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Augustine rips into toothless Ombudsman

With just a year into the office, Ombudsman Augustine Makgonatsotlhe is already firing shots at his office and calling for rigorous transformation.

In an exclusive interview with WeekendPost this week the Ombudsman fired from the hip, saying that the office was in dire need of transformation; has to be given more powers; more resources and most importantly it should be given space to be totally independent.

 

“In an ideal situation, an institution of this nature (Ombudsman) should be completely independent; and that means legally independent, operationally independent, and even in terms of budgets, it should be divorced from the executive; so that at the end of the day they get the budget from parliament and also report directly to parliament with no connections to the executive,” Makgonatsotlhe pointed out.

He continued: “you know at the moment we are not completely independent. We are only independent in as far as operations or investigations of cases are concerned. Otherwise we rely on public service for everything including personnel, resources so to the extent that in other peoples’ eyes we are completely not independent,” the Ombudsman told WeekendPost. He also pointed out that the country is still confined to the “classical ombudsman” model which only makes recommendations which are not binding.

“I make recommendations in terms of our Ombudsman Act and that is not binding unlike in other countries like South Africa where it is very clear in their constitution that the decisions of the Public Protector are binding.” He added that in that case you cannot ignore them; it is either you comply or when you are dissatisfied with the decision you have to go to court and ask for judicial review.  “That’s why in Botswana people say the ombudsman is a toothless bulldog,” he lashed out.

The distinguished qualified legal practitioner also highlighted that the office of the Ombudsman being directly linked with the executive takes away its credibility. He said the office can therefore not be accredited to other international respected bodies like the United Nations body for human rights. A number of countries he said have adopted the modern model of the office of Ombudsman being South Africa, Namibia, Lesotho, Kenya, Tanzania, and Ghana.

 

The modern model gives the ombudsman more powers and multiple mandates that are not only confined to maladministration like it is in Botswana. “Personally, my belief is that we should go that route. But I am not the one to change the law. It is parliament with its wisdom to decide to change the law. They can move to that.”

Makgonatsotlhe met Thuli Madonsela to benchmark

Makgonatsotlhe is left with only three years of the four year contract awarded him by President Lt. Gen. Seretse Khama Ian Khama. He says he is still settling in the office and part of that being him visiting South Africa’s ex Public Protector, Thuli Madonsela.
“I had the opportunity to go to her office and see how they do their investigations. They are not terribly different from the way we are doing our investigations because the Ombudsman and the Public Protector are similar in a way, even though in South Africa they have a bigger mandate than we have in Botswana.”

He said he also managed to see how they interact with other governance institutions like human rights commission as all these institutions are established under chapter 9 of South African constitution. The institutions, he said, are specifically mandated to strengthen the constitutional democracy of South Africa. Makgonatsotlhe said that in South Africa, the Public Protector just investigate maladministration but also investigates corruption and issues of unethical conduct of leadership under the Executive Members Ethics Act which empowers him/her to investigate any unethical conduct done by any member of the executive.

“The thing with them is that they don’t have a Directorate on Corruption and Economic Crime (DCEC) like we have in Botswana; they only deal with a Public Protector.” While he said Botswana has a human rights commission housed under the office of the ombudsman, Makgonatsotlhe cautioned that in an ideal situation a human rights commission has to be a standalone, like in South Africa. “This has created problems in many countries because if you have many mandates its highly likely that one will suffer.”

The issue of his recommendation of Btv biasness

In relation to the report he recently released after carrying out investigations on behalf of Botswana National Front Vice President Prince Dibeela, he says he believes he carried the matter fairly and professionally in terms of the law. He justified his recommendation which stated that Btv was biased against opposition parties in favour of ruling Botswana Democratic Party saying his office investigates all complaints as long as the ombudsman has a jurisdiction on them.  “And we do that with no fear or favour. That is the job. I mean it must be done appropriately as we have been assigned to do.”

When asked if it is not likely that the political leadership may feel hard done by his recommendations, and maybe have a problem with it he said “then it is not our problem. It doesn’t bother me at all. For as long as my conscience is clear on the matter. I would have done what I was supposed to do.” The long serving Public Servants also emphasized that it gives logic that decisions or recommendations of the ombudsman should be binding so that the body is taken seriously.

