Row has erupted in the country (Botswana) when, on the 26th of September 2015, His Excellency ,the President Lt Gen Ian Khama, suspended a quartet of Judges on allegations of having concurrently occupied government houses and undeservedly received accommodation allowances for a considerable period of time.
Suggestions from some quarters are that there is need to make arrangements to pay back the money as the matter is purely administrative and a mere blunder on the part of the staff at the department of Administration Of Justice. In that sense, to borrow Shakespeare‘s words, the judges are more sinned against than sinning’ (‘King Lear’ Act 5 scene 2 lines 57 -60).
Begging to differ, other people are of the opinion that this anomaly is nothing but a tip of the proverbial iceberg of what is happening behind the scenes within the judiciary and therefore contend that nothing short of a deterrent measure will right this wrong.
But what does the constitution say about that development?
Section 97 of the Botswana Constitution provides for grounds and procedures to be followed religiously for the removal of judges of the High Court
‘A judge of the High Court may (and not shall) be removed from office only for inability to perform the functions of his or her office (whether arising from infirmity of the body or mind or any other cause or for misbehavior, and shall not be so removed except in accordance with the provisions of this section’ (subsection 2) and subsection 3 reads: ‘If the President considers that the question of removing a judge of the High Court under this section ought to be investigated then:
(a) He or she shall appoint a tribunal which shall consist of a Chairman and not less than two other members, who hold or have held high judicial office.
(b) the tribunal shall enquire into the matter and report on the facts thereof to the President and advise the President whether the judge ought to be removed from office under this section for inability as aforesaid or for misbehavior’ Subsection 4 provides that if the tribunal advises the President to remove the judge concerned he (the President) shall dismiss that judge.
As can be seen, the wording of the constitution is quite clear but what differs is the interpretation and that is the center of the debate. For example, what is misbehavior? and how can it be quantified? Unfortunately, the constitution does not have the interpretation section to define the word and it will be up to the Judges, and not President, to decide the meaning, using their own viewstandards given the value-laden or normative nature of the concept. But why this panic given that section 10 of our constitution presumes everyone innocent till proven guilty?.
This writer‘s interest liest not in the debate on whether or not His Excellency has acted ultra-vires the Constitution but on: who really makes the law, the politician or judge? Are judges translators, interpreters or mis-interpreters of the law?
Before addressing these emotive questions we need to refresh our minds by getting into the bible and then link our discoveries to the topic in question.
When Jesus Christ was rejected at Nazareth,’ he could not do might works – because of people ‘s unbelief” This is Mark ,the evangelist, ‘s version (Mark 6:5).After having noted that this presentation was not only unintelligible and absurd but was bound to leave a sour taste in the mouths of the early Christian community, Matthew sugar-coated it to read ‘— He could not do many might works – ‘(Matthew 13:58).
It is in this context that Matthew is regarded a modified version of Mark whose language was rough and ready and riddled with grammatical slips and peculiar construction of various description .In the process, he ended up confusing both the reader and himself due to his failure to put himself across effectively.
As can be seen, Matthew ended up totally changing the complexion of Mark’s story through the insertion of the word ‘many’. In a related development ,Mark portrays James and John ,the sons of Zebedee ,as very ambitious people who went to Jesus demanding for the lion ‘s share in the kingdom of God (Mark 10:35-45)but Matthew exonerates them by saying it was their mother who did so(Matthew 20:20-28).
The two separate occasions by Mark reflect the weak or dark side of both our Lord, Jesus Christ Himself, and two of his inner circle disciples, the former succumbing to anger while the latter are over-ambitious. No doubt, at the back of his mind, Mark did not intend to bring about this result but due to lack of education and stunted intellectual and linguistic prowess, he unwittingly produced that effect.
What makes the situation worse is that the meanings of words are neither fixed nor final but vary according to the context in terms of time, culture etc. Just like the concepts deviance and beauty, which lie in the eyes of the beholder, the meaning of a word is influenceddetermined by what the reader would want it to mean.
I am sure that those into socio-linguistics will support my contention that words do not have meanings but we give meanings to words and words are just symbols to represent phenomena. Also, words are a social convention which we use to express our thoughts. For example, a table could be something else but we call it such for convenience‘s sake.
This equally applies for what we write.As humans continue indulging in a social intercourse some words become obsolete while new ones come into picture and this is also influenced by the ever-changing socio-political ,economic and environmental situation obtaining at any given time.
Do you still remember ,for instance, the archaic Shakespearean or Chaucer ‘s English?Also, do you remember how those with the poetic license can easily combine and recombine ,in a very unique way, ordinary words,into new expressions ,in as much the same way as man can combine and recombine objects into new devices?
The above scenario compares very well with the cor-relationship between the legislators and thejudges and, how through statutory interpretation, judges totally stray away from what Parliament meant, by creating sense into the legislature’s nonsense, and this leaves us doubting who between the two arms of government, the legislature or the judiciary ,is the supreme law making body. This task naturally leads us to the doctrine of separation of powers which we briefly delve into.
The term Separation of powers, which was coined by Montesquieu, the French philosopher, is the formal division of the 3 arms of government in the following manner: structure, function and personnel. The issue of checks and balances is also an integral aspect of this concept. With regards to structure, we mean the 3 arms exist as distinct entities and not one.
