FINANCIAL INTELLIGENCE: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Financial Intelligence Regulations

Financial Intelligence (Implementation of United Nations Security Council Resolutions) Regulations

FINANCIAL INTELLIGENCE (IMPLEMENTATION OF UNITED NATIONS SECURITY COUNCIL RESOLUTIONS) REGULATIONS

(section 63)

(25th February, 2022)

ARRANGEMENT OF REGULATIONS

REGULATION

PART I
Preliminary

1. Citation

2. Interpretation

3. Application

PART II
Listing and De-Listing

4. National listing

5. Request for national listing by foreign country

6. Freezing of property held by nationally listed person, entity or structured group

7. Application for review

8. Publication of national listing

9. Proposing names for designation to United Nations Security Council

10. Designations made by United Nations Security Council

11. Freezing of property held by designated person

12. Claim by third party

13. National de-listing

14. Application for de-listing from United Nations Security Council List

15. Unfreezing of property following de-listing from United Nations Security Council List

16. Basis for maintaining property freeze after de-listing

17. Application to unfreeze where property was frozen in error

PART III
Conditions and Procedure for Utilisation of Frozen Property

18. Approval of usage of property by nationally listed person, entity or structured group

19. Procedure for approval and utilisation of frozen property of designated person, entity or group

PART IV
Prohibitions and Sanctions in Relation to Designated Persons, Entities or Groups or Nationally Listed Persons, Entities or Structured Groups

20. Prohibition on dealing with property held by designated or nationally listed person

21. Prohibition of making property, etc. available to designated or nationally listed person

22. Prohibition of travel by designated or nationally listed person

23. Prohibition of landing and taking off of certain aircrafts

PART V
Information

24. Circulation of lists

25. Notice of amendment to lists to be given

PART VI
General

26. Failure to file return report

27. Applications to Court

28. Revocation of S.I. No. 9 of 2020

29. Savings

S.I. 13, 2022.

PART I
Preliminary (regs 1-3)

1. Citation

These Regulations may be cited as the Financial Intelligence (Implementation of United Nations Security Council Resolutions) Regulations.

2. Interpretation

In these Regulations, unless the context otherwise requires—

"applicable resolutions" means the current United Nations Security Council Resolutions and future successor Resolutions relating to—

(a) the prevention and suppression of terrorism;

(b) countering financing of terrorism;

(d) any other threat to international peace and security as determined by the United Nations Security Council,

issued under Chapter VII of the United Nations Charter, including but not limited to the following Resolutions—

(i) Resolution 1267 of 1999;

(ii) Resolution 1373 of 2001;

(iii) Resolution 1718 of 2006;

(iv) Resolution 1874 of 2009;

(v) Resolution 2087 of 2013;

(vi) Resolution 2094 of 2013;

(vii) Resolution 2231 of 2015;

(viii) Resolution 2253 of 2015;

(ix) Resolution 2270 of 2016;

(x) Resolution 2321 of 2016; and

(xi) Resolution 2356 of 2017;

"Directorate" means Directorate of Intelligence and Security;

"focal point" means the organ established pursuant to the United Nations Security Council Resolution 1730 of 2006 to—

(a) receive requests for the de-listing of United Nations Security Council listed persons other than persons listed under the ISIL (Da’esh) and Al-Qaida Sanctions regime;

(b) receive and transmit to the United Nations Security Council ISIL (Da’esh) and Al-Qaida Sanctions Committee communications from individuals who—

(i) have been removed from the ISIL (Da’esh) and Al-Qaida Sanctions List, and

(ii) claim to have been subjected to the sanctions measures as a result of false or mistaken identification or confusion with individuals listed on the ISIL (Da’esh) and Al-Qaida Sanctions List; and

(c) receive requests from a listed person, entity or structured group for exemptions from the travel ban and asset freeze for all United Nations Security Council sanctions regimes pursuant to Resolution 2255 of 2015;

"freeze" means to prohibit the transfer, conversion, disposition or movement of any property or economic resources including oil and natural resources that are owned or controlled by a designated person or entity or by a nationally listed person or group, on the basis of, and for the duration of or the validity of an action initiated by a United Nations Security Council, in accordance with the applicable resolution, a competent national authority or a court of competent jurisdiction;

"national list" means the list of names of persons, entities or structured groups declared by the Minister as terrorist or terrorist groups, whom authorities must take action for the prevention and combating of terrorist activities specified in the Counter-Terrorism Act (Cap. 08:08);

"Office of the Ombudsperson" means the organ established pursuant to the United Nations Security Council Resolution 1904 of 2009 to receive requests from individuals, groups, undertakings or entities seeking to be removed from the ISIL (Da’esh) and Al-Qaida Sanctions List; and

"United Nations Security Council List" means the list of names of persons, entities and groups designated by United Nations Security Council as persons or groups against whom member states must take action for the prevention and combating of any activity specified in the applicable Resolution.

