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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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Economic Resurgence Options: Is Export-Led Growth Tenable For Botswana?

22nd September 2020

The world in which we live is a criminally unequal one. In his iconic 1945 allegorical novella,  Animal Farm, a satire on the facetiousness  of the then Soviet Empire’s crackbrained experiment with a command economy, the legendary George Orwell in my view hit the nail squarely on the head when he said all animals were equal but some animals were more equal than others.

That’s the never-ending dichotomy of the so-called First World and its polar opposite, the so-called Third World as Orwell’s cleverly-couched diatribe applies as much to the tread-of-the-mill laissez faire economics of our day as it did to Marxist-Leninist Russia a generation back.

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Victory is Won

22nd September 2020

Israelites take Canaan under General Joshua

Even as the Nation of Israeli braced to militarily take possession of the Promised Land, General, its top three senior citizens, namely Moses, Aaron, and Miriam, were not destined to share in this god-conferred bequest. All three died before the lottery was won.

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Finance Bills: What are they about?

22nd September 2020

Financial Reporting (Amendment) Bill, 2020 and Accountants (Amendment) Bill, 2020 were expeditiously passed by parliament on Thursday.

What are these two Bills really about?  The Bills are essentially about professional values that are applicable to auditors and accountants in their practice. The Bills seeks to basically enhance existing laws to ensure more uprightness, fairness, professional proficiency, due care, expertise and or professional technical standards.

The Financial Reporting Act, 2010 (FRA) establishes the Botswana Accountancy Oversight Authority (BAOA), as the country’s independent regulator of the accounting and auditing profession. BAOA is responsible for the oversight and registration of audit firms and certified auditors of public interest entities.

In the same vein, there is the Accountants Act, 2010 establishing the Botswana Institute of Chartered Accountants (BICA) which is responsible for the registration and regulation of the accounting and auditing profession. This consequently infers that some auditors have to register first with BICA as certified auditors, and also with BAOA as certified auditors of public bodies. So, the Bills sought to avert the duplication.

According to Minister Matsheka, the duplication of efforts in the regulation of auditors, which is done by both BICA and BAOA, creates a substantial gap on oversight of certified auditors in Botswana, as the two entities have different review procedures. He contends that the enforcement of sanctions becomes problematic and, thus, leads to offenders going Scot-Free, and audit quality standards also continue to plunge.

The Financial Reporting (Amendment) Bill, 2020, in the view of the Minister, brings the oversight and regulation of all auditors in Botswana under the jurisdiction of the Accountancy Oversight Authority and that Bringing all auditors within one roof, under the supervision of BAOA would therefore reinforce their oversight and significantly enhance accountability.

He also pointed that the Bill broadens the current mandate of the Authority by redefining public interest entities to include public bodies, defined as boards, tribunals, commissions, councils, committees, other body corporate or unincorporated established under any enactment.

This covers any company in which government has an equity shareholding. In order to enable the process of instituting fitting sanctions against violation of its provisions, the Bill clearly lays down acts and lapses that constitute professional misconduct.

This Bill further strengthens the sanctions for breach of the Act by public interest entities, officers, firms, and certified auditors. Reinforcing the law with respect to such sanctions will act as an effective deterrent for breach of the Act.

The Accountants Bill also strengthens the current mandate of the Institute by making it obligatory for those who provide accountancy services in Botswana to register with the Institute, and for all employers to hire accountants who are registered with the Institute.

The Minister reasons that in line with the spirit of citizen empowerment, this Bill proposes reservation of at least 50% of the Council membership for citizens. This, he says, is to empower citizens and ensure that citizenries play an active role in the affairs of the Institute, and ultimately in the development of the accounting profession in Botswana.

The Bills come at a point when Botswana’s financial sector is in a quagmire. The country has been blacklisted by the European Union. Its international rankings on Corruption Perception Index have slightly reduced.  According to recent reports by Afro Barometer survey, perceptions of corruption in the public service have soured and so is mistrust in public institutions.

Rating agencies, Standard Poor’s and Moody’s have downgraded Botswana, albeit slightly. The reasons are that there continues to be corruption, fiscal and revenue crimes such as money laundering and general unethical governance in the country. There are still loopholes in many laws despite the enactments and amendments of more than thirty laws in the last two years.

One of the most critical aspect of enhancing transparency and accountability and general good governance, is to have a strong auditing and accounting systems. Therefore, such professions must be properly regulated to ensure that public monies are protected against white color crime. It is well known that some audit firms are highly unprincipled.

They are responsible for tax avoidance and tax evasions of some major companies. Some are responsible for fraud that has been committed. They are more loyal to money paid by clients than to ethical professional standards. They shield clients against accountability. Some companies and parastatals have collapsed or have been ruined financially despite complementary reports by auditors.

In some cases, we have seen audit firms auditing parastatals several times to almost becoming resident auditors. This is bad practice which is undesirable. Some auditors who were appointed liquidators of big companies have committee heinous crimes of corruption, imprudent management, fraud and outright recklessness without serious consequences.

There is also a need to protect whistleblowers as they have been victimized for blowing the whistle on impropriety. In fact, in some cases, audit firms have exonerated culprits who are usually corrupt corporate executives.

The accounting and auditing professions have been dominated by foreigners for a very long time. Most major auditing firms used by state entities and big private sector companies are owned by foreigners. There has to be a deliberate plan to have Batswana in this profession.

While there are many Batswana who are accountants, less are chartered accountants. There must be deliberate steps to wrestle the profession from foreigners by making citizens to be chartered.  It is also important to strengthen the Auditor General. The office is created by the constitution.

The security of tenure is clearly secured in the constitution. However, this security of tenure was undermined by the appointing authority in many instances whereby the Auditor General was appointed on a short-term contract. The office is part of the civil service and is not independent at all.

The Auditor General is placed, in terms of scale, at Permanent Secretary level and is looked at as a peer by others who think they can’t be instructed by their equivalent to comply. Some have failed to submit books of accounts for audits, e.g. for special funds without fear or respect of the office. There is need to relook this office by making it more independent and place it higher than Permanent Secretaries.

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