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ANTI MONEY LAUNDERING LAWS IN BOTSWANA

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In 2022 we saw the revision of numerous laws to enhance Botswana’s compliance with international standards and the recommendations by the Financial Action Task Force (FATF). The FATF is an intergovernmental global money laundering and terrorist financing watchdog, which sets standards to prevent illicit activities and identifies and reviews high risk jurisdictions that are at risk of being used for these activities.  There are currently 39 members of the FATF,  37 jurisdictions and 2 regional organisations (the Gulf Corporation and the European Commission). Neighbouring South Africa is the only African member of the FATF, while other jurisdictions, including Botswana participate through FATF Regional Bodies such as the Eastern and Southern African Anti Money Laundering Group (ESAAMLG) who are associate members.

In October 2018, after a compliance evaluation to assess compliance by Botswana of the FATF standards by FATF, Botswana was identified as vulnerable to illicit activities and resulted in the grey listing of Botswana for 4 years. This assessment consists of 40 Recommendations against money laundering, terrorist financing, financing of the proliferation of weapons of mass destruction as well as the effectiveness of a countries implementation of the standards through 11 “immediate outcomes.”

WHAT DOES IT MEAN TO BE ON THE FATF GREYLIST

  • Botswana was ranked amongst countries like Yemen, South Sudan, Barbados, Albania and now South Africa as having weak measures in place to stop the flow of illicit funds
  • Inhibits foreign investments which can stunt economic growth as fewer investors and/or international lenders will be fearful of doing business in the country. Therefore results in an automatic inclusion to the EU cooperative jurisdictions and listing by UK as a high-risk country
  • It is a reputational risk to the countries good name and potential for increased foreign activity
  • Results in increased bureaucracy and costs for investors wishing to do business in the country
  • NGOs may suffer as investors become reluctant to send donor funds for fear of potential sanctions
  • International aid funders such as the World Bank and IMF apply additional restrictions and may result in aid being declined.

According to a press statement by the Ministry of Finance and Economic Development on June 29, 2021 and action plan was devised to ensure compliance with the FATF in respect of the following key reforms:

  1. Developing a comprehensive nations Anti-Money Laundering (AML) and Counter Terrorism Financing (CTF) strategy and policy informed by national risk assessment results
  2. Develop risk based supervision and monitoring programmes; and
  3. Improving the dissemination and use of financial intelligence by the Financial Intelligence Unity (FIU) and other to identify and investigate ML cases

WHAT HAS BEEN AMENDED?

 The Companies Act was amended to ensure that the beneficial owner is disclosed on all companies.  This means each company must disclose “a natural person who directly or indirectly through any contact, arrangement, understanding, relationship or otherwise, is the ultimate beneficiary of a share or other securities in a company.”

A great milestone in terms of the National Development Plan 11 objectives. This will continue to be a priority area for the Government in 2023/2024 as the failure of these measures has huge implications on the economy.

DOES THE FINANCIAL INTELLIGENCE ACT, 2022 APPLY TO YOU? 

Unlike before the Financial Intelligence Act, 2022 does not apply to every registered company and only applies to accountable institutions and specified parties such as – trustees, non-profit organisations registered under the Societies Act, lawyers, real estate practitioners, accountants, Non-Bank Financial Institutions, a car dealership.

CONCLUSION

Increased measures to combat AML by our government are critical to the integrity of our financial system and help set the tone for a culture of compliance and law and order when dealing with other countries.

Given the volume of transactions processed by our banks, it’s important for businesses and individuals alike to acquaint themselves with factors that can help them identify money laundering and illicit activity.

For your benefit, the top 5 red flags of any transaction include a) secretive new clients who avoid personal contact , b) unusual or multiple transactions, c) Ultimate beneficial ownership is unclear, d) negative media  e) jurisdictional risk. We encourage you to implement a strict supplier onboarding process, colloquially termed as Know Your Customer (KYC). KYC forms enable your organisation to perform a due diligence before engaging in any business transaction.

*ENDS*

Should you require any assistance with the implications and application of the proposed Bill please feel free to contact us on info@peolegal.co.bw or +267 3975779.

The information contained in this Legal Brief was intended for our clients and correct to the best of the authors knowledge at the time of publication. Before making any decision or taking any action, you should consult the contacts listed here.

