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Were Specially Elected MPs elected constitutionally?

Ndulamo Anthony Morima
EAGLE WATCH


Section 71 of the Constitution of Botswana provides that “The Speaker(of the National Assembly), before assuming the duties of his (or her) office, and every Member of the National Assembly before taking his (or her)  seat therein, shall take and subscribe before the Assembly the oath of allegiance”.  In my view, it is only after taking and subscribing to the oath of allegiance that members of the National Assembly can conduct proceedings, including voting for or against anybody or anything, in the National Assembly.

Section 4(2) of the Schedule to the Constitution (Election of Specially Elected Members of the National Assembly), in terms of Section 58(2) (b) of the Constitution, provides that “… any Elected Member of the Assembly… shall thereupon be entitled to nominate four candidates for election in the case of a general election and one candidate for election in the case of a by-election.

Section 4(3) of the Schedule to the Constitution (Election of Specially Elected Members of the National Assembly), in terms of Section 58(2) (b) of the Constitution, provides that “… each Elected Member of the Assembly shall be entitled to vote -in the case of a general election, for four candidates; and in the case of a by-election, for one candidate.

It is submitted that it is only after a Member of the National Assembly has taken and subscribed to the oath of allegiance that he or she can, in the words of section 71 supra, take his or her seat in the National Assembly and lawfully discharge his or her duties in terms of the Constitution and/or any applicable law. No wonder our constitutional drafters made a provision that it is only after members of the National Assembly have taken and subscribed to the oath of allegiance that the first sitting of the National Assembly can be held.  Purporting to exercise the function of an Elected Member of the Assembly before taking and subscribing to the oath of allegiance is, therefore, a nullity at law since such person lacks the competence which can only be endowed by the oath of allegiance.

Taking and subscribing to the oath of allegiance, it is submitted, is not a mere formality, but a substantive and constitutional imperative before which and/or without which a person, though having won the general election, can still not qualify as an Elected Member of the Assembly. For instance, I submit that if after winning a general election, it comes to light that a person lacked the qualifications to be elected to the National Assembly and/or is not qualified to be a member of the National Assembly in terms of sections 61 and 62 of the Constitution respectively, such person will not be qualified to take and subscribe to the oath of allegiance. Consequently, such a person cannot be a member of the National Assembly.

I also posit that if after winning a general election, a person, without any reasonable and justifiable excuse, refuses and/or is unable to take and subscribe to the oath of allegiance such a person cannot be a member of the National Assembly. The same principle applies for the President. If after the Chief Justice declares him President after his or her political party wins more than fifty percent of the seats in Parliament he or she, without reasonable and/or justifiable cause, neglects, fails and/or refuses to take and subscribe such oath as may be prescribed by Parliament in terms of section 37 of the Constitution, he or she will be incompetent to assume the Office of President and shall consequently not enter upon the duties of that office.  

Similarly, if the Vice President, a Minister or an Assistant Minister, without reasonable and/or justifiable cause, neglects, fails and/or refuses to take and subscribe an oath of allegiance and such oath for the due execution of his or her office as may be prescribed by Parliament, such official shall not enter upon the duties of his or her office.   

It is common knowledge that when the persons who recently won the general elections for various constituencies voted for Specially Elected Members of the National Assembly, they had not yet taken and subscribed to the oath of allegiance. In other words, they were not yet Members of the Assembly. They were only Members of the Assembly-elect. They only took and subscribed to the oath of allegiance on 30th October 2014, about three days after voting for the Specially Elected Members of the National Assembly.

The question then is: Were Specially Elected Members of the National Assembly elected constitutionally? For them to have been elected constitutionally not only should they have been elected in terms of the Constitution, but they also have to have been elected by competent members of the National Assembly who have not only won at the general election, but have also satisfied all the constitutional requirements including the taking and subscribing to the oath of allegiance. Such members of the National Assembly should have been legally capable of taking part in the conduct of Parliamentary proceedings.

Once again, the President’s example becomes handy. It was only after he had taken and subscribed to the oath as prescribed by Parliament that he appointed the Permanent Secretary to the President (PSP). It is only after he has taken and subscribed to the oath as prescribed by Parliament that he can appoint, subject to endorsement by members of the National Assembly, his choice for Vice President.  It is only after he has taken and subscribed to the oath as prescribed by Parliament that he can, as his singular power, appoint Ministers and Assistant Ministers of government in terms of section 42(3) of the Constitution.

In view of the aforegoing, it is my view that the recently elected Specially Elected Members of the National Assembly were elected unconstitutionally. The invitation by the Speaker of the National Assembly to Parliament and being allowed to exercise one of the functions of a member of the National Assembly, voting, did not cure the defect. Neither did the presence and participation of the President.  To use the analogy of a Committee for a Society or a Voluntary Association, it is only after the elected members have been duly elected and constituted that the committee can make co-options. It would be anomalous for the committee, while its own existence has not yet been confirmed, to co-opt other members to join it.