 

“We should ensure that when it has taken the decision, those decisions are complied with; if it doesn’t it will be as if those decisions were never made. The office should be strengthened to have more meaning to Batswana and make an impact in the governance and administration of the country.”


He added: “The authorities can decide to comply or not as it stands. Like what I said before that’s where really the problem is, they are not forced to comply by the law.”

However he still believes that the ombudsman has moral authority. So for the fact that they have created the office, it is logical also that whatever the decision it comes with should be complied with or else that will have a negative effect on the governance of the country. He continued: “Notwithstanding, if there is no compliance, what should happen is that, the ombudsman should do a special report on that same matter which he has to submit to parliament to tell them I have done this, I came to this conclusion and I made this recommendations but there has been no compliance. Then it will be up to parliament to see what to do.”  

Makgonatsotlhe on DCEC, IEC, Auditor General, Parliament

Makgonatsotlhe also says he wants to see the strengthening of all governance institutions particularly Directorate on Corruption and Economic Crime (DCEC), Independent Electoral Commission (IEC), the Auditor General and Parliament.
He said these are institutions that to him are very critical to strengthening democracy and governance. “When we have those institutions in a way that spill off when things are not running properly the economy will grow because investors will come and they will be sure of their investments. The rule of law will flourish when proper governance is there. The investors want to go to a place which is very safe and properly run and they are sure that they are protected and their investments are also protected that is my parting shot,” he said.

Meanwhile Leader of opposition and Umbrella for Democratic Change (UDC) President Duma Boko has repeatedly criticized the Ombudsman together with DCEC, IEC, Directorate on Intelligence and Security Services (DISS) saying in their current form they are useless and therefore call for totally disbanding and overhauling that may be effected when his party takes office.

 

The office of the Ombudsman came into existence around December 1997 after the law establishing the office was promulgated in 1995 and later assented by the then President Sir Ketumile Masire who is now late. The late Lethebe Amos Maine was the country’s first ombudsman and the second was Ofentse Lepodise (also late) while the third was Festinah Bakwena, being the incumbent, Makgonatsotlhe is the fourth.

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Botswana Parliament Okays Financial Intelligence Bill

28th January 2022
Peggy Serame

The National Assembly recently passed the Financial Intelligence Bill, 2021 (Bill No. 34 of 2021) during an Emergency Parliament Meeting. The Bill was first published on 23rd December, 2021 by the Minister of Finance and Economic Development, Honourable Peggy Serame.

The Act aims to re-enact with amendments the Financial Intelligence Act; to continue the establishment of the Financial Intelligence Agency and to re-constitute the National Financial Intelligence Coordinating Committee as a high level committee; to provide for third parties to perform certain customer due diligence measures on behalf of specified parties; to enable the Financial Intelligence Agency to initiate an analysis of information based on information in its on possession or information received from other sources to establish a suspicious transaction, and for matters connected therewith and incidental thereto. The Financial Intelligence Bill has eight parts with a total of 63 clauses.

Serame highlighted that these laws are drawn because they are in line with international agreements the country has signed upon. Although implementation of the laws passed in parliament is a still a challenge. She urged public institutions to introspect if there are grievances within the community and deal with them. Emphasising that the perceptions people have about public servants and institutions are often based on a certain form of truth.

By way of background; the Financial Action Task Force (FATF) has 40 Recommendations which countries have to comply with in order to tackle money laundering, terrorist financing and the financing proliferation.

During 2017 assessment; Botswana was found to have serious strategic deficiencies in her anti money laundering and combating the financing of terrorism and proliferation framework. No recommendation was rated Compliant, 23 of the recommendations were non-compliant resulting in the country being grey listed by the FATF in 2018 and blacklisted by the European Union in 2020.

The country went right ahead into remedial actions towards being removed from the grey list, passing 25 pieces of legislation in 2018 and a further six in 2019. Resulting in the country being removed from the grey list in October 2021.

To address the deficiencies identified during assessments carried out by the Eastern and Southern Africa Anti Money Laundering Group (ESAAMLG) and Financial Action Task Force (FATF). There was a proposal to overhaul the Financial Intelligence Act and consequential amendments to several other laws.

The amendments of these laws aim to strengthen the Anti-Money laundering, countering Financing of Terrorism and proliferation efforts in Botswana and will also put the country in a good position during the next Mutual Evaluation in 2024.

