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Declaration of assets & liabilities: does it violate privacy?

Ndulamo Anthony Morima
EAGLE WATCH

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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Technology saves Lions from angry Okavango villagers

22nd November 2022

Villagers in the eastern Okavango region are now using an alert system which warns them when collared lions approach livestock areas. The new technology is now regarded as a panacea to the human/wildlife conflict in the area as it has reduced mass poisoning and killing of lions by farmers.

The technology is being implemented by an NGO, Community Living Among Wildlife Sustainably (CLAWS) within the five villages of Seronga, Gunutsoga, Eretsha, Beetsha and Gudigwa in the eastern part of the Okavango delta.

A Carnivore Ecologist from CLAWS, Dr Andrew Stein explained that around 2013, villagers in the eastern Okavango were having significant problems with losses of their cattle to predators specifically lions, so the villagers resorted to using poison and shooting the lions in order to reduce their numbers.

He highlighted that as a form of progressive intervention, they designed a programme to reduce the conflicts and promote coexistence. Another component of the programme is communal herding, introduced in 2018 to reduce the conflict by increasing efficiency whereby certified herders monitor livestock health and protect them from predators, allowing community members to engage in other livelihood activities knowing that their livestock are safe.

They are now two herds with 600 and 230 cattle respectively with plan to expand the programme to other neighbouring villages. Currently the programme is being piloted in Eretsha, one of the areas with most conflict incidences per year.

Dr Stein explained that they have developed the first of its kind alert system whereby when the lions get within three or five kilometers of a cattllepost or a homestead upon the five villages, then it will release an alert system going directly to the cellphones of individuals living within the affected area or community.

‘So, if a colored lion gets to about five kilometers of Eretsha village or any villagers in the Eretsha that has signed up for, the system will receive an SMS of the name of the lion and its distance to or from the village”, he stated. He added that this enables villagers to take preventative action to reduce conflicts before its starts.

Dr Stein noted that some respond by gathering their cattle and put them in a kraal or put them in an enclosure making sure that the enclosure is secure while some people will gather firewood and light small fires around edges of the kraal to prevent lions from coming closer and some when they receive the SMS they send their livestock to the neighbours alerting them about the presence of lions.

He noted that 125 people have signed to receive the alert system within Seronga, Eretsha, Beetsha, Gunutsoga and Gudigwa. He added that each homestead is about five people and this means more than 600 people immediately receive the messages about lions when they approach their villages. He also noted that last year they dispersed over 12 000 alerts, adding that this year is a bit higher as about 20 000 alerts have been sent so far across these villages.

Stein further noted that they have been significant changes in the behavior of the villagers as they are now tolerant to lions. “85 percent were happy with the SMS and people are becoming more tolerant with living with lions because they have more information to reduce the conflicts,” he stressed.

Stein noted that since the start of the programme in 2014 they have seen lion populations rebounds almost completely to a level before and they have not recorded cases of lion poisoning in the last three years which is commendable effort.

Monnaleso Sanga from Eretsha village applauded the programme by CLAWS noting that farmers in the area are benefiting through the alert system and take preventative measures to reduce human/lion conflict which has been persistent in the area. He added that numbers of cattle killed by lions have reduced immensely. He also admitted that they are now tolerant to lions and they no longer kill nor poison them.

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THE IDEAL QUALITY OF A MUSLIM

8th September 2022

A Muslim is supposed to be and should be a living example of the teachings of the Quran and the ‘Sunnah’ (the teachings and living examples of Prophet Muhammed (SAW – Peace be upon Him). We should follow these in all affairs, relations, and situations – starting with our relationship with our Lord, our own self, our family and the people around us. One of the distinguishing features of the (ideal) Muslim is his faith in Allah, and his conviction that whatever happens in the universe and whatever befalls him, only happens through the will and the decree of the Almighty Allah.

A Muslim should know and feel that he is in constant need of the help and support of Allah, no matter how much he may think he can do for himself. He has no choice in his life but to submit to the will of his Creator, worship Him, strive towards the Right Path and do good deeds. This will guide him to be righteous and upright in all his deeds, both in public and in private.