3. Application

These Regulations shall apply to—

(a) a designated person, entity or group;

(b) a nationally listed person, entity or structured group;

(d) a supervisory authority;

(e) an accountable institution;

(f) a relevant Government agency or department; and

(g) any person in Botswana including a person who is not a citizen of Botswana.

PART II
Listing and De-Listing (regs 4-17)

4. National listing

(1) The Director General of the Directorate shall submit information in relation to a person, entity or structured group to the Committee, in writing where—

(a) a person, entity or structured group has been convicted of an offence under the Counter-Terrorism Act (Cap. 08:08); or

(b) based on intelligence information, the Directorate has reasonable grounds to believe that the person, entity or structured group—

(i) is engaged in terrorism,

(ii) is owned wholly or jointly by a nationally listed person, entity or structured group, or designated person, entity or group,

(iii) is controlled directly or indirectly by a nationally listed person, entity or structured group, or a designated person, entity or group,

(iv) is acting on behalf of a nationally listed person, entity or structured group, or a designated person, entity or group, or

(v) is acting at the direction of a nationally listed person, entity or structured group, or a designated person, entity or group.

(2) The information pertaining to a person, entity or structured group for purposes of subregulation (1) shall include, where available, the—

(a) name of the person, family and pseudo names, any alias, including any alternative names and spelling, and titles of the person or group;

(b) place and date of birth or if—

(i) a company, the name of the company, the names of its directors, shareholders and beneficial owners, the date of registration or incorporation including the registration number and any other entity identification information, or

(ii) a trust, or other legal arrangement, the registered name of the trust or legal arrangement, the names of trustees or persons exercising ultimate control of the trust or legal arrangement and beneficial owners of the trust or legal arrangement, the date of registration or incorporation of the trust or legal arrangement, including the registration number and any other entity identification information;

(d) passport number, identity card number or registration number;

(e) gender;

(f) physical, postal and electronic mail addresses;

(g) occupation; and

(h) any other information which the Committee considers relevant.

(3) Upon receipt of a signed copy of a judgment convicting a person, entity or structured group of an offence under the Counter-Terrorism Act, the Committee shall, without delay, make a recommendation to the Minister to declare the person, entity or structured group as a terrorist or a terrorist group.

(4) Upon receipt of a recommendation from the Committee relating to a convicted person, entity or structured group, the Minister shall declare the person, entity or structured group a terrorist or terrorist group.

(5) Where the Committee is in receipt of information referred to in subregulation (1)(b), the Committee shall, if satisfied that the information meets the criteria for declaring a person, entity or structured group as a terrorist or terrorist group, make a recommendation to the Minister to declare the person, entity or structured group as a terrorist or terrorist group.

(6) Upon receipt of a recommendation from the Committee based on intelligence information, the Minister may, if satisfied that the recommendation meets the designation criteria, declare the person, entity or structured group a terrorist or terrorist group.

5. Request for national listing by foreign country

(1) Where a request for national listing is made by a foreign country, the request shall be submitted to the Director of Public Prosecutions in accordance with the Mutual Assistance in Criminal Matters Act (Cap. 08:04).

(2) Notwithstanding the provisions of the Mutual Assistance in Criminal Matters Act, upon receipt of a request from a foreign country, the Director of Public Prosecutions shall immediately forward the request to the Chairperson of the Committee or any member of the Committee authorised in writing by the Chairperson of the Committee for that purpose.

(3) The request for national listing by a foreign country referred to in subregulation (1) shall follow the process for national listing in regulation 4.

6. Freezing of property held by nationally listed person, entity or structured group

(1) Where the Minister nationally lists a person, entity or structured group, under regulation 4 or 5, the Chairperson of the Committee or any other member of the Committee, authorised in writing by the Chairperson of the Committee for that purpose, shall, without delay, cause a police officer or Director of Public Prosecutions to make an ex parte application to a court, for a freezing Order, in terms of section 17 or 18 of the Counter-Terrorism Act.

(2) The Chairperson of the Committee or any other member of the Committee, authorised in writing by the Chairperson of the Committee for that purpose, shall on receipt of the freezing Order, without delay, circulate or cause to be circulated through electronic mail, surface mail or any other means available, a copy of the freezing Order to—

(a) supervisory authorities;

(b) specified parties;

(d) relevant Government agencies or departments; and

(e) any other person.

(3) The Agency or the Directorate shall on receipt of the freezing Order—

(a) ensure that a specified party, accountable institution, Government agency or department, or any other person takes necessary action; and

(b) provide guidance, where necessary, to the specified party accountable institution, Government agency or department, or any other person, holding funds, property or other economic resources of a nationally listed person, entity or structured group in relation to their obligations under these Regulations.

