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Judges panel to rule on death penalty

Three death row inmate keenly awaiting judgment

The Court of Appeal is being compelled to pronounce the constitutionality of the death penalty which is provided for by section 203 of the Penal Code of the laws of Botswana.


In a case that has a potential to do away with the death sentence, the Directorate of Public Prosecution (DPP) would lead arguments before a panel of judges of the Appeal Court on the 29th of this Month in support of the said sentence while Kgosiitsile Ngakayagae would oppose the application on behalf of a murder convict, Rodney Alfred Masoko who is cited in the case.


The DPP intends to challenge Justice Tshepo Motswagole’s judgment in which he outlawed the death sentence when handling Masoko’s case in October 2013. When passing the judgment, Motswagole argued that section 203 contravened several sections of the constitution and sentenced Masoko to life imprisonment for murdering his girlfriend in cold blood.


Although the said section prescribes death penalty for murder crimes which were committed without extenuating circumstances, Motswagole maintained that the practice was inhumane and could be evoked at the judge’s discretion.


The DPP however wants the court of appeal to force Motswagole to make a fresh judgment on the matter and evoke section 203 as there were no extenuating circumstances in Masoko’s case.


The court of appeal’s matter comes at a time when three death row in -mates are yet to appear before the same court with desperate pleas for their lives. Patrick Gabaakanye was sentenced to death by Justice Walia in July 2014 while co-accused, Daniel Semi and Gaolatlhe Thusang were given the same capital sentence by Justice Leburu last year.


When passing the judgment, Justice Leburu interpreted section 203 differently from Justice Motswagole. Leburu’s understanding is that the court is at large to probe extenuating or mitigating and or aggravating factors in the absence of which, the death sentence has to be meted out.


The case that was before Leburu, involved three murder accused, Semi and Thusang who were hired by a certain Agisanyang Motukwa to kill his father because he believed he was bewitching him. Although Leburu sentenced the hired men to death, he found the witchcraft believe, to be an extenuating circumstance and gave Motukwa a lesser sentence.


The decision by the court of appeal would therefore have a direct impact on appeal cases of the three men who are waiting in prison to be “hanged by their necks until they die.”


Meanwhile the court is to decide whether to reduce a 25 year jail sentence of a man who brutally murdered his pregnant girlfriend in 2008. Mokgweetsi Mosope was sentenced by the high court to what he feels is an excessive sentence and has engaged the service of an attorney to persuade the court to reduce his sentence to a maximum of 20 years jail term instead.


However the Public Prosecution maintains that the 25 years imprisonment was warranted in this case looking at the fact that he attacked a defenceless woman and also killed his unborn child during the brutal attack. According to the Prosecution, Masoko killed the girlfriend following a heated argument over his continued failure to sleep at her house. Following the quarrel, he went away and on his return, the girlfriend who did not know he was holding a murder weapon invited him to bed. Instead he turned on her and stabbed her with a knife multiple times. Mosope admitted that he killed the girlfriend in a spate of anger.


THE STATUS QUO
Premeditated murder in Botswana is punishable by death through hanging. However the courts can exercise discretion where there are extenuating circumstances and can deliver a non-capital punishment of a long term imprisonment. In most cases the offenders are given a maximum of 25 years jail term.


Other crimes that attract the same sentence include treason, espionage and military offences.


The treason crimes include attempting to overthrow the government, attempting to forcibly change the law or government policies, attempting to usurp the state’s executive power, assisting the enemy in wartime, assisting anyone who threatens the security of the state or instigating invasion of the state .


Some of the military offences that could attract death sentence include aiding the enemy, cowardly behaviour, mutiny involving violence or threat of violence and failure to suppress mutiny with the intent to assist the enemy.


However, the military offence is not a matter of the judicial court and rather that of the military and the state President who is the commander of the armed forces by statute. The President can actually prescribe the manner of execution for the members of the Botswana Defence Force offenders.

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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
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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