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JUDICIARY UNDER SIEGE: THE BEGINNING OF THE END OF THE RULE OF LAW

Today we see the murdering and mutilation of our constitution; stakeholders in the administration of justice (AOJ) persecuted, decapitated, crucified for their faith in our constitutional values and ethos. All this is happening under our very eyes and often with the complicit silence of key stakeholders in our society. Many in our society have adopted the hear no evil and see no evil attitude blinded by the traditional believe that the judiciary is sacred. The Judiciary may be held in high esteem but it is certainly not immune from criticism.

In the last eight (8) years or so stakeholders in the administration of justice, in particular the Law Society of Botswana (LSB) has decried the continued onslaught on the independence of the judiciary. In the last twelve (12) months the lines between the judiciary and executive have become so blurred that in fact the former is now a department of the Executive under the Ministry of Defence, Justice and Security (MDJS).

Whereas the Judicature constitutionally is a separate organ of the state, administratively, financially, and in terms of personnel and staffing, it falls under the MDJS as the parent ministry. Furthermore it relies on the parent ministry for its budget allocations both for the recurrent and developmental budget.

The statement by the parent Ministry calling to order the Chairperson of the LSB over remarks attributed to him on the composition of the Court of Appeal (CoA) reaffirms the dilution of the concept of separation of powers as a cornerstone of our constitutional imperatives. The Chairperson had made, and quite correctly so in our view, reference to three critical aspects of our demographics that must be considered in the appointment of judges to the CoA, viz gender; age and race. There is no need to be apologetic about it. In our considered view this is what MDJS must deal with.

The executive must understand that LSB is not a parastatal organ serving the interests and caprices of the Executive. It is a professional body well equipped to engage other stakeholders on the administration and dispensation of Justice. It must do so within the constitutionally permissible space of freedom of expression without policing from the Executive. Its members, including its Chairperson, have the right to freely express its position on matters of national importance without censorship.

Our body polity of constitutional democracy recognizes the importance of robust and fearless debate which ought to be protected at all costs. MDJS has no superiority over other stakeholders. It is critical that as a nation we engage in a serious introspection on why in half a century of self-rule our justice system must be premised on continued importation of justice, and even more worryingly, with judicial appointments to the CoA done under the cover of darkness as an old boys club.


What is also clear from the MDJS statement is that the Executive has now turned itself into the Judiciary's mouthpiece. This is certainly done with the complicity or consent (silence) of the judiciary under the leadership of Chief Justice Maruping Dibotelo. Since when has MDJS issued statements on behalf of the judiciary and on matters such as the one under discussion?

The Registrar and Master of the High Court is the designated administrative officer responsible for statements. This apparent arranged marriage of convenience between the Executive and Judiciary erodes the little public confidence left of our ailing judiciary. It speaks to a deliberate and desired joint commitment to kill the judiciary.
The Executive is over-sentimental and irritable. In the words of J.C Ryle they are like a man who would spend gun-powder to scare birds from his yard when he could clap his hands and they leave. Their aggression and ultimatum is disproportionate to the statement attributable to LSB Chairperson and the import thereof; unless that is indicative of a long-standing and rooted feud. Still, a government must not jump at a chance to settle scores with its own people.

The LSB and MDJS are statutorily and constitutionally obliged to work together. By way of illustration the LSB representative is a member of the Judicial Service Commission (JSC). The Registrar and Master of the High Court, as a public servant of the MDJS continuously engages private attorneys to do pro deo work for accused persons in murder cases. Must these collaborative relationships provided for both in the text of our Constitution, the Rules of the High Court and the High Court Act suddenly die because the Ministry is irritable and by extension the members of the judiciary feel "embarrassed" and are too timid to speak for themselves and can only find shelter under the Executive.

