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The President is obliged to follow the JSC’s advice

Ndulamo Anthony Morima

The Constitution at sections 96(2) and 100(2) respectively provides that Judges of the High Court and the Court of Appeal shall be appointed by the President “acting in accordance with the advice of the Judicial Service Commission (JSC)”. While some, including the government, believe that this enjoins the JSC simply to make a recommendation that the President is not bound by, some, including the Law Society of Botswana (LSB), believe that the President is bound by such advice and has no discretion. It is this divergence of view that this article seeks to consider.

In such consideration, refuge will be sought under the rules of interpretation in our law. It is clear that the words ‘…acting in accordance with the advice…’ need to be interpreted judiciously in order for clarity to be achieved in this regard. First, we interpret the word ‘advise’. The rules of interpretation enjoin us to first seek the ordinary or literal meaning before resorting to the contextual or purposive meaning of the word. Second, we interpret the phrase ‘…acting in accordance with…’

According to the Oxford English dictionary, the meaning of the word advise includes giving counsel, giving guidance, making recommendations, offering suggestions, offering opinions, giving pointers, giving directions and giving instructions. While counsel, guidance, recommendations, suggestions, opinions and pointers are non- obligatory and endow on their recipient the discretion to follow them or not, directions and instructions are obligatory and leave the recipient with no discretion.

But, in terms of the word’s utility and ordinary meaning what does the ordinary person understand the word ‘advice’ to mean? For example, does an ordinary person think that a person who has a political or legal advisor is obliged without any discretion to follow the advisor’s advice? The ordinary person probably understands the word ‘advice’ to mean that a person in an inferior position makes recommendations to the superior who has the discretion to accept or decline such recommendations.

From the mixture of mandatory and non-mandatory words in the Oxford English dictionary’s definition of the word ‘advice’ it is clear that the literal meaning cannot conclusively be relied upon. We, therefore, resort to the contextual or purposive meaning. Here, we adopt the meaning which gives effect to the purpose for which the word was used in a particular context.

The context is that the President is enjoined to appoint judges of the High Court and the Court of Appeal ‘acting in accordance with the advice of the JSC’. The other context is that this JSC which renders this advice is, in terms of section 103 (1) of the Constitution, composed of the Chief Justice (CJ) as chairperson; the President of the Court of Appeal, the Attorney-General (AG); the Chairman of the Public Service Commission (PSC); a member of the Law Society nominated by the Law Society; and a person of integrity and experience not being a legal practitioner appointed by the President. Except for the former all members of the JSC are appointees of the President.

The other context is that in Botswana, the President, acting alone and without being enjoined to seek advice from anybody, appoints all other high ranking officials. The other context is that in terms of section 47(2) of the Constitution, “in the exercise of any function conferred upon him by the Constitution or any other law the President shall, unless it is otherwise provided, act in his own deliberate judgment and shall not be obliged to follow the advice tendered by any person or authority”. The other, and perhaps overriding, context is that sections 96(2) and 100(2) of the Constitution were inserted into the Constitution in order to ensure separation of powers, a cardinal pillar of our constitutional democracy. We now consider these contexts in turn.

 Assuming the word ‘advice’ in this context was intended to be mandatory, can the constitutional drafters have intended the President to be compelled to rubber stamp the recommendations of his appointees or subjects? Put differently, can the President’s appointees direct or instruct him to appoint someone? Ordinarily they cannot. But, this is no ordinary matter. It is a matter which touches on separation of powers.

But given that our President has the power to appoint other high ranking officials without seeking advice from anyone, why did our constitutional drafters include it in relation to the appointment of judges? Did they really want the JSC’s advice to be binding on the President or they merely wanted the President’s decision to be influenced by, among others, the JSC’s recommendations? Or true to the Constitution they gave effect to the very exception provided for by section 47(2) of the Constitution?

Ours is a constitutional democracy based on, among other pillars, separation of powers. Drafters of our constitution knew that our President is a partisan politician. Can they have really intended that the composition of the judiciary be determined by a partisan President who will in all likelihood appoint judges whose ideologies he shares? They probably did not intend that. But can they have intended that the President, in whom executive power vests in terms of section 47(1) of the Constitution, rubber stamps decisions of his servants? They probably did not intend that.

What then did they intend? Perhaps the answer lies in the words ‘acting in accordance with’. According to the Oxford English dictionary, the definitions of the word ‘accordance’ include in agreement with; in conformity with; in line with; in compliance with; true to; in fulfillment of; in obedience to; in the spirit of; following; honoring; heeding and observing. According to the plain meaning of these definitions, the President has no discretion, but to obey, or at least take heed, of the advice of the JSC.

Therefore, while the word ‘advise’ alone is non-obligatory, read together with the words ‘acting in accordance with’ it has a mandatory import, especially when interpreted within the context of such an overriding principle as separation of powers. If the President’s discretion alone was sufficient, the JSC’s advice would not have been required in terms of the Constitution.

That if compelled to follow the JSC’s advice the President would in essence be rubber stamping his servants’ decision is neither here nor there. Rubber stamping a decision of a constitutional institution, albeit subordinate, is not amiss if the institution’s loyalty to the Constitution is unshakable. Policy makers, themselves not experts in technical matters, rubber stamp hundreds of decisions every day. The President, for instance, rubberstamps many decisions by the Governor of the Bank of Botswana, some of which have more implications than a judge’s decisions.

The JSC, which comprises a practicing Attorney nominated by the society for Attorneys, the AG as the custodian of Attorneys’ practice, the CJ and the President of the Court of Appeal who are themselves judges, the Chairman of the PSC as the custodian of the public service and a person of integrity and experience not being a legal practitioner representing the public, knows better who is best suited to be a judge.

Members of the JSC, though mostly appointed by the President, are men and women whose professions are based on integrity and though they, like all human beings, have personal prejudices, such prejudices are moderated by the respect for their offices and the prejudices of the other members. On the contrary, the President’s prejudices, which are expectedly political, are unmoderated. His unfettered appointment of judges will, therefore, invariably compromise separation of powers and by extension the rule of law. Why else would the President not follow the advice of his own appointees if not for irrelevant considerations?

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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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