The Gaborone high court has ruled that while a strong case of discrimination as a constitutional infringement could be raised on the government policy to reserve certain portion of land for Basarwa’s development, the policy is rationally justifiable because it aims to achieve a noble cause of improving the conditions of a group “that has historically been disadvantaged and still remains after 55 years of independence marginalized in all facets of the economy and social development.”
This comes after a group of Ghanzi-based pastoral farmers challenged the decision of the Ghanzi Land Board to decline allocating them water rights on grounds that the water point they sought, lay within a prohibited buffer zone marked as the development area reserved for Remote Area Dweller (RADs) or Communities and that the Appellants’ membership did not consist of RADs community members to justify any allocation to it.
In his groundbreaking ruling, Justice Dr Zein Kebonang acknowledged discrimination as unlawful but legitimised it in favour of Basarwa citing their well-known peculiar social and economic injustices. Discussing a question of whether a policy that reserves water rights to a particular group to the exclusion of others can be justified in a democratic state such as Botswana, Kebonang in his ruling said: “It appears to me that such reservation of water rights to RADs communities to the exclusion of other communities in the same locale would on the face of it be unjustified and/or discriminatory. Section 3 of the Constitution of Botswana prohibits all forms of discrimination.
The Appellants’ have however not challenged the none-allocation of water rights to them on the basis of any constitutional infringement. No doubt such an argument may have presented intriguing legal questions.” The judge did not delve on the constitutionality of the issue given that the constitutionality argument had not been presented by any of the parties.
When addressing the issue of whether the policy on exclusion is justified, Justice Kebonang said the Land Board is tasked with managing land on behalf of all Batswana, adding that “while in an ideal setting the law must have the same beneficial impact on all constitutional subjects, equality does not always mean identical treatment.”
Justifying the court’s legitimization of discrimination, Kebonang said: “There is no doubt that the Policy excluding none RADs members from being allocated water rights in RADs areas is discriminatory. This nonetheless, in considering the case, a proper approach in my view would be to look at the policy from a “purpose” rather than an “effect” perspective in determining its rationality or justifiability.”
He continued that: “Where the policy goal is to improve the conditions of a group that is disadvantaged and has an ameliorative effect, then it is rationally justifiable even if it is discriminatory in effect.” Justice Kebonang said there was nothing wrong with a policy giving attention to the vulnerabilities of Basarwa, “It is undisputable that RADs communities are predominantly made up of Bushmen or the San people. This group has historically been disadvantaged and still remains after 55 years of independence, marginalized in all facets of the economy and social development. They continue to experience high rates of unemployment, poverty and face serious disadvantages in the areas of education, health and housing,” he stressed.
According him, “a policy that seeks to involve them or which is aimed at giving them a significant role in their own social and economic development to the exclusion of all others is not unreasonable when one has regard to historical injustices.” The development or reservation policy, Kebonang said, was in his view clearly aimed at ameliorating the conditions of the RADs communities. “These communities have been the most vulnerable. They have and continue to suffer prejudice and negative social characterization,” he said.
“The exclusive water rights conferred on them within the buffer zone is rationally justifiable in my view as it fulfills their participation in the economic activities of this country. It enables them to move away from being nomads and to take part in activities such as farming, whether pastoral and arable, and in the process supports their progress towards self-sufficiency. The means chosen to achieve this purpose are rationally related to serving that purpose, hence the ameliorative purpose for the policy and its justification,” he stressed.
Justice Kebonang further said while the court may interfere in the policy decisions made by a statutory body, it can only do so in cases where the decisions made are unlawful. “In the instant case, there is nothing that says the decision by the 1st Respondent (Ghanzi Land Board) was unlawful. Consequently, the Court cannot direct that the Appellants’ application be granted in violation of an existing policy. Equally, the 1st Respondent had no discretion to ignore its stated land allocation policy as that would have been an arbitrary act,” he said in his judgement before dismissing the appeal by Ghanzi pastoral farmers.
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.