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Presidents (Gratuity, Pensions and Retirement Benefits) Bill, 2016: a review

Ndulamo Anthony Morima
EAGLE WATCH

On 24th March 2016, government published the Presidents (Gratuity, Pensions and Retirement Benefits) Bill, 2016. Through this Bill, government intends to amend the Presidents (Pensions and Retirement Benefits) Act, 1998 (hereinafter referred to as the Act). It is this Bill that we wish to review in this article.

The Bill seeks to amend section 3 of the Act by introducing the payment of gratuity. It provides that “the President shall upon dissolution of Parliament, or immediately upon ceasing to hold office as such, be entitled to receive a gratuity equal to 30 percent of his or her current monthly basic salary multiplied by the number of months completed by him or her as President.”

Under the Act, “a tax free monthly pension equivalent to the monthly basic salary attached to the office at the time that that person ceased to hold office, or 80% of the incumbent President’s salary, whichever is greater, is payable. This pension benefit will also be retained under the amended Act.

The standard practice in both the private sector and the public sector is that one is entitled to either a gratuity or a pension. For instance, public servants are, upon retirement, entitled to one third of their pension as a lump sum and thereafter get monthly payments. They do not get any gratuity. It also ought to be noted that public servants, for example, make monthly contributions to their pension, with the employer also making a contribution.

Two things deserve comment with respect to the proposed amendment to section 3 of the Act. Firstly, it is inappropriate for the President to be entitled to both a pension and a gratuity, especially that in terms of both the Act and the Bill he or she does not make any contributions to any. The gratuity, pension and all the other benefits are, in terms of section 5 of the Act, a charge on the Consolidated Fund.

No doubt this places a burden on the Consolidated Fund, especially considering that in terms of section 4(1) of the Act “a surviving spouse of a person, who has held the Office of President-(a) who dies in office shall be paid a tax free monthly pension at the rate of 50 per cent of the pension that that person would have been entitled to receive if that person had retired at the date of the occurrence of the death…”

Further, a surviving spouse of a person, who has held the Office of President- “(b) who dies after ceasing to hold office shall be paid a tax free monthly pension at the rate of 50 percent of the pension that that person would have received but for the occurrence of such death”

Section 4(2) of the Act provides that “without prejudice to the provisions of subsection (1), any surviving spouse shall be paid a tax free annual pension of P 98, 268.00 provided that the President may, by order, amend this subsection by increasing the amount of pension payable thereunder.”    

The Bill also seeks to repeal section 6(2) of the Act which provides that “if a person who ceases to be President directly or indirectly holds any paid office, in the service of the State, or in the employment of any person, any pension or benefits to which such person is entitled under this Act shall be suspended for the period that that person holds such office.”

Repealing section 6(2) of the Act will in effect allow a retired President to be paid monthly pension, for example, even if he or she is employed by government, the private sector or international organizations. Clearly, this is unjust because by its very nature pension is only payable to one who is no longer in employment.

The Bill also seeks to amend the schedule of benefits provided for in terms of section 3(b) of the Act. Paragraph 2(a) of the schedule is amended by giving the retired president the option to choose between having an office, where he or she prefers, of the standard and size specified by the President or receiving office accommodation allowance using the prevailing Gaborone market rental rates.

This proposed amendment is problematic in many ways. Firstly, it allows the President to have an office outside Gaborone. The reason there is provision for an office for a retired President is to allow him or her to continue to perform some official functions and to be visited, at the office, by citizens, government officials and diplomats.

If the office is outside Gaborone it will not only be difficult for such visits, but it will also be too expensive because diplomats and government officials, for example, will have to travel long distances to meet the retired President. Providing for the office’s security will also be expensive. The former President’s security will also be at risk since few areas outside Gaborone have tight enough security for the person of a retired President.

Secondly, it gives the President an unlimited discretion to decide on the standard and size of the office. This may result in the State incurring huge expenses if the President, without justification, chooses offices of a standard and size which the State budget cannot sustain.

Thirdly, it allows the retired President to choose to receive office accommodation allowance using the prevailing Gaborone market rental rates instead of offices. As stated earlier, the purpose for this provision was to allow the retired President to have official offices from which he or she works and at which he or she can be visited. It was never meant to be an avenue for income generation by a retired President.

Paragraph 3(a) of the schedule is amended to give the retired President the option to choose between having a residential house of the standard and size specified by the President and receiving a housing allowance in lieu of the house.

This amendment also poses problems. Firstly, it gives the President an unlimited discretion to decide on the standard and size of the house. This may result in the State incurring huge expenses if the President, without justification, chooses a house of a standard and size which the State budget cannot sustain.

Secondly, a retired President’s residence should be one which can be easily visited by government officials, diplomats and citizens. If such a residence is in Serowe, for example, not only will it be inconvenient for such visits, but also such visits will be too expensive for the State.  

Also, providing for the retired President’s security will also be expensive. The former President’s security will also be at risk since few areas outside Gaborone have tight enough security for the person of a retired President.

Paragraphs 7(a) and (b) of the schedule are amended by deleting the words “in Gaborone.” This is consequential to the amendments of paragraphs 2(a) and 3(a) of the schedule which allow a retired President to have an official residence and office outside Gaborone.

The other benefits under the schedule namely staff, office equipment, medical insurance, travel and transport will remain unchanged. While I am uncomfortable with part 6(a) which provides for “one sedan (Mercedes or an equivalent or similar class of motor vehicle) since it is tantamount to giving one vehicle manufacturer an advantage of others which results in unfair competition, I am comfortable with the rest of the provisions.

In conclusion, it ought to be stated that while we have a duty to take good care of retired Presidents such care should not be too expensive for the State. After all, a retired President would have been paid while in office and should have built his or her own residence and saved for his or her retirement.

It is unfair to have so many of our people suffer in poverty and squalor when a retired President, who has, at the tax payer’s expense, lived in opulence for most of his or her life is further drowned in lavishness at retirement.

Recently, government, arguing that the country is faced with severe financial constraints, offered a mere 3 percent salary increment to public servants. Why is it that when it comes to increasing a retired President’s benefits financial constraints are not a consideration?  

Setswana says ‘mabala a kgaka a bonelwa kgakaneng’ meaning that the beauty of a guinea fowl is better seen through its young one. A parent, for example, cannot live a lavish life while his or her children live in poverty. Similarly, a President or retired President cannot live in opulence when the majority of his or her people and public servants live in poverty and squalor. Such is unconscionable.

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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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