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Jeff Ramsay

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.

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".

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.

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.

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.

Yet, repeated attempts to bribe Sekgoma into renouncing his claim to bogosi failed. His defiance was thus becoming both a legal and political embarrassment.

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.

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.

After these reversals, Sekgoma decided to send Charles Riley to London to recruit lawyers to bring his case before the British Courts.

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.

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:

"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."

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:

"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."

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."

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.

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.

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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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