We left off last week with Mathiba aMoremi II installed on the new Batawana kgosi, while his deposed uncle, Kgosi Sekgoma Letsholathebe remained imprisoned by the British at Gaborone without any legal charge having been filed against him. His detention was thus seen by many as clear violation of the judicial principal of habeas corpus, which holds that a person cannot be held indefinitely without being charged and convicted of a crime.
Sekgoma, in this respect was being detained by order of the British High Commissioner on the basis of crimes he or his supporters might commit.â€¨â€¨At first Sekgoma's detention was conceived as a temporary expedient to give Mathiba time to consolidate his position.
But, the new chief proved unable to control Sekgoma's hard-line supporters who ultimately became known by the name "Maitapiso".â€¨â€¨The Maitapiso faction boycotted the central kgotla and otherwise refused to take any orders from either Mathiba or his councillors. Instead, they maintained constant contact through by mail and courier with the imprisoned Sekgoma. Communication was facilitated by a number of attendants who came to serve the deposed ruler, living just outside the jail fence.â€¨â€¨In 1908 Mathiba tried to jail three of Sekgoma's leading supports, sparking a near rebellion.
Protectorate Police then had to intervene to assist Mathiba loyalists in disarming a large body of alleged Maitapiso coup plotters.â€¨â€¨Meanwhile, Sekgoma remained in prison without charge or trial for over five years, refusing repeated offers of voluntary exile in South Africa. The British knew that if he was simply transferred to South Africa, the courts would order his immediate release and they would have no control over him.â€¨â€¨Yet, repeated attempts to bribe Sekgoma into renouncing his claim to bogosi failed. His defiance was thus becoming both a legal and political embarrassment.â€¨â€¨
Having used the courts in the past to successfully collect debts from white traders as well as secure his divorce, Sekgoma had some faith in British law. At the urging of his friend, Charles Riley, he decided to mount his own legal challenge, beginning a judicial process that was ultimately resolved by a landmark judgment before the Privy Council in London.
â€¨â€¨His initial appeals were directed to the courts of the then still British Cape Colony, where he tried to obtain his rights of habeas corpus (no long term detention without charge). But, although the laws of the Cape had also become the laws of the Bechuanaland, it was ruled that the Colony's courts nonetheless had no jurisdiction or oversight authority within the Protectorate.â€¨â€¨After these reversals, Sekgoma decided to send Charles Riley to London to recruit lawyers to bring his case before the British Courts.
â€¨â€¨After months of litigation, at the cost of thousands of pounds in legal fees, the Privy Council in London finally rejected Sekgoma's appeal in April 1910. The Empire's highest judicial authority ruled that Sekgoma had no right to habeas corpus because he was not a proper subject of the Empire. Instead, as a "native" resident of Bechuanaland, he was judged to be an "uncivilized" non-subject or foreign "Protected Person". As such, any British law did not protect him.â€¨â€¨In reaching the above judgment, the Privy Council correctly noted that British law had never been extended to Bechuanaland and other imperial African Protectorates. Instead, the Bechuanaland Protectorate had been proclaimed in 1885 under the authority of Parliament's Foreign Jurisdictions Act, which authorized London to unilaterally impose its authority over "uncivilized" territories to protect "civilized" interests.
Thus, Bechuanaland had been administratively defined in a February 1891 Colonial Office legal memorandum as:â€¨â€¨"An uncivilized territory to which Europeans resort in greater or less numbers and where, in as much as the native rulers of the territory are incapable of maintaining peace, order and good government among Europeans, the protecting power maintains courts, police and other institutions for the control, safety and benefit of its own subjects and of the natives."â€¨â€¨In their judgment, the Privy Council members expressed some misgivings about denying a person under defacto British rule the right not to be imprisoned indefinitely without any charge.
But, they noted, that their misgivings were:â€¨â€¨"Made less difficult if one remembers that the [Bechuanaland] Protectorate is a country in which a few dominant civilized men have to control a great multitude of the semi-barbarous."â€¨â€¨Continuing, they noted that while British law and human rights were excellent things, they were not necessarily appropriate to the demands of administering Protectorates such as Bechuanaland. In this respect, they observed that such legal protections as habeas corpus could prove "ruinous when applied to semi-savage tribes."â€¨â€¨And so, Sekgoma, who used a typewriter and other then modern technologies, and who had been both married and divorced according to British law, was denied basic human rights due to his supposedly "semi-barbarous" nature.