As an illustration, Parliament (legislature) is distinct from the Executive and the Judiciary. In terms of personnel, a member of one arm of government should not double cross it with the other arms as in being a Member of Parliament, a judge and a member of the Executive at the same time.
Their functions (duties) are markedly different also: Parliament makes the law, which we call a statute or Act of Parliament such as the Employment Act, the Public Service Act or the Penal Code; the Judiciary interprets that law so that it becomes crystal clear while the Executive applies and enforces the law.
This concept ensures that there is specialization and specialization brings about operational efficiency and effectiveness. Again, following the adage power tends to corrupt and absolute power corrupts absolutely, we are trying to guard against a situation where power is concentrated in one bodyarm as it will be subject to abuse.
By checks and balances we mean one arm should act as a monitoring mechanism to check the abuse of power by the other arm. In political science we use the concept trias politicas doctrine for separation of powers and its antonym is fusion of powers.
The concept ‘fusion of powers’ is designed in such a way that the 3 arms do everything jointly as was the case with monarchs during primitive times: the king was lawmaker (legislature) ,interpreter (judiciary)and enforcer(executive).This was the also the case with Moses(Deuteronomy 16:18,numbers 18:13)
Without getting into the heart of legalese, the law comes into being through the initiative of the politicians in both the legislature and Executive. Meaning through the hands –on- approach ,the Executive arm eg the Ministry of Education initiates a Bill (proposed law)governing that department and it is taken to the August House for debating .If it succeeds the Bill becomes law and this becomes so after the Presidential Assent and subsequent publication in the Government Gazette.
Of course, the Attorney General, who is the principal legal adviser to the Legislature, also plays a role since in most jurisdictions he is the ex-officio Member of Parliament. We also have the Parliamentary legal committee which, in my view, must consist of people with legal minds so that some loopholes on the Bill are detected early and rectified before it graduates into law. As a monitoring mechanism again, the President, who is the embodiment of the constitution would not assent to a Bill that is ultra-vires the constitution. On that basis, one can safely conclude that it is Parliament, and not the judiciary, that makes the law.
When members of Parliament make the law it is not in their individual capacity but on behalf of the electorate and, as such, that law must prevail, even if unreasonable? This is what democracy is all about! But is it really legislators who make the law?
When a case has found its way in court, the courts have the duty to apply that law in concrete situations and this is achieved through the interpretation of statutes. In this exercise the court will be trying to bring to light the intention of Parliament.
What is interpretation, as opposed to translation? To interpret is to form an opinion from given facts or deduce the implication of what someone says. Translation, on the other hand, refers to merely reducing or converting one language into another eg from Setswana to English.
For example,preachers in Church are involved in interpretation of the word and people usually get locked up in disputes over an interpretation of the same words in the bible.(At times ,however, translation is involved if the bible has been written in a foreign language).
In as much the same way, judges are always arguing over the interpretation, and not translation, of a statutory provision, as we saw above. On that basis ,it is actually a misnomer, if not a mischievous misrepresentation of the facts, to refer the court personnel in charge of converting one language into another to as court interpreters but, instead, translators.
If they were interpreters what would be the duty of the court? It is for the same reason that even witnesses are not allowed to interpret but simply state the facts as they are without forming an opinion!Judges give meanings to written words presented to them by Parliament through an Act.
Unfortunately the authors of that document are mostly laypersons who do not have the slightest idea about the characteristics of a good law and are not even available in court to clarify what they meant. In the light of a lapse of time all the authors of that statute might be dead ,just like Shakespeare must be turning in his grave and mourning as he hears in his spiritual ear mis-readers or mis-interpreters of his writings.
Tragic as it sounds, he cannot do anything to change it. Tough luck again, because in any society that lays claim to the espousal of democracy, everyone, and judges included, is entitled to his own opinion, whether bad or good. As noted above, judges are not translators but interpreters of the law.
In the process of interpreting statutes, judges employ various tools or aids, both intrinsic and extrinsic. Intrinsic ones are those within the statute itself such as the long and short title, headings and the preamble. Those outside the text are the extrinsic aids and they include the historical background surrounding that statute eg it was crafted against the background of Apartheid.
This information could be drawn from textbooks and other pieces of literature. Dictionaries could also be referred to and even the Hansard. Judges also make use of cannons, maximums, and presumptions and, of course, the rules of interpretation which are the Literal, Golden and Mischief rules. Another guiding principle is the purpose of the Legislature.
In a word, this article defined the concepts separation of powers, translation and interpretation of statutes and concluded that it is, on the face of it, Parliament which is the supreme law making body. We also realized that it is only the court(judges) which has the powers to interpret ,and not translate, the law since we have court personnel that is involved in the translation. We managed to browse through possible reasons why the interpreter (judge) might give words a different meaning from what a writer (Parliament) intended.
Next week we shall get into the rules of interpretation and see how judges depart from what Parliament intended and, in the process, make their own laws ,laws never envisaged by the legislature ,or misinterpret the law either deliberately or by accident. In the oncoming epistle, again, we shall also try to map the best way forward .Bie .See part 2 of this discussion next week
“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
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.
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.