INSIGHTS: YOUTH EMPOWERMENT AGENDA

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Did you know? Africa is home to the youngest population in the world and according to United Nations, 70% of people living in sub-Saharan Africa are under the age of 30. With such a high number of youth, it is only reasonable to prioritise young people and their potential for growth opportunities throughout the continent.

Developing and emerging nations are largely characterised by high unemployment and our country is no different, despite our famed economic growth. Numerous factors including minimal youth engagement in policy making, a disconnect in the education system and the labour market are some of the contributing factors.  Each year 12 million young people enter the job market in Africa, but the formal private sector is too small to absorb this growing labour force and it is therefore safe to conclude that unemployment cannot be understood as an absence of jobs but a need to develop intentional youth development and leadership programmes to advance opportunities, accelerate growth and to create an enabling environment for employment through entrepreneurship and innovation.

For the legal brief on the Budget Speech 2023/2024 we zone in on young Batswana and what the youth development mandate looks like.

  1. Development Funding

The Youth Development Fund (YDF) is a socio-economic programme for start-ups and expanding businesses. Across the continent programmes such as  the YDF are designed to provide young entrepreneurs with opportunities to access financial and non-financial business development support in order to grow and develop their businesses. This fund is administered under the Ministry of Sports, Youth and Culture and provides loans and grants to qualifying youth owned businesses.

Government has retained funding of P104 million to assist entrepreneurs.  This is especially important for young people in business as most problems preventing the growth of small entrepreneurs is a lack of funds. We advise small businesses to familiarise themselves with the rules and regulations of the various opportunities, as well as to prioritise regulatory compliance. More importantly, the youth must be encouraged to explore innovative business opportunities to establish a vibrant small business sector which can unlock investment and growth.

  1. Economic inclusion and citizen participation 

Earlier, we noted that unemployment cannot solely be understood as an absence of jobs but rather a collection of challenges that can be addressed through targeted developmental interventions. This dearth of intentional programmes and the coordination therefore act as constraints to proper inclusion, development and access. Through initiatives such as the Economic Inclusion Act, Entrepreneurship Policy, Minerals Policy and Middle-Class strategy, the government will prioritise inclusion of citizens in the economic development.

The development of Batswana entrepreneurs will directly tie in with the value chain development priority of the 2023/2024 budget.

The current sense in the market is a lack of clarity as to what exactly is required of the private sector in terms of the Economic Inclusion Act. While we wait for further clarity through the publication of regulations, the obligation is on each market participant to familiarise themselves with the inclusion priority areas and to see how to support inclusion in their value chain.

We would like to encourage the youth and small businesses to be more outward looking so as to venture into external markets which will help them to grow. The ultimate aim of these government interventions is to assist in the creation of opportunities and development. The youth should be careful not be overly reliant and expectant but rather to use these opportunities to compete on the basis of unique value and innovation.

*ENDS*

Should you require any assistance with the implications and application of the proposed Bill please feel free to contact us on info@peolegal.co.bw or +267 3975779.

The information contained in this Legal Brief was intended for our clients and correct to the best of the authors knowledge at the time of publication. Before making any decision or taking any action, you should consult the contacts listed here.

INSIGHTS: BUSINESS ENVIRONMENT REFORM TAKEOUTS FROM THE 2023/2024 BUDGET SPEECH

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The annual Budget Speech is an opportunity for the government to share its financial priorities, plans, and forecasts.

These high-level policies affect every sector. This week we will be publishing daily insights into what our clients across the various sectors can expect in the 2023/2024 financial year.

For our first, we deep dive into Business Environment Reform (BER) in the property sector, a strategic priority area for Government due to the sectors potential to drive increased sustainable growth and investment.

  1. Property and Conveyancing

Property and Landowners can breathe a collective sigh of relief with the announcement of urgent amendments to the Transfer Duty Act, which can be expected to ease the backlog at the Deeds Registry office and the Botswana Unified Revenue Service.

For non-citizens especially, the challenge with the Transfer Duty Act 2018 was the imposition of a 30% transfer duty payable on property acquisitions. By example, if a non-citizen was purchasing property worth BWP 9 million, a duty of BWP 2.7 million was payable.

As we have seen across numerous transactions, these considerably high rates resulted in failed closures due to the distorted value placed on the property. We are hopeful the proposed amendments will result in some reprieve toward enabling foreign investment and business into the country.

