A legal battle has ensued between Basarwa and Batawana Kgosikgolo, Tawana Moremi following the Tawana Landboard to allocate the latter a piece of land in Moremi Game Reserve inside the Okavango Delta.
Basarwa, through Khwedom Council, an association that represents and protects the interests and rights of Basarwa, has dragged the Tawana Land Board and Moremi to the Land Tribunal to halt the allocation. They are accusing Kgosi Tawana of an attempt to disinherit them of their Chiefs Island, situated in Moremi Game Reserve inside the Okavango Delta.
According to papers before the Court, the Land Tribunal had handed down a judgement that if Tawana Land Board grants the land applied for to Moremi, it should notify Khwedom Council.
According to an application filed by Rantao Attorneys on behalf of Basarwa, on 11th January 2021, Khwedom Council received a written letter from the Tawana Land Board confirming the Land Board’s decision to reject Khwedom Council’s objection to Moremi’s application for the inheritance of Chief’s Island. The Land Board stated that it dismissed the Khwedom Council’s complaint because “…the reasons that have been brought before the Board lack merit to sustain the objection.”
Khwedom Council then appealed the decision of the Board before the Land Tribunal. According to the association, the first inhabitants and/or owners of the land, properly known as Tsobaoro (now known as Chiefs Island), were not Moremi’s parents and/or other ancestors. The earliest inhabitants of Chiefs Island among Batswana are the San of the Anikhwe group, whom another San group later joined called the Bugakhwe and, after that, the Bayei.
The association said these earlier inhabitants of the land now known as Chiefs Island have ancestors buried there. They were removed and dispossessed in or around 1980. “Following the establishment of Moremi Game Reserve as it so often happened to indigenous tribes/communities, these inhabitants of the land now known as Chiefs Island were removed from their land and relocated to settlements outside the Game Reserve.
Chiefs Island became part of the game reserve. The association also explains in Court papers how some applicants in the case are descendants of one Mr Gabaitumele, one of the first Bagukhwe inhabitants of Tabaoro, now known as Chiefs Island.
Basarwa tribesmen argue that the Tawana Land Board did not have the jurisdiction to determine an essential inheritance dispute in their grounds of appeal. They also say that the Land Board fundamentally erred in failing to give reasonable grounds for which it made a finding that the objection “lack merit to sustain the objection.”
“The 1st Respondent (Tawana Land Board) erred in law and fact in holding that the objection of the 1st Applicant (Khwedom Council) was without merit in that the 1st Respondent did not have regard to the legitimate order of succession the lineage concerning Tsabaoro/Chiefs Island,” Basarwa argued.
Basarwa tribespeople are also of the view that the decision that Moremi is to inherit the land in question is unlawful on serval grounds. They posit that the conclusion of the Tawana Land Board was not based on the correct facts, to the extent that it disinherits Basarwa communities and that it violates their right to equality and non-discrimination, which are provided for the Constitution of Botswana. Khwedom Council also argued that the decision of the Tawana Land Board undermines Basarwa’s and infringes the dignity of the San and Bayei communities in their tribal identity as heirs to their land.
For his part, Moremi said Basarwa tribesmen who have launched the appeal do not have rights over the land in question. He said they were relocated in 1963 when the land became part of the game reserve.
He said the designation of Moremi Game Reserve was an act of the Government of Bechuanaland Protectorate. None of the parties to this case or their forebears had any part. “Prescriptions under the Prescriptions Act started to run at least 41 years ago. It is common case that none of the Appellants has during the above period sought to assert, by any legal proceedings,” said Moremi. Through his lawyers, Charles Tlagae Attorneys, Moremi argued that the decision to relocate was again a Government decision in which neither he nor his forebears nor, for that matter, Tawana Land Board had no part.
“The 2nd Respondent (Moremi) or his forebears having no part in the “force” in question, it cannot be relied upon against the 2nd Respondent to defeat acquisitive prescription,” he said. Moremi said the acquisition period under section 3 of the Act has long expired. It must be borne in mind that in terms of that section, acquisitive prescription automatically follows from the expiry of the prescribed period by operation of law.
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.