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Declaration of assets & liabilities: does it violate privacy?

Ndulamo Anthony Morima

The debate over whether or not such high ranking functionaries of the State as the President, Vice President, Speaker and Deputy Speaker of the National Assembly, cabinet ministers, Members of Parliament (MPs) and judges should, in terms of an Act of Parliament, be required to publicly declare their assets and liabilities has been going on for some time now.

Thanks to MP for Selibe Phikwe West, Honorable Dithapelo Keorapetse, the debate has resurfaced. In this article, we consider the merits and demerits of declaration of assets and liabilities. We also consider whether or not declaration of assets and liabilities violates the right to privacy.

However, before such consideration it is apposite that we outline what declaration of assets and liabilities entails. The declaration, which is done under oath through a statutory form, usually requires such information as bank account details with bank balances supported by bank statements and a letter from the bank; cash in excess of a certain amount e.g. P 500,000.00 held other than in bank; bonds, stocks, shares and similar investments including any such property over which a right of disposition resides in the declarant; and immovable property, e.g. houses, land and farm buildings.

The declaration also requires information about monies invested in mortgages or business ventures, including crops and livestock; motor vehicles owned, on hire or on loan; values held in safety deposit boxes; insurance policies; any other property; other property held by a person other than the owner, whether in trust or otherwise; income from all sources including perquisites such as house, entertainment, allowances and rentals; liabilities including guarantees and property acquired or disposed.     

While in some countries a public register which is accessible to members of the public is kept, in some the declaration is made to certain officials and the register’s access is restricted to specified officials. For example, the Speaker of the National Assembly, cabinet ministers and deputy ministers and judges and other officers appointed by the President make the declaration to the President. All MPs make the declaration to the Speaker of the National Assembly. This is the model which the Minister of Defense, Justice and Security, Honorable Shaw Kgathi, is reported to have informed Parliament is used in Botswana.

Also, while in some countries the register includes the assets and liabilities of the official’s spouse and children, in others it only includes the concerned official’s assets and liabilities. It is not clear whether or not under the model followed in Botswana the official’s spouse and children are included.

Those in support of declaration of assets and liabilities argue that it will go a long way in combating corruption because officials will be deterred from obtaining assets corruptly knowing that if they did such would be easily detected from the register of assets and liabilities. They also argue that it will instill financial discipline in the officials since they are unlikely to incur unreasonable liabilities for fear of being labelled as financially irresponsible, something which, in the case of elected officials, may make them lose elections.

The proponents of declaration of assets and liabilities also argue that in the case of judicial officers it will not only ensure that the cardinal ‘fit and proper’ requirement is maintained, but will also promote judicial independence since the officials are unlikely to obtain assets and incur liabilities in a manner that compromises their independence for fear of being removed from office for misconduct.

Those opposed to declaration of assets and liabilities argue that it will expose the officials to such security risks as robberies, extortion and blackmail since many people, including criminals, will know of their assets and liabilities. They contend that if the official’s spouse and children are included the risks will be heightened, exposing families to kidnappings and abductions. The exponents also argue that declaration of assets and liabilities will inevitably violate the right to privacy and will, therefore, be unconstitutional. It is the latter point that we wish to consider in depth hereunder.

In terms of section 9(1) of the Botswana constitution, “except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises”. Though this section does not protect the general right to privacy, but protects the privacy of home and other property, the general right to privacy is an international phenomenon. In its normal application it, as in section 14 of the South African constitution, provides that “everyone has the right to privacy, which includes the right not to have- (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed”.

The aforegoing limitation notwithstanding, the right to privacy, at least in terms of most countries’ common law, has been interpreted to include the right not to have the privacy of a person’s private and confidential information, e.g. assets and liabilities infringed.

Narrowly interpreted, in terms of section 9(1) of the Botswana constitution if an official or their spouse and children consent to declaring their assets and liabilities, there will be no violation of their right to privacy. At common law, such violation can only subsist if they render such consent under duress. But the issue is broader than that. It should be more about the constitutionality of the Act of Parliament or the Executive decision providing for the declaration than it should be about the officials’ consent. We will return to this point shortly.