  1. Special Economic Zones (SEZ)

SEZ’s remain a key government focus to attract foreign direct investment.  As a developmental state, the private sector plays a critical role to increased economic activity through trade, capital and labour, all of which require an enabling environment for businesses and corporates. The rules applicable in SEZ are intended to boost

  • economic development,
  • create ease in doing business,
  • increase FDI,
  • increase employment and effective administration.

Importantly SEZ’s support export based business which can be utilised to take advantage of the market opportunities as prescribed in the African Continental Free Trade Area.

What you need to know about SEZ’s:

  • Botswana has 8 SEZ’s namely; Sir Seretse Khama International Airport, Tuli Block, Lobatse, Fairgrounds, Pandamatenga, Greater Palapye, Francistown, and Selebi Phikwe.
  • Agribusiness activities such as, manufacturing, warehousing distribution or logistic services can be established in SEZ’s.
  • Ease of doing business is facilitated by a one-stop service centre for all licensing, permits, visas, provision of information and approvals
  • SEZ’s licence holders enjoy 5% corporate tax benefits for first 10 years and 10% thereafter.

Newsflash: Serving court documents

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Order 8 of the Rules of High Court deals with effecting service of court documents. Service of a court documents is the process of making sure that any person who is required to be given a copy of an application, summons or any document filed with court is given it in a way which complies with order 8 of the Rules of High Court. The first important rule relates to the requirements of giving
notice of the originating process.

Who can serve?

Any adult who has no interest in the cause and is able to explain its nature and contents.
No interest: someone who does not stand to benefit.
Adult: someone over the age of 16 years.

What time can court documents be served?

Order 8 rule (1) states that unless in cases of arrest; writs of summons, petitions, orders, pleadings and any other documents shall not be served on a Sunday, and between 7pm and 7am of any day.

Personal Service order 8 rule 2 (1)

How is personal service effected?
An originating process is required to be served personally on the respondents or defendants named in the originating documents. This can be done by leaving a copy of the document with the person or if the person does not accept the copy by putting the copy down in the person’s presence and telling the person the nature of the document. Even people in prison should be served personally.

Personal service on a corporation/ company
Personal service of a document on a corporation is affected;
– By personally serving the document on a principal officer of the corporation.
– Delivery of a copy to a responsible employee at its registered office or its principal place of business with the jurisdiction or
– By affixing a copy at the main door of such office or place of business.

Instances where personal service is not effective
Personal service that has been effected by an interest party in a matrimonial proceedings or proceedings involving custody. This was illustrated in the case of Mmereki Poloko v Ephenia and another.

The information contained in this newsflash was intended for our clients and correct to the best of the author’s knowledge at the time of publication. Before making any decision or taking any action, please consult us, at info@peolegal.co.bw or +267 3975779.

Newsflash: Magistrates’ Court Amendment Act (2022)

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Prior to this amendment, the position was that neither of the ranks of Magistrates had jurisdiction over civil matters where the claim exceeded P40 000 nor the jurisdiction to give criminal sentences that exceed 15 years or give fines above P 40 000. However, the making or passing of the new Magistrates’ Court (Amendment) Act No.22 of 2022, has brought increments to the monetary value of the civil matters of different ranks of Magistrates can determine and further to the maximum sentences or fines they may give.

Regional and Chief Magistrates have been awarded the power to determine civil claims where the total amount claimed or the land in dispute is not higher than P 100 000. Further, they may give criminal sentences that are not longer than 20 years imprisonment and fines which are not higher than P100 000. Principal Magistrates on the other hand have been permitted to determine civil matters where the claim or land dispute is not higher than P80 000.

Senior Magistrates may now determine civil matters where a claim that involves money or land in dispute is no greater than P70 000 and further, they may impose criminal sentences not higher than 12 years or fines above P70 000. The first, second and third ranks of Magistrates have jurisdiction over civil matters which do not exceed P60 000, P50 000, and P40 000 respectively. Further, they may give criminal sentences which do not exceed 10 years, 7 years, and 5 years respectively.

The above changes mean that civil and criminal matters that fall within the scope of the Magistrates Court as per the new law, no longer have to be referred to High Court.

The information contained in this newsflash was intended for our clients and correct to the best of the author’s knowledge at the time of publication. Before making any decision or taking any action, please consult us, at info@peolegal.co.bw or +267 3975779.