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BNYC autonomy tested in Court

The autonomy of the Botswana National Youth Council (BNYC) will be tested in the High Court on August 27th this year. Seven members of the National Executive Committee of the BNYC want the court to determine whether the Minister of Youth Sports and Culture has powers to dissolve the youth structure, and they have asked Gaborone based attorney, Uyapo Ndadi to ventilate their grievances.

A few weeks after the Law Society of Botswana lodged a legal suit against the President’s decision to refuse to appoint a High Court Judge following recommendations by the Judicial Service Commission, seven members of the Botswana National Youth Council’s Executive Committee are challenging the same Presidential power which was recently used to dissolve some structures of their Council, threatening jobs of many young people in the country.

In their notice of motion filed before the Lobatse High court this week, the youth expressed their intention to request Justice Letsididi to restrain and interdict President Lieutenant General Seretse Khama Ian Khama and his Cabinet Minister, Thapelo Olopeng of the Ministry of Youth, Sports and Culture from implementing the dissolution of the BNYC organs as they believe it was unprocedural.

“On the 11th July, 2015 the resolution was not to dissolve the BNYC structures but rather to allow for dialogue on the vision by the Ministry. The young people simply did not want to blindly lead the movement to an unknown path. To our surprise and shock we heard on Radio and Botswana Television that that the BNYC structures have been dissolved and our resolutions meant nothing as they have been set aside,” the affidavit explained in part, in reference to the resolution of the BNYSC special general meeting which was forced to take place by the powers that be.

At some point according to the youth, the Ministry’s Permanent Secretary is alleged to have threatened the whole committee members that they will, “vanish from the surface of earth,” if they did not do as they were instructed.

Sometimes last year the government approached the BNYC National Executive Committee (NEC) board and informed it of its intention to restructure the BNYC. According to the NEC, they assured the government of their commitment to the process provided they knew what it entailed.

The government, around June 2015 changed from restructuring to dissolution of structures and the Permanent Secretary (P.S) requested the Council to have a Special General meeting to move to dissolve some of the structures as per constitutional provisions. The Ministry then sponsored the congress which usually costs around P450 000.00 according to NEC.

“We impressed on the PS to tell us what the new BNYC would look like if we were to dissolve the current structures. This is important to us and still is because we would not blindly follow a process that we had no idea what it would culminate into. We in fact had heated arguments with the P.S a day before the scheduled SGM (Special General Meeting),” the youth explained further.

It was during the heated debate that the P.S allegedly threatened that the NEC members would vanish from the surface of the earth.

The youth further assert that they got to learn about the draft resolutions of the meeting on that same day, 10 July 2015. The draft resolution essentially provided that the BNYC structures, being the General Assembly, National Executive Committee, The District Youth Council, the village youth Councils and  the Secretariat are dissolved and replaced with organs created by  Presidential Directive No Cab 10 B/2015.

Nonetheless, during the special general meeting, the youth defiled the draft resolution and agreed that the Ministry should instead debate the matter further and engage other stakeholders.

“As the Executive Committee we had passed resolutions to the effect that should the restructuring process be effected and should there be job losses then concerned employees should be paid for the balance of their contracts with BNYC,” the youth affidavit further revealed their stand.

The youth want the President to replace the BNYC organs that he dissolved through the said Directive. Their contention is that, the President had no right to make such decision on a body which had been declared by the High Court to be independent and autonomous. The High Court made the ruling during a previous lawsuit in regards to debts owed to a former employee by the BNYC. Although the government was a direct sponsor of BNYC, then, it refused to take responsibility of the debt.

However the government has already made clear its intention to oppose the suit. The Minister in the MYSC, Thapelo Olopeng has averred that, “clearly the BNYC is under the Ministry of Youth Sports and Culture and nothing has been mentioned to outlaw the restructuring of the organs of the Council by way of a Presidential Directive.”

Olopeng through the papers filed before court has also denied knowledge of any threats made by the P.S to the BNYC youth.

“I aver that it was never the intention to dissolve BNYC.  In fact BNYC has not been dissolved as a matter of fact. The SGM was therefore concerned with a matter which I never concerned myself with. Government concerned itself with dissolution of existing organs of BNYC and replacing them with organs spelt by guidelines to Presidential Directive Cab 10 (B) 2015. It was the same way the Council was created that it was now restructured. This is an Executive power which the President is empowered to exercise without the advice of anybody,” Olopeng had stated.

Lately against the backdrop of allegations of corruption activities at the BNYC the government who is the primary financial donor of the BNYC took the decision through the Permanent Secretary of the Ministry of Youth, Sports and Culture (MYSC) who is also a BNYC board member that they will counter sign all financial transactions emanating from the BNYC in order to curb any financial impropriety and had since moved to replace existing structures with new once.

The seven complainants, Boniface Disho, Lydia Manthe, Nonofo Mmatli, Onkemetse Mokone, Meshack Ralephurwana, Alec Fela Monyake and Lawrence Kokole are represented by Uyapo Ndadi of Ndadi law firm.

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13 AUGUST 2022 Publication

12th August 2022

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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

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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