Likewise, all other indigenous inhabitants of Bechuanaland were legally confirmed as "uncivilized" and thus unfit for British legal protection.â€¨â€¨The subsequent colonial era detentions and/or banishments of hundreds of other Batswana, including such prominent individuals as Dikgosi Molefi, Sebele II, Tshekedi, Nswazwi VIII, Gobuamang and Seretse Khama, were all legally grounded in the Privy Council's judgment with respect to Sekgoma aLethsholathebe.â€¨
Intelligence and Security Service Act, which is a law that establishes the Directorate of Intelligence and Security Service (DIS), provides for establishment of a Parliamentary Committee. Recently, the President announced nine names of Members of Parliament he had appointed to the Committee.
This announcement was preceded by a meeting the President held with the Speaker and the Leader of Opposition. Following the announcement of Committee MPs by the President, the opposition, through its leader, made it clear that it will not participate in the Committee unless certain conditions that would ensure effective oversight are met. The opposition acted on the non-participation threat through resignation of its three MPs from the Committee.
The Act at Section 38 provides for the establishment of the Committee to examine the expenditure, administration and policy of the Directorate. The law provides that the Parliamentary Committee shall have the same powers and privileges set out under the National Assembly (Powers and Privileges) Act.
On composition, the Committee shall consist of nine members who shall not be members of Cabinet and its quorum shall be five members. The MPs in the Committee elect a chairperson from among their number at their first meeting.
The Members of the Committee are appointed by the President after consultation with the Speaker of the National Assembly and Leader of the Opposition in the National Assembly. It is the provision of the law that the Committee, relative to its size, reflect the numerical strengths of the political parties represented in the National Assembly.
The Act provides that that a member of the Committee holds office for the duration of the Parliament in which he or she is appointed. The Committee is mandated to make an annual report on the discharge of their functions to the President and may at any time report to him or her on any matter relating to the discharge of those functions.
The Minister responsible for intelligence and security is obliged to lay before the National Assembly a copy of each annual report made by the Committee together with a statement as to whether any matter has been excluded from that copy in pursuance of the provision of the Act.
If it appears to the Minister, after consultation with the Parliamentary Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Directorate, the Minister may exclude that matter from the copy of the report as laid before the National Assembly.
So, what are the specific demands of the Opposition and why are they not participating in the Committee? What should happen as a way forward? The Opposition demanded that there be a forensic audit of the Directorate. The DIS has never been audited since it was set up in 2008, more than a decade ago.
The institution has been a law unto itself for a longtime, feared by all oversight bodies. The Auditor General, who had no security of tenure, could not audit the DIS. The Directorate’s personnel, especially at a high level, have been implicated in corruption. Some of its operatives are in courts of law defending corruption charges preferred against them. Some of the corruption cases which appeared in the media have not made it to the courts.
The DIS has been accused of non-accountability and unethical practices as well as of being a burden on the fiscus. So, the Opposition demanded, from the President, a forensic audit for the purpose of cleaning up the DIS. They demand a start from a clean slate.
The second demand by the Opposition is that the law be reviewed to ensure greater accountability of the DIS to Parliament. What are some of the issues that the opposition think should be reviewed? The contention is that the executive cannot appoint a Committee of Parliament to scrutinize an executive institution.
Already, it is argued, Parliament is less independent and it is dominated by the executive. It is contended that the Committee should be established by the Standing Orders and be appointed by a Select Committee of Parliament. There is also an argument that the Committee should report to Parliament and not to the President and that the Minister should not have any role in the Committee.
Democratic and Parliamentary oversight of the intelligence is relatively a new phenomenon across the World. Even developed democracies are still grappling with some of these issues. However, there are acceptable standards or what might be called international best practices which have evolved over the past two or so decades.
In the UK for instance, MPs of the Intelligence and Security Committee are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition. This is a good balancing exercise of involvement of both the executive and the legislature. Consultation is taken for granted in Botswana context in the sense that it has been reduced to just informing the Leader of Opposition without much regard to his or her ideas; they are never taken seriously.
Furthermore, the current Committee in the UK has four Members of the ruling party and five MPs from the opposition. It is a fairly balanced Committee in terms of Parliamentary representation. However, as said above, the President of Botswana appointed six ruling party MPs and three from the opposition.
The imbalance is preposterous and more pronounced with clear intentions of getting the executive way through the ruling party representatives in the Committee. The intention to avoid scrutiny is clear from the numbers of the ruling party MPs in the Committee.
There is also an international standard of removing sensitive parts which may harm national security from the report before it is tabled in the legislature. The previous and current reluctance of the executive arms to open up on Defence and Security matters emanate from this very reason of preserving and protecting national security.
But national security should be balanced with public interest and other democratic principles. The decision to expunge certain information which may be prejudicial to national security should not be an arbitrary and exclusive decision of the executive but a collective decision of a well fairly balanced Committee in consultation with the Speaker and the minister responsible.