(4) A specified party, accountable institution, relevant Government agency or department, and any other person shall on receipt of the freezing Order, without delay and without prior notification to the listed person, entity or structured group, identify and freeze all—

(a) property or economic resources that are owned or controlled by a nationally listed person, entity or structured group and not just those that can be tied to a particular terrorist act, plot or threat;

(b) property or economic resources that are wholly or jointly owned or controlled, directly or indirectly, by a nationally listed person, entity or structured group;

(c) property or economic resources derived from or generated by property or economic resources owned or controlled directly or indirectly by a nationally listed person, entity or structured group;

(d) property or economic resources of a person, entity or structured group acting on behalf of a nationally listed person, entity or structured group; and

(e) property or economic resources of a person, entity or structured group acting at the direction of a nationally listed person, entity or structured group.

(5) Subject to the provisions of these Regulations, no person shall, unless authorised under these Regulations, make property or economic resources or financial or other related services available directly or indirectly to—

(a) a nationally listed person, entity or structured group;

(b) any entity wholly or jointly owned by a nationally listed person, entity or structured group;

(c) any person, entity or structured group controlled directly or indirectly by a nationally listed person, entity or structured group;

(d) any person, entity or structured group acting on behalf of a nationally listed person, entity or structured group; or

(e) any person, entity or structured group acting at the direction of a nationally listed person, entity or structured group.

(6) A person referred to under subregulation (3) shall record property or economic resources frozen under this regulation, against the names of the owners and beneficial owners for proper management.

(7) A specified party, accountable institution, Government agency or department, or any other person shall, without delay, and in writing inform the Chairperson or any member of the Committee authorised in writing by the Chairperson for that purpose—

(a) of any action taken; and

(b) of the full particulars of any property or economic resources identified and frozen (including transactions and attempted transactions relating to the property or economic resources).

(8) Where a specified party, accountable institution, Government agency or department, or any other person searches their database and does not identify any property or economic resources, the specified party, accountable institution, Government agency or department, or any other person shall make a nil return report, in writing, to the Chairperson or any member of the Committee authorised in writing by the Chairperson for that purpose.

(9) The particulars required under subregulation (7)(b) shall include—

(a) in relation to a specified party that is a financial institution—

(i) the account number,

(ii) the name of the account holder,

(iii) the time of the freezing of the account,

(iv) the balance of the account at the time of freezing of the funds, property or economic resources,

(v) the related accounts, if any, including the balance of property or economic resources in the accounts at the time of freezing, and

(vi) an explanation as to the grounds for the identification of the related accounts; and

(b) in relation to any other specified party, accountable institution, Government agency or department, or any other person—

(i) the nature and description of the property or economic resources,

(ii) the name of the owner or holder of the property or economic resources,

(iii) the mode and date of acquisition of the property or economic resources,

(iv) the location of the property or economic resources, and

(v) the transactions relating to the property or economic resources.

(10) A person who knowingly contravenes subregulation (5) commits an offence of financing of terrorism and is liable to a penalty specified in section 5(1) of the Counter-Terrorism Act.

(11) Where the Minister has reasonable grounds to believe that a nationally listed person has property or any involvement in a foreign country, the Minister shall, without delay, cause the Director of Public Prosecutions to forward a copy of the declaration made by the Minister referred to in subregulation (1) to the Ministry responsible for international affairs to request the foreign country to freeze the property or economic resources of the listed person providing—

(a) as much information as possible to allow for identification of the nationally listed person; and

(b) information containing as much detail as possible on the reasons or basis for the listing.

7. Application for review

A nationally listed person, entity or structured group aggrieved by the decision of the Minister declaring the person, entity or structured group as a terrorist or terrorist group may make an application to the High Court for a review of the decision.

8. Publication of national listing

(1) The Chairperson of the Committee shall, without delay, upon receipt of a freezing Order referred to in regulation 6(1), but in no case before the circulation of the freezing Order under regulation 6(2), publish a national listing in the Gazette or such media as the Committee may consider appropriate, unless the Committee—

(a) believes that a listed person is an individual under the age of 18 years; or

(b) considers that the national listing should be restricted—

(i) in the interest of national security or justice, or

(ii) for reasons connected with the prevention and detection of financial offences.

(2) The Chairperson of the Committee shall, after the national list has taken effect, immediately inform, in writing, the nationally listed person, entity or structured group of—

(a) their inclusion in the national list;

(b) the implications of the national listing;

(d) the possibility of making request for utilising part of the frozen property or economic resources in accordance with these Regulations; and

(e) the possibility of making a request for a travel ban exemption.

(3) For purposes of subregulation (2)(b), the implications of national listing refer to the imposition of an asset freeze, arms and travel embargo.

