored in.”In fact, he said after the issue of overpayment of allowances had been reported to the police, all of them still received the housing allowance as part of the August salaries.
More judges mistakenly paid housing allowance?
According to the quartet, they are not the only judges to whom housing or the allowances have been paid by the AoJ inadvertently when they were not entitled to the same. “In this context, your selective approach is highly questionable, amounts to harassment and witch-hunting,” the suspended judges maintain. Meanwhile, the CJ is said to have alluded that he will use the issue of Judges housing allowance to “destroy careers” and that some judges will never become Chief Justices of Botswana.
However, in the affidavit, Dibotelo said investigations are still ongoing and if others are found to have also unduly benefitted, the law will take its course. “There is simply no one above the law. The damage to the judiciary would have been occasioned by an attempt to conceal this wrongdoing.”
The confidential audit also suggests that the beneficiaries of erroneous payments had a duty to inform the employer of the overpayment, especially that it occurred over a considerable period of time. They should not have allowed accumulation of overpayments to the extent it is to-date, the auditors point out.
How gov’t lost P1 million in housing allowances
Justice Key Dingake
Information gathered by the auditors indicates that Dingake occupied the government house on the 29th December 2012 at Phakalane and he received payment of housing allowance from January 2013 to August 2015. In total, Dingake received P200, 467.95 for the accommodation.
Justice Modiri Letsidi
Letsidi stayed in an institutional house in Francistown since 2007. He received undeserved housing allowances from then until 2014. The Judge was overpaid by a whooping P494, 323.40.
Justice Ranier Busang
The auditors point out that Busang was allocated a government house on 9th April 2014 at Lobatse and was paid housing allowance from February 2014 to August 2015. Busang received P105, 468.75 for housing allowances while staying in a government house.
Justice Mercy Garekwe
In addition, the report also states that Garekwe also received an amount of P123,281.10 for housing allowances from February 2014 to August 2015 while occupying an institutional house.
Suspended Judges confirm receiving the housing allowance (undeservedly)
In the court papers, the four suspended Judges have stated that indeed they received the accommodation allowance and are willing to pay it back. They indicated: “we do hereby confirm to you that unbeknown to us, and without our consent, such allowance was paid to us.” “We are as a matter of fact willing to pay back the aforesaid amounts.”
Judges to pay the money back to government coffers?
The auditors have recommended that there should be a recovery of all housing allowance overpayment paid to the Judges who were not eligible, with immediate effect. This will also include termination of that allowance henceforth to undeserved judges.
Section 48 and 49 of the Public Finance and Administrations Act provide mechanisms by which public funds can be paid back.
Dibotelo defends AoJ, attacks the four suspended and other judges
In relation to audit report having proved that the four judges wrongfully received housing allowances, Chief Justice Maruping Dibotelo said in his answering affidavit before court that due to the gravity of the matter he decided to refer it to the Judicial Service Commission (JSC) which in turn resolved that the case be referred for investigation by the Police.
“This matter was viewed as having gone beyond a mere administrative lapse or mere overpayment into the realm of prima facie criminal behavior and or misbehavior,” Dibotelo pointed out. In addition Dibotelo highlighted that, as on the face of it, the receipt of the housing allowance and its apparent conversion by the applicants (four suspended judges) may constitute an act of “theft.”
The Chief Justice said the referral of the four applicants to the police after the audit report was not an act of discrimination nor was it actuated by malice. He said it flowed from the gravity of the revelations of the audit report, the huge sums unlawfully paid the recurrence over a very long period of time ranging from sixteen months to eighty five months.
He pointed out that the actions of the suspended judges appeared to constitute a potential criminal conduct so the AoJ could not be a complainant, investigator and adjudicator in the matter so they reported the matter to the independent and credible body in the form of the police. “So it was considered that investigations into the conduct of applicants be done by an impartial and competent authority to avoid allegations of bias and also ensure that the integrity of the investigations was not compromised,” he added.
With regard to confirmatory affidavits by Justice Nthomiwa and Justice Ketlogetswe, Dibotelo asserted that apart from bringing into question their own competence to hold higher office they miss the point altogether. “The point is that the applicants received allowances not due to them and utilized the same, thus converting the money they received to their own use. That act prima facie constitutes an act of theft,” the Chief Justice indicated.
He added that the fact that they may have been lapses on their part (AoJ) in the past does not excuse the applicants nor does it change the colour of the offense. Dibotelo said it is also immaterial whether they want to refund the money to the government.
Chief Justice also hits back at Justices Ntlhomiwa and Ketlogetswe
“I am advised that the attempt by the two judges (Nthomiwa and Ketlogetswe) who are former registrars of the High Court, to trivialize the possible unlawful conversion of close to one million pula by describing it as a mere administrative matter is also most unfortunate and brings into question their motive and credibility as witnesses.”
According to Dibotelo, the attempt by the duo to trivialize the unlawful conversion of the amount and describe it as a mere administrative matter is “shocking to say the least.”
Dibotelo also mentioned that both Justice Nthomiwa and Ketlogetswe have signed a petition calling for his impeachment as Chief Justice and have made defamatory statements concerning his person. “It has since come to my attention that some of the signatures in that petition may not be of those they purport to be. I am yet to however establish the truthfulness of this allegation, and if true act on it.”
The audit sought to establish whether government assets are safeguarded from losses of all kinds and make appropriate recommendations to address the identified anomalies.
The report on the audit exercise was conducted at the High Court from the 5th to the 25th August 2015, as requested by Chief Justice Maruping Dibotelo on the 4th August 2015.
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.