There are other roles of the MDJS and LSB that are central to the operationalisation of the Legal Practitioners Act and regulation of the legal profession. This is a public duty by the line Ministry which is for the public good and benefit.
The MDJS must withdraw its threat forthwith and the Judiciary should distance itself from such threats and the apparent refuge conveniently being provided by the Ministry. It is worth noting that the Ministry is divisive and very selective in its address of issues relating to the judiciary. Recently, when judges petitioned the JSC accusing the CJ of racism no statement was issued nor an attempt made to address, at the very least, investigate such a serious allegation. The matter was swept under the carpet and judges slammed with suspensions. Today, an unequivocal affirmation is made by the JSC that the CJ is the darling of the Executive worthy of protection at the expense of an entire institution, the Judicature.

Kesitegile Gobotswang (PhD) is the Deputy Leader, Botswana Congress Party

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Opinions

Can we cure ourselves from the cancer of corruption?

28th October 2020
DCEC DIRECTOR: Tymon Katholo

Bokani Lisa Motsu

“One of the saddest lessons of history is this: If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle. We’re no longer interested in finding out the truth. The bamboozle has captured us. It’s simply too painful to acknowledge, even to ourselves, that we’ve been taken. Once you give a charlatan power over you, you almost never get it back.” Carl Sagan

Corruption is a heavy price to pay. The clean ones pay and suffer at the mercy of people who cannot have enough. They always want to eat and eat so selfishly like a bunch of ugly masked shrews. I hope God forgives me for ridiculing his creatures, but that mammal is so greedy. But corruption is not the new kid on the block, because it has always been everywhere.

This of course begs the question, why that is so? The common answer was and still is – abuse and misuse of power by those in power and weak institutions, disempowered to control the leaders. In 1996, the then President of The World Bank, James D. Wolfensohn named the ‘C-Word’ for the first time during an annual meeting of the Bretton Woods Institutions. A global fight against corruption started. Transparency International began its work. Internal and external audits mushroomed; commissions of inquiry followed and ever convoluted public tender procedures have become a bureaucratic nightmare to the private sector, trying to fight red tape.

The result is sobering corruption today is worse than it was 25 years ago. There is no denying that strong institutions help, but how does it come that in the annual Transparency International Ranking the same group of countries tend to be on the top while another group of countries, many African among them, tend to be on the bottom? Before one jumps to simple and seductive conclusions let us step back a moment.

Wolfensohn called corruption a cancer that destroys economies like a cancer destroys a body. A cancer is, simplified, good cells in a body gone bad, taking control of more and more good cells until the entire body is contaminated and eventually dies. So, let us look at the good cells of society first: they are family ties, clan and tribe affiliation, group cohesion, loyalty, empathy, reciprocity.

Most ordinary people like the reader of these lines or myself would claim to share such values. Once we ordinary people must make decisions, these good cells kick in: why should I hire a Mrs. Unknown, if I can hire my niece whose strengths and weaknesses I know? If I hire the niece, she will owe me and support my objectives.

Why should I purchase office furniture from that unknown company if I know that my friend’s business has good quality stuff? If I buy from him, he will make an extra effort to deliver his best and provide quality after sales service? So, why go through a convoluted tender process with uncertain outcome? In the unlikely case my friend does not perform as expected, I have many informal means to make him deliver, rather than going through a lengthy legal proceeding?

This sounds like common sense and natural and our private lives do work mostly that way and mostly quite well.

The problem is scale. Scale of power, scale of potential gains, scale of temptations, scale of risk. And who among us could throw the first stone were we in positions of power and claim not to succumb to the temptations of scale? Like in a body, cancer cells start growing out of proportion.

So, before we call out for new leaders – experience shows they are rarely better than the old ones – we need to look at ourselves first. But how easy is that? If I were the niece who gets the job through nepotism, why should I be overly critical? If I got a big furniture contract from a friend, why should I spill the beans? What right do I have to assume that, if I were a president or a minister or a corporate chief procurement officer I would not be tempted?