 

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DIS Parley Committee selection disingenuous 

25th November 2020

Intelligence and Security Service Act, which is a law that establishes the Directorate of Intelligence and Security Service (DIS), provides for establishment of a Parliamentary Committee. Recently, the President announced nine names of Members of Parliament he had appointed to the Committee.

This announcement was preceded by a meeting the President held with the Speaker and the Leader of Opposition. Following the announcement of Committee MPs by the President, the opposition, through its leader, made it clear that it will not participate in the Committee unless certain conditions that would ensure effective oversight are met. The opposition acted on the non-participation threat through resignation of its three MPs from the Committee.

The Act at Section 38 provides for the establishment of the Committee to examine the expenditure, administration and policy of the Directorate. The law provides that the Parliamentary Committee shall have the same powers and privileges set out under the National Assembly (Powers and Privileges) Act.

On composition, the Committee shall consist of nine members who shall not be members of Cabinet and its quorum shall be five members.  The MPs in the Committee elect a chairperson from among their number at their first meeting.

The Members of the Committee are appointed by the President after consultation with the Speaker of the National Assembly and Leader of the Opposition in the National Assembly. It is the provision of the law that the Committee, relative to its size, reflect the numerical strengths of the political parties represented in the National Assembly.

The Act provides that that a member of the Committee holds office for the duration of the Parliament in which he or she is appointed.  The Committee is mandated to make an annual report on the discharge of their functions to the President and may at any time report to him or her on any matter relating to the discharge of those functions.

The Minister responsible for intelligence and security is obliged to lay before the National Assembly a copy of each annual report made by the Committee together with a statement as to whether any matter has been excluded from that copy in pursuance of the provision of the Act.

If it appears to the Minister, after consultation with the Parliamentary Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Directorate, the Minister may exclude that matter from the copy of the report as laid before the National Assembly.

So, what are the specific demands of the Opposition and why are they not participating in the Committee? What should happen as a way forward? The Opposition demanded that there be a forensic audit of the Directorate. The DIS has never been audited since it was set up in 2008, more than a decade ago.

The institution has been a law unto itself for a longtime, feared by all oversight bodies. The Auditor General, who had no security of tenure, could not audit the DIS. The Directorate’s personnel, especially at a high level, have been implicated in corruption.  Some of its operatives are in courts of law defending corruption charges preferred against them. Some of the corruption cases which appeared in the media have not made it to the courts.

The DIS has been accused of non-accountability and unethical practices as well as of being a burden on the fiscus.  So, the Opposition demanded, from the President, a forensic audit for the purpose of cleaning up the DIS.  They demand a start from a clean slate.

The second demand by the Opposition is that the law be reviewed to ensure greater accountability of the DIS to Parliament. What are some of the issues that the opposition think should be reviewed? The contention is that the executive cannot appoint a Committee of Parliament to scrutinize an executive institution.

Already, it is argued, Parliament is less independent and it is dominated by the executive. It is contended that the Committee should be established by the Standing Orders and be appointed by a Select Committee of Parliament. There is also an argument that the Committee should report to Parliament and not to the President and that the Minister should not have any role in the Committee.

Democratic and Parliamentary oversight of the intelligence is relatively a new phenomenon across the World. Even developed democracies are still grappling with some of these issues. However, there are acceptable standards or what might be called international best practices which have evolved over the past two or so decades.

In the UK for instance, MPs of the Intelligence and Security Committee are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition. This is a good balancing exercise of involvement of both the executive and the legislature. Consultation is taken for granted in Botswana context in the sense that it has been reduced to just informing the Leader of Opposition without much regard to his or her ideas; they are never taken seriously.

Furthermore, the current Committee in the UK has four Members of the ruling party and five MPs from the opposition. It is a fairly balanced Committee in terms of Parliamentary representation. However, as said above, the President of Botswana appointed six ruling party MPs and three from the opposition.

The imbalance is preposterous and more pronounced with clear intentions of getting the executive way through the ruling party representatives in the Committee. The intention to avoid scrutiny is clear from the numbers of the ruling party MPs in the Committee.

There is also an international standard of removing sensitive parts which may harm national security from the report before it is tabled in the legislature. The previous and current reluctance of the executive arms to open up on Defence and Security matters emanate from this very reason of preserving and protecting national security.

But national security should be balanced with public interest and other democratic principles. The decision to expunge certain information which may be prejudicial to national security should not be an arbitrary and exclusive decision of the executive but a collective decision of a well fairly balanced Committee in consultation with the Speaker and the minister responsible.

There is no doubt that the DIS has been a rogue institution. The reluctance by the President to commit to democratic-parliamentary oversight reforms presupposes a lack of commitment to democratization. The President has no interest in seeing a reformed DIS with effective oversight of the agency.