His attitude towards his body, mind and soul

The Muslim pays attention to his body’s physical, intellectual and spiritual needs. He takes good care of his body, promoting its good health and strength. He shouldn’t eat in excess; but he should eat enough to maintain his health and energy. Allah, The Exalted, Says “…Eat and drink; but waste not by excess, for Allah loves not the wasters.” [Quran 7: 31]

The Muslim should keep away from alcohol and drugs. He should also try to exercise regularly to maintain his physical fitness. The Muslim also keeps his body and clothes clean, he bathes frequently. The Prophet placed a great emphasis on cleanliness and bathing. A Muslim is also concerned with his clothing and appearance but in accordance with the Islamic ideal of moderation, avoiding the extremes.

As for his intellectual care, the Muslim should take care of his mind by pursuing beneficial knowledge. It is his responsibility to seek knowledge whether it is religious or secular, so he may understand the nature and the essence of things. Allah Says: “…and say: My Lord! Increase me in knowledge.” [Quran 20: 114

The Muslim should not forget that man is not only composed of a body and a mind, but that he also possesses a soul and a spirit. Therefore, the Muslim pays as much attention to his spiritual development as to his physical and intellectual development, in a balanced manner which ideally does not concentrate on one aspect to the detriment of others.

His attitude towards people

The Muslim must treat his parents with kindness and respect, compassion, politeness and deep gratitude. He recognizes their status and knows his duties towards them. Allah Says “And serve Allah. Ascribe nothing as partner unto Him. (Show) kindness unto parents…” [Quran 4: 36]

With his wife, the Muslim should exemplify good and kind treatment, intelligent handling, deep understanding of the nature and psychology of women, and proper fulfilment of his responsibilities and duties.

With his children, the Muslim is a parent who should understand his responsibility towards their good upbringing, showing them love and compassion, influence their Islamic development and giving them proper education, so that they become active and constructive elements in society, and a source of goodness for their parents, community, and society as a whole.

With his relatives, the Muslim maintains the ties of kinship and knows his duties towards them. He understands the high status given to relatives in Islam, which makes him keep in touch with them, no matter what the circumstances.

 

With his neighbours, the Muslim illustrates good treatment, kindness and consideration of others’ feelings and sensitivities. He turns a blind eye to his neighbour’s faults while taking care not to commit any such errors himself. The Muslim relationship with his wider circle of friends is based on love for the sake of Allah. He is loyal and does not betray them; he is sincere and does not cheat them; he is gentle, tolerant and forgiving; he is generous and he supplicates for them.

In his social relationships with all people, the Muslim should be well-mannered, modest and not arrogant. He should not envy others, fulfils his promises and is cheerful. He is patient and avoids slandering and uttering obscenities. He should not unjustly accuse others nor should he interfere in that which does not concern him. He refrains from gossiping, spreading slander and stirring up trouble – avoids false speech and suspicion. When he is entrusted with a secret, he keeps it. He respects his elders. He mixes with the best of people. He strives to reconcile between the Muslims. He visits the sick and attends funerals. He returns favours and is grateful for them. He calls others to Islam with wisdom, example and beautiful preaching. He should guide people to do good and always make things easy and not difficult.

The Muslim should be fair in his judgments, not a hypocrite, a sycophant or a show-off. He should not boast about his deeds and achievements. He should be straightforward and never devious or twisted, no matter the circumstances. He should be generous and not remind others of his gifts or favours. Wherever possible he relieves the burden of the debtor. He should be proud and not think of begging.

These are the standards by which the (ideal) Muslim is expected to structure his life on. Now how do I measure up and fit into all this? Can I honestly say that I really try to live by these ideals and principles; if not can I really call myself a true Muslim?

For the ease of writing this article I have made use of for want of a better word, the generic term ‘he’, ‘his’, ‘him’ and the ‘male’ gender, but it goes without saying that these standards apply equally to every female and male Muslim.