This is where we need to learn. What is useful, quick, efficient, and effective within a family or within a clan or a small community can become counterproductive and costly and destructive at larger corporate or national scale. Our empathy with small scale reciprocity easily permeates into complacency and complicity with large scale corruption and into an acquiescence with weak institutions to control it.

Our institutions can only be as strong as we wish them to be.

I was probably around ten years old and have always been that keen enthusiastic child that also liked to sing the favourite line of, ‘the world will become a better place.’  I would literally stand in front of a mirror and use my mom’s torch as a mic and sing along Michael Jackson’s hit song, ‘We are the world.’

Despite my horrible voice, I still believed in the message.  Few years later, my annoyance towards the world’s corrupt system wonders whether I was just too naïve. Few years later and I am still in doubt so as to whether I should go on blabbing that same old boring line. ‘The world is going to be a better place.’ The question is, when?

The answer is – as always: now.

This is pessimistic if not fatalistic – I challenge Sagan’s outlook with a paraphrased adage of unknown origin: Some people can be bamboozled all of the time, all people can be bamboozled some of the time, but never will all people be bamboozled all of the time.

We, the people are the only ones who can heal society from the cancer of corruption. We need to understand the temptation of scale and address it. We need to stop seeing ourselves just a victim of a disease that sleeps in all of us. We need to give power to the institutions that we have put in place to control corruption: parliaments, separation of power, the press, the ballot box. And sometimes we need to say as a niece – no, I do not want that job as a favour, I want it because I have proven to be better than other contenders.

It is going to be a struggle, because it will mean sacrifices, but sacrifices that we have chosen, not those imposed on us.

Let us start today.

*Bokani Lisa Motsu is a student at University of Botswana

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Opinions

Accounting Officers are out of touch with reality

19th October 2020

Parliament, the second arm of State through its parliamentary committees are one of Botswana’s most powerful mechanisms to ensure that government is held accountable at all times. The Accounting Officers are mostly Permanent Secretaries across government Ministries and Chief Executive Officers, Director Generals, Managing Directors of parastatals, state owned enterprises and Civil Society.

So parliament plays its oversight authority via the legislators sitting on a parliamentary committee and Accounting Officers sitting in the hot chair.  When left with no proper checks and balances, the Executive is prone to abuse the arrangement and so systematic oversight of the executive is usually carried out by parliamentary committees.  They track the work of various government departments and ministries, and conduct scrutiny into important aspects of their policy, direction and administration.

It is not rocket science that effective oversight requires that committees be totally independent and able to set their own agendas and have the power to summon ministers and top civil servants to appear and answer questions. Naturally, Accounting Officers are the highest ranking officials in the government hierarchy apart from cabinet Ministers and as such wield much power and influence in the performance of government.  To illustrate further, government performance is largely owed to the strategic and policy direction of top technocrats in various Ministries.

It is disheartening to point out that the recent parliament committees — as has been the case all over the years — has laid bare the incompetency, inadequacy and ineptitude of people bestowed with great responsibilities in public offices. To say that they are ineffective and inefficient sounds as an understatement. Some appear useless and hopeless when it comes to running the government despite the huge responsibility they possess.

If we were uncertain about the degree at which the Accounting Officers are incompetent, the ongoing parliament committees provide a glaring answer.  It is not an exaggeration to say that ordinary people on the streets have been held ransom by these technocrats who enjoy their air conditioned offices and relish being chauffeured around in luxurious BX SUV’s while the rest of the citizenry continue to suffer. Because of such high life the Accounting Officers seem to have, with time, they have gotten out of touch with the people they are supposed to serve.

An example; when appearing before the recent Public Accounts Committee (PAC), Office of the President Permanent Secretary, Thuso Ramodimoosi, looked reluctant to admit misuse of public funds. Although it is clear funds were misused, he looked unbothered when committee members grilled him over the P80 million Orapa House building that has since morphed into a white elephant for close to 10 successive years. To him, it seems it did not matter much and PAC members were worried for nothing.