He is insincere. This is because the President loathes the idea losing an iota of power and sharing it with any other democratic institution. He sees the agency as his power lever to sustain his stay in the high office. He thought he could sanitize himself with an ineffective DIS Committee that would dance to his tune.

The non-participation of the opposition MPs renders the Committee dysfunctional; it cannot function as this would be unlawful. Participation of the opposition is a legal requirement. Even if it can meet, it would lack legitimacy; it cannot be taken seriously. The President should therefore act on the oversight demands and reform the DIS if he is to be taken seriously.

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The Maccabean Uprising

25th November 2020
Jewish freedom fighters

 Jews drive away occupying power under the command of guerrilla leader Judas Maccabees but only just

Although it was the Desolation Sacrilege act, General Atiku, that officially sparked the Maccabean revolt, it in truth simply stoked the fires of an already simmering revolution. How so General?

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Atomic (CON)Fusion

25th November 2020

For years I have trained people about paradigm shifts – those light-bulb-switch-on moments – where there is a seismic change from the usual way of thinking about something to a newer, better way. 

I like to refer to them as ‘aha’ moments because of the sudden understanding of something which was previously incomprehensible. However,  the topic of today’s article is the complete antithesis of ‘aha’.  Though I’d love to tell you I’d had a ‘eureka ‘, ‘problem solved’ moment, I am faced with the complete opposite – an ‘oh-no’ moment or Lost Leader Syndrome.

No matter how well prepared or capable a leader is. they often find themselves facing perplexing events, confounding information, or puzzling situations. Confused by developments of which they can’t make sense and by challenges that they don’t know how to solve they become confused, sometimes lost and completely clueless about what to do.

I am told by Jentz and Murphy (JM) in ‘What leaders do when they don’t know what to do’ that this is normal, and that rapid change is making confusion a defining feature of management in the 21st century.  Now doesn’t that sound like the story of 2020 summed up in a single sentence?

The basic premise of their writing is that “confusion is not a weakness to be ashamed of but a regular and inevitable condition of leadership. By learning to embrace their confusion, managers are able to set in motion a constructive process for addressing baffling issues.

In fact, confusion turns out to be a fruitful environment in which the best managers thrive by using the instability around them to open up better lines of communication, test their old assumptions and values against changing realities, and develop more creative approaches to problem solving.”

The problem with this ideology however is that it doesn’t help my overwhelming feelings of fear and panic which is exacerbated by a tape playing on a loop in my head saying  ‘you’re supposed to know what to do, do something’. My angst is compounded by annoying motivational phrases also unhelpfully playing in my head like.

  • Nothing happens until something moves
  • The secret of getting ahead is getting started

and

  • Act or be acted upon

All these platitudes are urging me to pull something out of the bag, but I know that this is a trap. This need to forge ahead is nothing but a coping mechanism and disguise. Instead of owning the fact that I haven’t got a foggy about what to do, part of me worries that I’ll lose authority if I acknowledge that I can’t provide direction – I’m supposed to know the answers, I’m the MD!  This feeling of not being in control is common for managers in ‘oh no’ situations and as a result they often start reflexively and unilaterally attempting to impose quick fixes to restore equilibrium because, lets be honest, sometimes we find it hard to resist hiding our confusion.

To admit that I am lost in an “Oh, No!” moment opens the door not only to the fear of losing authority but also to a plethora of other troubling emotions and thoughts:  *Shame and loss of face: “You’ll look like a fool!” * Panic and loss of control: “You’ve let this get out of hand!” * Incompetence and incapacitation: “You don’t know what you’re doing!”

As if by saying “I’m at a loss here” is tantamount to declaring “I am not fit to lead.” Of course the real problem for me and any other leader is if they don’t admit when they are disoriented, it sends a signal to others in the organisation stating it’s not cool to be lost and that, by its very nature encourages them to hide.  What’s the saying about ‘a real man never asks for direction. ..so they end up driving around in circles’.

As managers we need to embrace the confusion, show vulnerability (remember that’s not a bad word) and accept that leadership is not about pretending to have all the answers but about having the courage to search with others to discover a solution.

JM point out that “being confused, however, does not mean being incapacitated.  Indeed, one of the most liberating truths of leadership is that confusion is not quicksand from which to escape but rather the potter’s clay of leadership – the very stuff with which managers can work.”

2020 has certainly been a year to remember and all indications are that the confusion which has characterised this year will still follow us into the New Year, thereby making confusion a defining characteristic of the new normal and how managers need to manage. Our competence as leaders will then surely be measured not only by ‘what I know’ but increasingly by ‘how I behave when I accept, I don’t know, lose my sense of direction and become confused.

.I guess the message for all organizational cultures going forward is that sticking with the belief that we need all-knowing, omni-competent executives will cost them dearly and send a message to managers that it is better to hide their confusion than to address it openly and constructively.

Take comfort in these wise words ‘Confusion is a word we have invented for an order not yet understood’!

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