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CHAPTER 08:07
FINANCIAL INTELLIGENCE

ARRANGEMENT OF SECTIONS

   SECTION

PART I
Preliminary

   1.   Short title

   2.   Interpretation

   2A.   Conflict with other laws

PART II
Establishment of Financial Intelligence Agency

   3.   Establishment of Agency

   3A.   Appointment of Director General

   4.   Functions of Agency

   5.   Security screening of Director General, etc.

PART III
National Coordinating Committee on Financial Intelligence

   6.   Establishment of National Coordinating Committee on Financial Intelligence

   7.   Functions of Committee

   8.   Meetings of Committee

PART IV
Duty to Identify Customers and Keep Records

   9.   Obligations of specified party

   9A.   Qualifications for compliance officers

   9B.   Conduct ongoing due diligence

   9C.   Monitoring complex, unusual and high risk transactions

   9D.   Failure to complete due diligence

   10.   Identification of customers

   10A.   Enhanced due diligence

   10B.   Prominent influential persons

   10C.   Prohibition of anonymous accounts

   10D.   Prohibition of shell banks

   10E.   Prohibition of establishing or maintaining business relationship with terrorist or member of terrorist group

   10F.   Correspondent banking

   10G.   Enhanced due diligence measures relating to beneficiaries of life insurance services

   11.   Keeping of records

   12.   Period records to be kept

   13.   Records kept by third party

   14.   Admissibility of electronic records

   15.   Offences relating to records

   16.   Access to records of specified party

PART V
Reporting Obligation and Cash Transactions

   17.   Reporting suspicious transactions

   18.   Cash transactions above prescribed limit

   19.   General reporting

   20.   Conveyance of money

   21.   Electronic transfer of money into or out of Botswana

   21A.   Wire transfer

   22.   Content of report

   23.   Continuation of transaction

   24.   Interruption of transaction by Agency

   25.   Offences relating to reporting

   26.   Indemnity of person making report

   26A.   Offences for non-compliance

PART VI
Referral, Supervision and Exchange of Information

   27.   Obligations of supervisory authorities

   27A.   Obligations of accountable institutions

   28.   Receipt of information by Agency

   29.   Referral of information by Agency

   30.   Referral of information by supervisory authority

   31.   Membership of international financial organisation

   32.   Certificate issued by Agency

   33.   Information held by Agency

PART VII
General Provisions

   34.   Confidentiality by Director General, etc.

   34A.   Confidentiality by third parties

   35.   Declaration of assets by Director General, etc.

   36.   Indemnity of Director General, etc.

   37.   [Repealed]

   38.   Amendment of Schedule

   39.   [Repealed]

   40.   Regulations

      Schedule I

      Schedule II

Act 6, 2009,
S.I. 13, 2010,
S.I. 68, 2013,
Act 7 of 2018,
S.I. 111, 2018,
S.I. 190, 2018.

An Act to provide for the establishment of the Financial Intelligence Agency; to establish a National Coordinating Committee on Financial Intelligence; to provide for the reporting of suspicious transactions and other cash transactions; to provide for mutual assistance with comparable bodies outside Botswana in relation to financial information and for matters connected therewith and incidental thereto.

[Date of commencement: Sections 1-8, 34-36 and 40: 1st March, 2010;
Sections 9-33 and 37-39: 21st June, 2013.
]

[GENERAL AMENDMENT — Section 2 of Act 7 of 2018 substitutes for the word "Director" whenever it appears in the Act, the words "Director General".]

PART I
Preliminary (ss 1-2)

1.   Short title

   This Act may be cited as the Financial Intelligence Act.

2.   Interpretation

   In this Act unless the context otherwise requires-

   "accountable institution" means a person referred to in Schedule III, and includes an associate or subsidiary outside of the person or employee of such person;

   "act of terrorism" has the same meaning assigned to it under the Counter-Terrorism Act;

   "Agency" means the Financial Intelligence Agency established under section 3;

   "anonymous account" means an account which cannot be linked to any person or be traced to any customer;

   "arms of war" has the same meaning assigned to it under the Arms and Ammunition Act;

   "beneficial owner" means a natural person who, directly or indirectly through any contract, arrangement, understanding, relationship or otherwise, is the ultimate beneficiary of a share or other securities in a company;

   "business relationship" means any arrangement made between a customer and a specified party or accountable institution where the purpose or effect of the arrangement is to facilitate an occasional, frequent, habitual or regular course of dealing between the person or legal arrangement and the specified party or accountable institution where payment to be made is not known or capable of being ascertained at the time of the conclusion of the arrangement;