(4) The Committee shall maintain a list of persons, entities and structured groups who have been declared as terrorists or terrorist groups.

9. Proposing names for designation to the United Nations Security Council

Where the Minister declares a person, entity or structured group as a terrorist or terrorist group and the person, entity or structured group has property or any involvement in a foreign country, the Minister shall, through the ministry responsible for international affairs, immediately forward a proposal for the inclusion of such person, entity or structured group in the United Nations Security Council List in the form prescribed by the United Nations Security Council and shall—

(a) provide as much relevant information as possible to allow for identification of the nationally listed person, entity or structured group;

(b) provide a statement of case containing as much detail as possible on the basis for the proposed designation; and

10. Designations made by United Nations Security Council

(1) As soon as a change to the United Nations Security Council List takes effect, the Minister responsible for international affairs shall, without delay, forward the list through electronic mail or any other means available to the Chairperson of the Committee or any member of the Committee authorised in writing by the Chairperson of the Committee for that purpose.

(2) The Chairperson of the Committee or any other member of the Committee authorised in writing by the Chairperson of the Committee for that purpose, shall, without delay, upon receipt of the United Nations Security Council List referred to in subregulation (1), and in no case later than 16 hours, circulate, through electronic mail, surface mail or any other means available, the list to—

(a) supervisory authorities;

(b) investigatory authorities;

(d) accountable institutions;

(e) Government agencies or departments; and

(f) any other person.

(3) The Agency or the Directorate shall on receipt of the United Nations Security Council List, without delay—

(a) ensure that a specified party, accountable institution, Government agency or department, or any other person takes necessary action; and

(b) provide guidance, where necessary, to the specified party accountable institution, Government agency or department, or any other person, holding funds, property or other economic resources of a designated person, entity or group in relation to their obligations under these Regulations.

11. Freezing of property held by designated person

(1) A specified party, accountable institution, relevant Government agency or department, or any other person to whom the United Nations Security Council List has been circulated shall, without delay, without prior notification, and in no later than 8 hours, identify and freeze all—

(a) property or economic resources that are owned or controlled by a designated person, entity, or group, and not just those that can be tied to a particular terrorist act, plot or threat;

(b) property or economic resources that are wholly or jointly owned or controlled, directly or indirectly, by a designated person, entity or group;

(c) property or economic resources derived from or generated by property or economic resources owned or controlled directly or indirectly by a designated person, entity or group;

(d) property or economic resources of a person, entity or group acting on behalf of a designated person, entity or group; or

(e) property or economic resources of a person, entity or group acting at the direction of a designated person, entity or group.

(2) For purposes of subregulation (1), in determining whether a designated person, entity or group controls property or economic resources, the fact that such property or economic resources is held in the name of an associate or relation is immaterial.

(3) A person referred to under subregulation (1) shall record property or economic resources frozen under this regulation, against the names of the owners and beneficial owners for proper management.

(4) Subject to these Regulations or the applicable Resolution, a specified party, accountable institution, relevant Government agency or department, or any other person shall not make frozen property, economic resources or financial or other related services available directly or indirectly, for the benefit of—

(a) a designated person, entity, or group;

(b) an entity or group that is wholly or jointly owned or controlled, directly or indirectly, by a designated person, entity or group;

(d) of a person, entity or group acting at the direction of a designated person, entity or group.

(5) A specified party, accountable institution, Government agency or department, or any other person shall, without delay, and in writing inform the Chairperson or any member of the Committee authorised in writing by the Chairperson for that purpose—

(a) of any action taken; and

(b) the full particulars of any property or economic resources identified and frozen (including transactions and attempted transactions relating to the property or economic resources).

(6) Where a specified party, accountable institution, Government agency or department, or any other person searches their database and does not identify any property or economic resource, the specified party, accountable institution, Government agency or department, or any other person shall make a nil return report, in writing, to the Chairperson or any member of the Committee authorised in writing by the Chairperson for that purpose.

(7) The particulars required under subregulation (5)(b) shall include—

(a) in relation to a specified party that is a financial institution—

(i) the account number,

(ii) the name of the account holder,

(iii) the time of the freezing of the account,

(iv) the balance of the account at the time of freezing of the property or economic resources,

(v) the related accounts, if any, including the balance of property or economic resources in the accounts at the time of freezing, and

(vi) an explanation as to the grounds for the identification of the related accounts; or

(b) in relation to any other specified party, accountable institution, relevant Government agency or department, or any other person—

(i) the nature and description of the property or economic resources,

(ii) the name of the owner or holder of the property or economic resources,

(iii) the mode and date of acquisition of the property or economic resources,

(iv) the location of the property or economic resources, and

(v) the transactions relating to the property or economic resources.

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.

{{{_source.title}}} {{#_source.showPrice}} {{{_source.displayPrice}}} {{/_source.showPrice}}