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State rejects court order: maintains P100bn stolen

(DIS) agent Welheminah Mphoeng Maswabi

The State is making a last-ditch effort to save itself from enforcing Justice Dr Zein Kebonang’s judgment. He found that the State had falsified and fabricated evidence in the case in which P100 billion was allegedly stolen from the Bank of Botswana. 

Just when many had thought the drama was over, the State decided to appeal the case to reset everything back to where it was before the Kebonang judgement. On the other end, the accused lawyers describe the appeal as a stillborn and say it is a desperate exercise by the State meant to save face.

The case implicated former President Ian Khama, South African businesswoman Bridgette Motsepe, suspended Directorate of Intelligence and Services (DIS) agent Welheminah Mphoeng Maswabi, codenamed Butterfly and the agency’s former Director-General, Isaac Kgosi. Maswabi, who is at the centre of the case, was charged with terrorism financing, false passports, and corruption.

Discharging and acquitting Maswabi, Kebonang found that the investigators and the State ignored legal principles, falsified information, and fabricated and manipulated evidence.
However, in what is seen as an effort to defuse an imminent crisis that left the country’s rule of law in tatters following the judgement, the State has filed an appeal application at the Court of Appeal.

The State argues that Kebonang erred in his adjudication on the matter as it is currently before the Magistrate Court. Maswabi had approached the High Court seeking, among other orders, that she be discharged and acquitted of all charges she was facing before the High Court ruled in her favour.

Through the Directorate of Public Prosecutions (DPP), the State also argues that the judge erred on his findings that the State fabricated and falsified information to prosecute Maswabi.  But Maswabi, through his lawyers, Mack Bahuma Attorneys, has brushed aside the State’s appeal arguing, among others reasons, that the State did not follow the procedure when launching their appeal.

Maswabi’s lawyers said their client opposes the appeal lodged by the State because “to the extent that this is a criminal case or that these are criminal proceedings, the appellants (Directorate of Public Prosecutions and Attorney General) do not have a right of appeal against the judgement complained of, save with leave of the High Court or of the Court of Appeal, and only on a question of law.”

Maswabi’s lawyers also argue that the State has “launched an appeal without leave to appeal obtained from either the High Court or the Court of Appeal and (as) such the appeal is a nullity,” adding that there is no appeal pending before the Court of Appeal.

The lawyers said the decision of the DPP to prosecute Maswabi is reviewable on the traditional grounds of illegality and irrationality. They argued that the State did not file any answering affidavit to oppose Maswabi’s application for review, which resulted in Kebonang discharging and acquitting her. “…As such, the averments made in the founding and supplementary affidavits remain uncontroverted and are deemed to have been admitted by the appellants.”

They said the decision to prosecute Maswabi was reviewable “to the extent that the orders sought by Maswabi were granted and not opposed by the State, save for the discharge and acquittal of her, same is not appealable.” “I any event, the relief relating to the discharge and acquittal of the respondent (Maswabi) is based on findings of facts and therefore not appealable.

Throwing out the charges, Kebonang had also declared that the allegations and accusations contained in the charge sheet dated 17 October 2019 and the amended one dated 18 November 2020 in criminal case number CMRRS-000006-19 against the applicant were fabricated and are outright false,” the judge said.

He ruled that “the applicant is a signatory to various bank accounts held in various South African commercial banks under companies called Blue Flies and Fire Flies with a total balance in excess of US$10 billion were fabricated and outright false as such accounts do not exist, and the said companies are also non-existent.”

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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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