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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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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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