On a separate day, another Accounting officer, Director of Public Service Management (DPSM), Naledi Mosalakatane, was not shy to reveal to PAC upon cross-examination that there exist more than 6 000 vacancies in government. Whatever reasons she gave as an excuse, they were not convincing and the committee looked sceptical too. She was faltering and seemed not to have a sense of urgency over the matter no matter how critical it is to the populace.

Botswana’s unemployment rate hoovers around 18 percent in a country where majority of the population is the youth, and the most affected by unemployment. It is still unclear why DPSM could underplay such a critical matter that may threaten the peace and stability of the country.
Accounting Officers clearly appear out of touch with the reality out there – if the PAC examinations are anything to go by.

Ideally the DPSM Director could be dropping the vacancy post digits while sourcing funds and setting timelines for the spaces to be filled as a matter of urgency so that the citizens get employed to feed their families and get out of unemployment and poverty ravaging the country.
The country should thank parliamentary committees such as PAC to expose these abnormalities and the behaviour of our leaders when in public office. How can a full Accounting Officer downplay the magnitude of the landless problem in Botswana and fail to come with direct solutions tailor made to provide Batswana with the land they desperately need?

Land is a life and death matter for some citizens, as we would know.

When Bonolo Khumotaka, the Accounting Officer in the Ministry of Land Management, Water and Sanitation Services, whom as a top official probably with a lucrative pay too appears to be lacking sense of urgency as she is failing on her key mandate of working around the clock to award the citizens with land especially those who need it most like the marginalised.  If government purports they need P94 billion to service land to address the land crisis what is plan B for government? Are we going to accept it the way it is?

Government should wake up from its slumber and intervene to avoid the 30 years unnecessary waiting period in State land and 13 years in Tribal land.  Accounting Officers are custodians of government policy, they should ensure it is effective and serve its purpose. What we have been doing over the years, has proved that it is not effective, and clearly there is a need for change of direction.

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Is it possible to make people part of your business resilience planning after the State of Public Emergency?

12th October 2020

THABO MAJOLA

His Excellency Dr Mokgweetsi EK Masisi, the President of the Republic of Botswana found it appropriate to invoke Section 17 (1) of the Constitution of the Republic of Botswana, using the powers vested in him to declare a State of Public Emergency starting from the 2nd April 2020 at midnight.

The constitutional provision under Section 17 (2b) only provided that such a declaration could be up to a maximum of 21 days. His Excellency further invoked Section 93 (1) to convene an extra- ordinary meeting of Parliament to have the opportunity to consult members of parliament on measures that have been put in place to address the spread and transmission of the virus. At this meeting Members of Parliament passed a resolution on the legal instruments and regulations governing the period of the state of emergency, and extended its duration by six (6) months.

The passing of the State of Emergency is considered as a very crucial step in fighting the near apocalyptic potential of the Novel COVID-19 virus. One of the interesting initiatives that was developed and extended to the business community was a 3-month wage subsidy that came with a condition that no businesses would retrench for the duration of the State of Public Emergency. This has potentially saved many people’s jobs as most companies would have been extremely quick to reduce expenses by downsizing. Self-preservation as some would call it.

Most organisations would have tried to reduce costs by letting go of people, retreated and tried their best to live long enough to fight another day. In my view there is silver lining that we need to look at and consider. The fact that organisations are not allowed to retrench has forced certain companies to look at the people with a long-term view.

Most leaders have probably had to wonder how they are going to ensure that their people are resilient. Do they have team members who innovate and add value to the organisation during these testing times? Do they even have resilient people or are they just waiting for the inevitable end? Can they really train people and make them resilient? How can your team members be part of your recovery plan? What can they do to avoid losing the capabilities they need to operate meaningfully for the duration of the State of Public Emergency and beyond?