   "cash" means coin and paper money of Botswana or of another country that is designated as a legal tender and that circulates as, and is customarily used and accepted as, a medium of exchange in the country of issue;

   "close associate" means a person who is closely connected to another person socially, professionally or through business interests or activities;

   "Committee" means the National Coordinating Committee on Financial Intelligence established under section 6;

   "comparable body" means an institution or government agency outside Botswana with functions similar to those of the Agency;

   "correspondent banking" means the provision of banking services by one bank to another;

   "credible sources" means a reliable source of information such as international institutions, authoritative publications and mutual evaluation or detailed assessment reports;

   "customer" includes, a natural person, unincorporated body, legal arrangement, legal person or body corporate who has entered into or is in the process of entering into a-

   (a)   business relationship; or

   (b)   single transaction;

with an accountable institution or specified party;

   "Director General" means the Director General of the Agency;

   "Directorate" means the Directorate of Intelligence and Security established under the Intelligence and Security Service Act;

   "Egmont Group" means an informal body of governments that share the common goal of providing a forum to enhance mutual cooperation and share financial information in order to detect financial offences;

   "financial offence" means money laundering, financing of an act of terrorism, financing of proliferation of arms of war or NBC weapon or the acquisition of property from the proceeds of any other offence;

   "guidance notes" means guidance, instructions or recommendations issued by the Agency or supervisory authority to assist a specified party or an accountable institution to comply with the provisions of this Act;

   "high risk business" means a business-

   (a)   incorporated in a high risk jurisdiction;

   (b)   having strong ties with a business situated in a high risk jurisdiction;

   (c)   dealing in goods, services or commodities that present a high risk for money laundering or financing of an act of terrorism, or financing of proliferation of arms of war or NBC weapon;

   (d)   that appears on the sanction list;

   (e)   that has a business relationship with other businesses that appear on the sanction list;

   (f)   that is subject to or has been a subject of an investigation by an investigatory or supervisory authority;

   (g)   that is managed by a person who is a subject of an investigation by an investigatory or supervisory authority; or

   (h)   that is subject to sanctions, embargos or similar measures issued by the United Nations Security Council;

   "high risk jurisdiction" means a country that-

   (a)   is identified by a competent authority as having no or weak regime on anti-money laundering, counter-financing of an act of terrorism or counter-financing of proliferation of arms of war or NBC weapon;

   (b)   is subject to sanctions, embargos or similar measures issued by the United Nations Security Council;

   (c)   is identified by the FATF or any such similar body to be a high risk jurisdiction; or

   (d)   provides funding or support for terrorist activities or that has been designated as a country that supports terrorism or a country that allows high risk business;

   "immediate member of the family" means a spouse, son, daughter, sibling or parent;

   "investigatory authority" means an authority empowered by an Act of Parliament to investigate or prosecute unlawful activities;

   "Kgosi" has the same meaning as assigned to it under the Bogosi Act;

   "legal arrangement" means express trusts or other similar arrangement;

   "money laundering" has the same meaning assigned to it under the Proceeds and Instruments of Crime Act;

   "NBC weapon" means-

   (a)   nuclear explosive device as defined in the Nuclear Weapons (Prohibition) Act;

   (b)   biological or toxin weapons as defined in the Biological and Toxin Weapons (Prohibition) Act; or

   (c)   chemical weapons as defined in the Chemical Weapons (Prohibition) Act;

   "proliferation" means the manufacture, acquisition, possession, development, export, transhipment, brokering, transport, transfer, stockpiling or use of any arms of war or NBC weapons in contravention of the Arms and Ammunition Act, Nuclear Weapons (Prohibition) Act, Biological and Toxin Weapons (Prohibition) Act or Chemical Weapons (Prohibition) Act;

   "prominent influential person" means a person who is entrusted with public functions within Botswana or by a foreign country or an international organisation, his or her close associates or immediate member of the family and includes-

   (a)   a President;

   (b)   a Vice-President;

   (c)   a Cabinet Minister;

   (d)   a Speaker of the National Assembly;

   (e)   a Deputy Speaker of the National Assembly;

   (f)   a member of the National Assembly;

   (g)   a Councilor;

   (h)   a senior government official;

   (i)   a judicial officer;

   (j)   a Kgosi;

   (k)   a senior executive of a private entity;

   (l)    a senior executive of a public body;

   (m)   a senior executive of a political party;

   (n)   religious leaders;

   (o)   senior executives of international organisations operating in Botswana;

   (p)   a person who has in the last five years held any of the positions referred to in paragraphs (a) to (o); or

   (q)   such person as may be prescribed;