 Section 9(2) of the Botswana constitution provides that “nothing contained in or done under the authority of any law (e.g. Act of Parliament permitting declaration of assets and liabilities) shall be held to be inconsistent with or in contravention of this section (section 9(1)) to the extent that the law in question makes provision (a) that is reasonably required in the interests of defence, public safety, public order, public morality, public health…; (b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons…; (c)…; (d)…, and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society”.

Section 9(2) is the limitation clause which permits the violation of the right to privacy under the circumstances set thereunder. For example, if it can be demonstrated that the declaration of assets and liabilities is required for the purpose of protecting the rights or freedoms of other persons, it will not be unconstitutional to require certain officials or any person to make a declaration of their assets and liabilities.

In other words, though such would ordinarily amount to a violation of the right to privacy and, therefore, unconstitutional, such violation will be permitted because of the limitations in section 9(2). In the result, we are compelled to conclude that declaration of assets and liabilities does not per se violate the right to privacy. Each case will be judged on its own merits.

However, while the limitation with respect to the officials themselves is likely to be held as justified in terms of section 9(2), it is doubtful whether it will be justified with respect to spouses married out of community of property and children, especially those who have attained the age of majority or are married.

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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The Era of “The Diplomat”

30th November 2020

Youngest Maccabees scion Jonathan takes over after Judas and leads for 18 years

Going hand-in-glove with the politics at play in Judea in the countdown to the AD era, General Atiku, was the contention for the priesthood. You will be aware, General, that politics and religion among the Jews interlocked. If there wasn’t a formal and sovereign Jewish King, there of necessity had to be a High Priest at any given point in time.

Initially, every High Priest was from the tribe of Levi as per the stipulation of the Torah. At some stage, however, colonisers of Judah imposed their own hand-picked High Priests who were not ethnic Levites. One such High Priest was Menelaus of the tribe of Benjamin.

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Land Board appointments of party activists is political corruption

30th November 2020

Parliament has rejected a motion by Leader of Opposition (LOO) calling for the reversing of the recent appointments of ruling party activists to various Land Boards across the country. The motion also called for the appointment of young and qualified Batswana with tertiary education qualifications.

The ruling party could not allow that motion to be adopted for many reasons discussed below. Why did the LOO table this motion? Why was it negated? Why are Land Boards so important that a ruling party felt compelled to deploy its functionaries to the leadership and membership positions?

Prior to the motion, there was a LOO parliamentary question on these appointments. The Speaker threw a spanner in the works by ruling that availing a list of applicants to determine who qualified and who didn’t would violate the rights of those citizens. This has completely obliterated oversight attempts by Parliament on the matter.

How can parliament ascertain the veracity of the claim without the names of applicants? The opposition seeks to challenge this decision in court.  It would also be difficult in the future for Ministers and government officials to obey instructions by investigative Parliamentary Committees to summon evidence which include list of persons. It would be a bad precedent if the decision is not reviewed and set aside by the Business Advisory Committee or a Court of law.

Prior to independence, Dikgosi allocated land for residential and agricultural purposes. At independence, land tenures in Botswana became freehold, state land and tribal land. Before 1968, tribal land, which is land belonging to different tribes, dating back to pre-independence, was allocated and administered by Dikgosi under Customary Law. Dikgosi are currently merely ‘land overseers’, a responsibility that can be delegated. Land overseers assist the Land Boards by confirming the vacancy or availability for occupation of land applied for.

Post-independence, the country was managed through modern law and customary law, a system developed during colonialism. Land was allocated for agricultural purposes such as ploughing and grazing and most importantly for residential use. Over time some land was allocated for commercial purpose. In terms of the law, sinking of boreholes and development of wells was permitted and farmers had some rights over such developed water resources.