The above questions have forced companies to reimagine the future of work. The truth is that no organisation can operate to its full potential without resilient people. In the normal business cycle, new teams come on board; new business streams open, operations or production sites launch or close; new markets develop, and technology is introduced. All of this provides fresh opportunities – and risks.

The best analogy I have seen of people-focused resilience planning reframes employees as your organisation’s immune system, ready and prepared to anticipate risks and ensure they can tackle challenges, fend off illness and bounce back more quickly.  So, how do you supercharge your organizational immune system to become resilient?

COVID-19 has helped many organisations realize they were not as prepared as they believed themselves to be. Now is the time to take stock and reset for the future. All the strategies and plans prior to COVID-19 arriving in Botswana need to be thrown out of the window and you need to develop a new plan today. There is no room for tweaking or reframing. Botswana has been disrupted and we need to accept and embrace the change. What we initially anticipated as a disease that would take a short term is turning out to be something we are going to have to live with for a much longer time. It is going to be a marathon and therefore businesses need to have a plan to complete this marathon.

Start planning. Planning for change can help reduce employee stress, anxiety, and overall fear, boosting the confidence of staff and stakeholders. Think about conducting and then regularly refreshing a strategic business impact analysis, look at your employee engagement scores, dig into your customer metrics and explore the way people work alongside your behaviours and culture. This research will help to identify what you really want to protect, the risks that you need to plan for and what you need to survive during disruption. Don’t forget to ask your team members for their input. In many cases they are closest to critical business areas and already have ideas to make processes and systems more robust.

Revisit your organisational purpose. Purpose, values and principles are powerful tools. By putting your organisation’s purpose and values front and center, you provide clear decision-making guidelines for yourself and your organisation. There are very tough and interesting decisions to make which have to be made fast; so having guiding principles on which the business believes in will help and assist all decision makers with sanity checking the choices that are in front of them. One noticeable characteristic of companies that adapt well during change is that they have a strong sense of identity. Leaders and employees have a shared sense of purpose and a common performance culture; they know what the company stands for beyond shareholder value and how to get things done right.

Revisit your purpose and values. Understand if they have been internalised and are proving useful. If so, find ways to increase their use. If not, adapt them as necessities, to help inspire and guide people while immunizing yourself against future disruption. Design your employee experience. The most resilient, adaptive and high performing companies are made up of people who know each other, like each other, and support each other.

Adaptability requires us to teach other, speak up and discuss problems, and have a collective sense of belonging. Listening to your team members is a powerful and disruptive thing to do. It has the potential to transform the way you manage your organisation. Enlisting employees to help shape employee experience, motivates better performance, increases employee retention and helps you spot issues and risks sooner. More importantly, it gives employees a voice so you can get active and constructive suggestions to make your business more robust by adopting an inclusive approach.

Leaders need to show they care. If you want to build resilience, you must build on a basis of trust. And this means leaders should listen, care, and respond. It’s time to build the entire business model around trust and empathy. Many of the employees will be working under extreme pressure due to the looming question around what will happen when companies have to retrench. As a leader of a company transparency and open communication are the most critical aspects that need to be illustrated.

Take your team member into confidence because if you do have to go through the dreaded excise of retrenchment you have to remember that those people the company retains will judge you based on the process you follow. If you illustrate that the business or organization has no regard for loyalty and commitment, they will never commit to the long-term plans of the organisation which will leave you worse off in the end. Its an absolutely delicate balance but it must all be done in good faith. Hopefully, your organization will avoid this!

This is the best time to revisit your identify and train your people to encourage qualities that build strong, empathetic leadership; self-awareness and control, communication, kindness and psychological safety.  Resilience is the glue that binds functional silos and integrates partners, improves communications, helps you prepare, listen and understand. Most importantly, people-focused resilience helps individuals and teams to think collectively and with empathy – helping you respond and recover faster.

Article written by Thabo Majola, a brand communications expert with a wealth of experience in the field and is Managing Director of Incepta Communications.

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