   "property" means money or any other movable, immovable, corporeal, or unincorporeal thing and includes any rights, securities and any interest in privileges and claims over the property including-

   (a)   any currency, whether or not the currency is legal tender of Botswana, and any bill, security, bond, negotiable instrument or any instrument capable of being negotiated which is payable to bearer or endorsed payable to bearer, whether expressed in Botswana currency or otherwise;

   (b)   any balance held in Botswana currency or in any other currency in accounts with any bank which carries on business in Botswana;

   (c)   any balance held in any currency with a bank outside Botswana;

   (d)   motor vehicle, ship, aircraft, boat, works of art, jewellery, precious metal or any other item of value;

   (e)   any right or interest in property;

   (f)   funds or other assets and any interest, dividends or income on or value accruing or generated by such funds or assets; and

   (g)   stored value devices;

   "risk management systems" means policies, technologies, procedures and controls that enable a specified party or accountable institution to establish the risk indicators used to characterise clients, products and services to different categories of risk (low, medium or high risk) with the aim of applying proportionate mitigating measures in relation to the potential risk of money laundering, financing of an act of terrorism or financing of proliferation of arms of war or NBC weapon in each category of risk established;

   "senior executive of a political party" means any person who is the president, vice-president, chairperson, deputy chairperson, secretary or treasurer of such political party, or who is a member of the committee or governing body thereof, or who holds in such political party any office or position similar to any of those mentioned above;

   "senior executive of a private entity" means a director, controlling officer, partner or any person who is concerned with the management of the private entity's affairs;

   "senior executive of a public body" means a senior officer of an organisation, establishment or body created by or under any enactment and includes any company in which Government has equity shares or any organisation or body where public moneys are used;

    "senior government official" means a public officer in senior management appointed under the Public Service Act or any senior officer appointed under any enactment;

   "senior management" with respect to a legal person or legal arrangement means a director, controlling officer, partner or any person who is concerned with the management of its affairs;

   "shell bank" has the same meaning assigned to it under the Banking Act; and

   "specified party" means a person listed in Schedule I to this Act;

   "supervisory authority" means a designated competent authority with responsibilities aimed at ensuring compliance by specified parties or accountable institutions;

   "suspicious transaction" means a transaction which-

   (a)   is inconsistent with a customer's known legitimate business, personal activities or with the normal business for the type of account which the customer holds;

   (b)   gives rise to a reasonable suspicion that it may involve financial offence,

   (c)   gives rise to a reasonable suspicion that it may involve property connected to the financing of an act of terrorism, or to be used to finance an act of terrorism or proliferation of arms of war or NBC weapon whether or not the property represents the proceeds of an offence;

   (d)   is made in circumstances of unusual or unjustified complexity;

   (e)   appears to have no economic justification or lawful objective;

   (f)   is made by or on behalf of a person whose identity has not been established to the satisfaction of the person with whom the transaction is made; or

   (g)   gives rise to suspicion for any other reason;

   "transaction" means an arrangement between a customer and a specified party or accountable insitution, and includes the following

-

   (a)   a deposit, withdrawal or transfer between accounts, opening an account, issuing a passbook, renting a safe deposit box, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit or other monetary instrument or investment security or any other payment, transfer or delivery by or through or to any person by whatever means effected;

   (b)   an arrangement between persons; or

   (c)   a proposed transaction;

   "trust" means-

   (a)   an obligation imposed by trust deed or other instrument binding another person, the trustee to administer or dispose of property for the benefit of another person or class of persons or for the achievement of the object stated in the trust deed or other instrument; or

   (b)   an interest in property held by a trustee for the benefit of another person.

2A.   Conflict with other laws

   In the event of any conflict or inconsistency between the provisions of this Act and any other law on anti-money laundering, counter-financing of an act of terrorism or counter-financing of proliferation of arms of war or NBC weapon, the provisions of this Act shall take precedence.

PART II
Establishment of Financial Intelligence Agency (ss 3-5)

3.   Establishment of Agency

   (1) There is hereby established an Agency, to be called the Financial Intelligence Agency which shall consist of a Director General and such other officers of the Agency, as may be necessary for the proper performance of the functions of the Agency.

   (2) ...

   (3) The Agency shall be a public office and accordingly, the provisions of the Public Service Act shall with such modifications as may be necessary, apply to the Director General and to officers of the Agency.

   (4) Subject to the provisions of this Act, the Agency shall not, in the performance of its functions, be subject to the direction or control of any other person or authority.

3A.   Appointment of Director General

   (1) There shall be a Director General who shall be appointed by the President on such terms and conditions as the President may, on the recommendation of the Minister, determine.

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