Land Boards were established under Section 3 of the Tribal Land Act of 1968 with the intention to improve tribal land administration. Whilst the law was enacted in 1968, Land Boards started operating around 1970 under the Ministry of Local Government and Lands which was renamed Ministry of Lands and Housing (MLH) in 1999. These statutory bodies were a mechanism to also prune the powers of Dikgosi over tribal land. Currently, land issues fall under the Ministry of Land Management, Water and Sanitation Services.

There are 12 Main Land Boards, namely Ngwato, Kgatleng, Tlokweng, Tati, Chobe, Tawana, Malete, Rolong, Ghanzi, Kgalagadi, Kweneng and Ngwaketse Land Boards.  The Tribal Land Act of 1968 as amended in 1994 provides that the Land Boards have the powers to rescind the grant of any rights to use any land, impose restrictions on land usage and facilitate any transfer or change of use of land.

Some land administration powers have been decentralized to sub land boards. The devolved powers include inter alia common law and customary law water rights and land applications, mining, evictions and dispute resolution. However, decisions can be appealed to the land board or to the Minister who is at the apex.

So, land boards are very powerful entities in the country’s local government system. Membership to these institutions is important not only because of monetary benefits of allowances but also the power of these bodies. in terms of the law, candidates for appointment to Land Boards or Subs should be residents of the tribal areas where appointments are sought, be holders of at least Junior Certificate and not actively involved in politics.  The LOO contended that ruling party activists have been appointed in the recent appointments.

He argued that worse, some had no minimum qualifications required by the law and that some are not inhabitants of the tribal or sub tribal areas where they have been appointed. It was also pointed that some people appointed are septuagenarians and that younger qualified Batswana with degrees have been rejected.

Other arguments raised by the opposition in general were that the development was not unusual. That the ruling party is used to politically motivated appointments in parastatals, civil service, diplomatic missions, specially elected councilors and Members of Parliament (MPs), Bogosi and Land Boards. Usually these positions are distributed as patronage to activists in return for their support and loyalty to the political leadership and the party.

The ruling party contended that when the Minister or the Ministry intervened and ultimately appointed the Land Boards Chairpersons, Deputies and members , he didn’t have information, as this was not information required in the application, on who was politically active and for that reason he could not have known who to not appoint on that basis. They also argued that opposition activists have been appointed to positions in the government.

The counter argument was that there was a reason for the legal requirement of exclusion of political activists and that the government ought to have mechanisms to detect those. The whole argument of “‘we didn’t know who was politically active” was frivolous. The fact is that ruling party activists have been appointed. The opposition also argued that erstwhile activists from their ranks have been recruited through positions and that a few who are serving in public offices have either been bought or hold insignificant positions which they qualified for anyway.

Whilst people should not be excluded from public positions because of their political activism, the ruling party cannot hide the fact that they have used public positions to reward activists. Exclusion of political activists may be a violation of fundamental human or constitutional rights. But, the packing of Land Boards with the ruling party activists is clear political corruption. It seeks to sow divisions in communities and administer land in a politically biased manner.

It should be expected that the ruling party officials applying for land or change of land usage etcetera will be greatly assisted. Since land is wealth, the ruling party seeks to secure resources for its members and leaders. The appointments served to reward 2019 election primary and general elections losers and other activists who have shown loyalty to the leadership and the party.

Running a country like this has divided it in a way that may be difficult to undo. The next government may decide to reset the whole system by replacing many of government agencies leadership and management in a way that is political. In fact, it would be compelled to do so to cleanse the system.

The opposition is also pondering on approaching the courts for review of the decision to appoint party functionaries and the general violation of clearly stated terms of reference. If this can be established with evidence, the courts can set aside the decision on the basis that unqualified people have been appointed.

The political activism aspect may also not be difficult to prove as some of these people are known activists who are in party structures, at least at the time of appointment, and some were recently candidates. There is a needed for civil society organizations such as trade unions and political parties to fight some of these decisions through peaceful protests and courts.

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