In her presentation’ Peggy Serame enunciated that; “the procedure at ESAAMLG is that after a country has amended its legislation, they are allowed to request for rerating of FATF Recommendations that are still rated Non-Compliant and partially compliant. “

Adding that “the request for re-rating has to be made at least six months in advance of the ESAAMLG Task Force Plenary meetings. This means for Botswana, the request for re-rating can only be considered during the September meeting of ESAAMLG. In its request for re-rating, the country has to submit all other information supporting the request for re-rating to the ESAAMLG Secretariat.

This supporting information refers to relevant laws, regulations or other AML/CFT/CFP measures that are in force and effect. It is crucial that the FI Bill and others are enacted expeditiously for the country to submit a request for re-rating in February 2022.”

Member of Parliament for Selibe Phikwe West, Dithapelo Keorapetse has expressed concern over the Financial Intelligence Bill stating that; “the discussion of this bill is relevant to what we are trying to do in prevention of financial and economic crimes, that is physical and revenue crimes. However; if virtual assets have value and can be digitally traded; it means that physical and revenue crimes can be committed using cryptocurrencies.

ESAAMLAG and FATF are very clear that money laundering and terrorist financing exist with the purview of virtual assets. What needs to happen is public education surrounding virtual assets and the risks that come with them. Research ought to be done on the implications surrounding virtual assets, this in turn will help guide in drawing laws and regulations. Without established regulation and oversight, the virtual assets space will become the wild west of the financial industry.”

The re-enactment of the Financial Intelligence Act has caused consequential amendments to 13 other pieces of legislation which have already caused an uproar in the country, these are; Companies Act, Trust Property Control Act, Counter Terrorism Act, Criminal procedure and Evidence Act, Criminal Procedure and Evidence Act, Extradition Act, Mutual Assistance in Criminal Matters Act, Biological and Toxin Weapons (Prohibition) Act, Nuclear Weapons (Prohibition) Act, Precious and Semi-Precious Stones (Protection) Act and the Real estate Professionals Act.

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Sebetlela drills GCC Cllrs on reset agenda

28th January 2022
Boyce Sebetela

Chief of Staff at the Office of the President, Lephimotswe Boyce Sebetela has addressed Councillors of Gaborone City Council (G.C.C) on the Reset Agenda, at their retreat in Palapye.

A number of resource persons facilitated on different topics of importance. The retreat is said to have been aimed at appreciating the role of Councillors in governance, leadership development, promoting team work and sharing better ways on how they could improve service delivery to their constituents.

The retreat comes at a time when Councillors country wide demands clarity on their roles and responsibilities to their electorates, Sebetlela emphasized the need for G.C.C Councillors, as other leaders to board-in the drive of reset agenda. Noting that, it is people-centric. It is said at the meeting Sebetela explained to councillors that Reset agenda, should be understood, as an action plan that seeks primarily, to ameliorate the status-quo in Botswana. Further imploring the councillors to link their priorities with those of the government.

Sebetlela whose key responsibility is to direct and oversee implementation of national priorities, in alignment with political pronouncements made by President Masisi, reportedly told Councillors that they are an important stakeholders in this reform. He further noted that, the rest agenda is nothing short of Batswana’s needs and desires. Therefore as leaders, they should be cognizant of the priorities set by their own government.

Other resource persons were from the Ministry of Local Government and Rural Development and Botswana National Productivity Centre (BNPC).

For his part, Boseja Ward, Block 6 and Block 7 Councillor Khumo Sebereko applauded and revealed the significance of this retreat, noting that it was long overdue. “This is of utmost importance for community leaders, as we get time to imbibe knowledge at each other’s knee” he said.  He further explained that they get to assess their own productivity versus efficiency on public service which really help them improve as public servants.

On the other hand, G.C.C Town Clerk, Lebuile Israel told Weekend Post that prior to the retreat, they had a special full council in Gaborone. The special full council was characterized by consultation of different Community Constituency Plans. “That was basically to identify real issues on the ground, which at Ministerial level culminates into National Key issues that guides the direction of money allotted to the Council for the coming financial year” he said. He explained that, this council ensures that their Community plans are in sync with Urban Development Plan 5 (UDP 5) and National Development Plan 12 (NDP 12).