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OUR BELOVED CHILDREN

29th August 2022

“Homicide and suicide kill almost 7000 children every year; one in four of all children are born to unmarried mothers, many of whom are children themselves…..children’s potential lost to spirit crushing poverty….children’s hearts lost in divorce and custody battles….children’s lives lost to abuse and violence, our society lost to itself, as we fail our children.” “If you bungle raising your children, I don’t think whatever else you do matters very much.” (Quotation taken from a book written by Hillary Clinton).

These words may well apply to us here in Botswana; We are also experiencing a series of challenges in many spheres of development and endeavour but none as challenging as the long term effects of what is going to happen to our youth of today. One of the greatest challenges facing us as parents today is how to guide our youth to become the responsible adults that we wish them to be, tomorrow.

In Islam Prophet Muhammad (PBUH) has enjoined upon the parents to take care of the moral and religious instruction of their children from the very beginning, otherwise they will be called to account for negligence on the Day of Judgement. Parents must inculcate God-consciousness in their children from an early age, whereby the children will gain an understanding of duty to The Creator.

 

The Holy Qur’an says: ‘O you who believe! Save yourself and your families from the Fire of Hell’. (Ch. 66: V6). This verse places the responsibility on the shoulders of the parents to ensure that training and guidance begin at home. The goal is to mould the child into a solid Islamic personality, with good morals, strong Islamic principles, knowledge and behavior so as to be equipped to face the demands of life in a responsible and mature manner. This should begin with the proper environment at home that inculcates the best moral and behavioral standards.

But what do we have instead? Believers of all Religious persuasions will agree that we have children growing up without parental guidance, a stable home environment, without role models, being brought up in surroundings that are not conducive to proper upbringing and moulding of well-adjusted children. These children are being brought up devoid of any parental guidance and increasingly the desperate situation of orphaned children having to raise their siblings (children raising children) because their parents have succumbed to the scourge of AIDS.

It is becoming common that more and more girls still in their schooling years are now falling pregnant, most of them unwanted, with the attendant responsibilities and difficulties.

Observe the many young ladies who are with children barely in their teens having illegitimate children. In the recent past there was a campaign focused on the ‘girl-child’; this campaign targeted this group of young females who had fallen pregnant and were now mothers. The situation is that the mother still being just a ‘child’ and not even having tasted adulthood, now has the onerous responsibility of raising her own child most of the time on her own because either the father has simply disappeared, refuses to takes responsibility, or in some cases not even known.

We cannot place the entire blame on these young mothers; as parents and society as a whole stand accused because we have shirked our responsibilities and worse still we ourselves are poor role models. The virtual breakdown of the extended family system and of the family unit in many homes means that there are no longer those safe havens of peace and tranquility that we once knew. How then do we expect to raise well-adjusted children in this poisoned atmosphere?

Alcohol has become socially acceptable and is consumed by many of our youth and alarmingly they are now turning to drugs. Alcohol is becoming so acceptable that it is easily accessible even at home where some parents share drinks with their children or buying it for them. This is not confined only to low income families it is becoming prevalent amongst our youth across the board.

 

It is frightening to witness how our youth are being influenced by blatantly suggestive pop culture messages over television, music videos and other social media. Children who are not properly grounded in being able to make rational and informed decisions between what is right and what is wrong are easily swayed by this very powerful medium.

 

So what do we do as parents? We first have to lead by example; it is no longer the parental privilege to tell the child ‘do as I say not as I do’- that no longer works. The ball is in the court of every religious leader (not some of the charlatans who masquerade as religious leaders), true adherents and responsible parents. We cannot ignore the situation we have to take an active lead in guiding and moulding our youth for a better tomorrow.

In Islam Prophet Muhammad (pbuh) said: “No father gives a better gift to his children than good manners and good character.”  Children should be treated not as a burden, but a blessing and trust of Allah, and brought up with care and affection and taught proper responsibilities etiquettes and behaviour.

Even the Bible says; ‘Suffer the little children to come unto me and forbid them not, for of such is the kingdom of God. Verily I say unto you, whosoever shall not receive the kingdom of God as a little child, he shall not enter therein’. (Mark 10:14-15)

The message is clear and needs to be taken by all of us: Parents let us rise to the occasion – we owe it to our children and their future.

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