There is no doubt that the DIS has been a rogue institution. The reluctance by the President to commit to democratic-parliamentary oversight reforms presupposes a lack of commitment to democratization. The President has no interest in seeing a reformed DIS with effective oversight of the agency.
He is insincere. This is because the President loathes the idea losing an iota of power and sharing it with any other democratic institution. He sees the agency as his power lever to sustain his stay in the high office. He thought he could sanitize himself with an ineffective DIS Committee that would dance to his tune.
The non-participation of the opposition MPs renders the Committee dysfunctional; it cannot function as this would be unlawful. Participation of the opposition is a legal requirement. Even if it can meet, it would lack legitimacy; it cannot be taken seriously. The President should therefore act on the oversight demands and reform the DIS if he is to be taken seriously.
For years I have trained people about paradigm shifts – those light-bulb-switch-on moments – where there is a seismic change from the usual way of thinking about something to a newer, better way.
I like to refer to them as ‘aha’ moments because of the sudden understanding of something which was previously incomprehensible. However, the topic of today’s article is the complete antithesis of ‘aha’. Though I’d love to tell you I’d had a ‘eureka ‘, ‘problem solved’ moment, I am faced with the complete opposite – an ‘oh-no’ moment or Lost Leader Syndrome.
No matter how well prepared or capable a leader is. they often find themselves facing perplexing events, confounding information, or puzzling situations. Confused by developments of which they can’t make sense and by challenges that they don’t know how to solve they become confused, sometimes lost and completely clueless about what to do.
I am told by Jentz and Murphy (JM) in ‘What leaders do when they don’t know what to do’ that this is normal, and that rapid change is making confusion a defining feature of management in the 21st century. Now doesn’t that sound like the story of 2020 summed up in a single sentence?
The basic premise of their writing is that “confusion is not a weakness to be ashamed of but a regular and inevitable condition of leadership. By learning to embrace their confusion, managers are able to set in motion a constructive process for addressing baffling issues.
In fact, confusion turns out to be a fruitful environment in which the best managers thrive by using the instability around them to open up better lines of communication, test their old assumptions and values against changing realities, and develop more creative approaches to problem solving.”
The problem with this ideology however is that it doesn’t help my overwhelming feelings of fear and panic which is exacerbated by a tape playing on a loop in my head saying ‘you’re supposed to know what to do, do something’. My angst is compounded by annoying motivational phrases also unhelpfully playing in my head like.
Nothing happens until something moves
The secret of getting ahead is getting started
Act or be acted upon
All these platitudes are urging me to pull something out of the bag, but I know that this is a trap. This need to forge ahead is nothing but a coping mechanism and disguise. Instead of owning the fact that I haven’t got a foggy about what to do, part of me worries that I’ll lose authority if I acknowledge that I can’t provide direction – I’m supposed to know the answers, I’m the MD! This feeling of not being in control is common for managers in ‘oh no’ situations and as a result they often start reflexively and unilaterally attempting to impose quick fixes to restore equilibrium because, lets be honest, sometimes we find it hard to resist hiding our confusion.
To admit that I am lost in an “Oh, No!” moment opens the door not only to the fear of losing authority but also to a plethora of other troubling emotions and thoughts: *Shame and loss of face: “You’ll look like a fool!” * Panic and loss of control: “You’ve let this get out of hand!” * Incompetence and incapacitation: “You don’t know what you’re doing!”
As if by saying “I’m at a loss here” is tantamount to declaring “I am not fit to lead.” Of course the real problem for me and any other leader is if they don’t admit when they are disoriented, it sends a signal to others in the organisation stating it’s not cool to be lost and that, by its very nature encourages them to hide. What’s the saying about ‘a real man never asks for direction. ..so they end up driving around in circles’.
As managers we need to embrace the confusion, show vulnerability (remember that’s not a bad word) and accept that leadership is not about pretending to have all the answers but about having the courage to search with others to discover a solution.
JM point out that “being confused, however, does not mean being incapacitated. Indeed, one of the most liberating truths of leadership is that confusion is not quicksand from which to escape but rather the potter’s clay of leadership – the very stuff with which managers can work.”
2020 has certainly been a year to remember and all indications are that the confusion which has characterised this year will still follow us into the New Year, thereby making confusion a defining characteristic of the new normal and how managers need to manage. Our competence as leaders will then surely be measured not only by ‘what I know’ but increasingly by ‘how I behave when I accept, I don’t know, lose my sense of direction and become confused.
.I guess the message for all organizational cultures going forward is that sticking with the belief that we need all-knowing, omni-competent executives will cost them dearly and send a message to managers that it is better to hide their confusion than to address it openly and constructively.
Take comfort in these wise words ‘Confusion is a word we have invented for an order not yet understood’!