The alignment of these Community plans with both UDP 5 and NDP 12 puts each constituency in a good position to be taken to form part of G.C.C Project Memorandum. He further explained that, projects proposed by Councillors sometimes get to be relegated to least critical projects by the order of importance or urgency. “Over the years there weren’t many projects, relegated into peripheral categories or rejected by the Council for not being in sync with either of UDP 5 or NDP 12”.

When closing Sebetlela said Botswana’s ability and potential to transform rests incumbent upon each citizen’s effort particularly those in leadership. Noting that, implementation of priorities put forth by the reset agenda requires collaborative effort.

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Botswana records rise in corruption – Report

28th January 2022
President Masisi

The 2021 Corruption Perceptions Index (CPI) released by Transparency International has shown that corruption levels remain at a standstill worldwide while it is on the rise in Sub Saharan Africa.

The results at a glance; The Corruption Perceptions Index (CPI) ranks of countries around the world, based on how corrupt their public sectors are perceived to be. The results are given on a scale of 0 to 100, where 0 is highly corrupt and 100 is very clean. This year’s CPI paints a grim picture of the state of corruption worldwide.

According to the report; this year the global average remains unchanged for the tenth year in a row, at just 43 out of a possible 100 points. Despite multiple commitments, 131 countries have made no significant progress against corruption in the last decade. More than two-thirds of countries score below 50 indicating that they have serious corruption problems, while 27 countries are at their lowest score ever.

And despite some progress, nearly half of all countries have been stagnant on the CPI for almost a decade. These countries have failed to move the needle in any significant way to improve their score and combat public sector corruption.”

Western Europe and European Union are the highest scoring region with 66 points.
The top countries are Denmark, Finland and New Zealand, each with a score of 88. Norway, Singapore, Sweden, Switzerland, the Netherlands, Luxembourg and Germany complete the top 10.

49 countries were assessed in the Sub Saharan African region. With an average score of 33, Sub Saharan Africa is the lowest performing region in the CPI, showing little improvement from previous years and underscoring a need for urgent action. The report puts forth the concern that the gains made by top scorers are overshadowed by the region’s poor performance. This reinforces the urgent need for African governments to implement existing anticorruption commitments if they are to alleviate the devastating effect of corruption on millions of citizens living in extreme poverty.

With a score of 66, Seychelles consistently earns top marks in the region. Botswana is also regarded as a top scorer in the region with a score of 60/100 and a domestic score 55/100. Bottom of the index are Somalia with a score of 12 and South Sudan coming in with 11.

“Although Botswana is regarded a top performer. It has hit a historic low in 2021, recording a significant 10 point decline from a score of 65 in 2012. The result corroborates the findings of Transparency International’s 2019 Global Corruption Barometer survey, which showed that most people in Botswana thought corruption had increased. Concerns over impunity such as in the case of the alleged looting of the National Petroleum Fund which implicated senior government officials-underscore the need to increase accountability for high-level corruption in the continent’s oldest” Revealed the report.

The research also shows that corruption is more pervasive in countries least equipped to handle the Covid-19 pandemic and other global crises. The global pandemic has been used in many countries as an excuse to curtail basic freedoms.

Local media in Botswana reported that the Directorate on Corruption and Economic Crime (DCEC) recorded 47 cases of corruption in relation to COVID-19 tendering processes. With 32 from the Gaborone region; 12 from Greater Francistown region and 3 in Maun region.

In regards to case backlog, the directorate had a backlog of 182 cases pending with the Directorate of Public Prosecutions (DPP) , this is in addition to cases that were still under investigation and corruption allegation reports that had been received. The corruption allegations included 69 COVID-19 reports which were received between April 2020 and May 2021. Out of the 69 cases, 27 were being investigated while most of the remaining cases were referred to the different ministries.

Generally, Bribery continues to impede access to basic services. In 2019, the Global corruption Barometer – Africa revealed that more than one out of four people or approximately 130 million citizens in 35 African countries surveyed paid a bribe to access public services like health care.

Unless these corruption challenges are addressed, many countries in sub Saharan Africa risk missing their sustainable development goal targets by 2030. Transparency International calls on governments to act on their anti-corruption and human rights commitments and for people across the globe to come together in demanding change.

Chief Executive Officer of Transparency International, highlighted that Daniel Eriksson; “In authoritarian context where control over government, business and the media rests with a few, social movements remain the last check on power. It is the power held by teachers, shopkeepers, students and ordinary people from all walks of life that will ultimately deliver accountability.”

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