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Registrar’s decision: blessing in disguise for the UDC

Ndulamo Anthony Morima

After a long wait, this week, the Registrar of Societies communicated his decision to refuse to accept the proposed amendments to the constitution of the Umbrella for Democratic Change (UDC).

Contrary to many people’s expectations, the reason for the declination was not the objection submitted to the Registrar by the Botswana Movement for Democracy (BMD) and Botswana People’s Party (BPP), but that the UDC is not a political party, but a coalition of political parties. Expectedly, the Registrar’s decision has elicited mixed reactions from the public and the Opposition. While some think that the Registrar’s decision smells of political influence, others believe the Registrar is merely doing his job.

Speaking to Duma fm’s Donald Badisa Seberane on 16th August, the UDC Publicity Secretary, Moeti Mohwasa, wondered why the Registrar did not decline to register the UDC in 2014 and is only raising issues today less than a year before the general elections. Mohwasa also wondered why, in 2014, the Independent Electoral Commission (IEC) recognised the UDC as a political party, registering its logo and its candidates for both local and national elections if it was not a political party as the Registrar purports.

He also wondered why Parliament has, since the 2014 general elections, recognized the UDC as an Opposition political party in Parliament, recognizing its president, Advocate Honourable Duma Boko, as the Leader of the Opposition in Parliament and its Members of Parliament (MPs) as such. But, does the fact that the Registrar accepted the registration of the UDC in 2014 mean that when he, today, realizes that an error was committed, he should not seek to correct it? Should an administrative functionary be bound by an earlier decision even if it is wrong?

In my view, the Registrar, and indeed any government functionary, has a legal duty to correct its decision if, upon new insight, it realizes that it had erred. Even courts of law set aside decisions they earlier took in error. Other people opine that the Registrar had no business in going beyond the complaint submitted to him by the BMD and the BPP, namely the lack of agreement on the amendments by the UDC’s contracting partners.

According to them, the fact that the Registrar went beyond the complaint shows that he has a political agenda, that being to destabilize the UDC and ensure the Botswana Democratic Party (BDP)’s victory in 2019. A government functionary whose duty is the protection of the Constitution of the country and the observance of all the laws of the land has a duty to, upon realization of an anomaly, correct it despite the fact that it has not been brought to him by any person.

Therefore, that the Registrar registered the UDC in 2014 is neither here nor there. The same applies to the fact that the IEC and Parliament have always recognised the UDC. Similarly, the fact that in declining the UDC’s amendments the Registrar acted on his own motion is neither here nor there. It does not make the decision less valid or unlawful.

In my view, considering the woes that the UDC has suffered since the 2014 general elections, largely because of the conflicts within the BMD, the Registrar’s decision may be a blessing in disguise for the UDC or the Botswana National Front (BNF) and the Botswana Congress Party (BCP). It would be recalled that at their July conferences the BNF and the BCP resolved to enter into a bilateral relationship for the 2019 general elections if the UDC would not have resolved its problems by mid-August this year.

At the time, I opined that the BNF and BCP had caucused on the resolutions prior to their conferences. I also opined that the BNF and BCP made the resolution knowing full well that it is unattainable so that it uses the failure to resolve the UDC debacle as an excuse for leaving the UDC. This, in my view, was a way of dumping the recalcitrant BMD and its ally the BPP. Arguably, it was also a way of opening up a door to work with the Alliance for Progressives (AP), something which would not happen for as long as the BMD and the BPP are part of the UDC.

It is in this regard that I am of the view that the Registrar’s refusal to accept the amendments to the UDC constitution is a blessing in disguise for the UDC or the BNF and BCP. The BNF and BCP’s claims of being heartbroken as a result of the decision may, therefore, not be genuine. If the reason for the Registrar’s refusal were the objections from the BMD and BPP there would be ire tractable conflict between the BNF and BCP on the one hand and the BMD and BPP on the other.

These conflicts would likely result in litigation, with winners and losers, something which would further polarize the UDC contracting partners, resulting in the inevitable collapse of the UDC possibly before the 2019 general elections. If the Registrar had accepted the amendments, the BMD and the BPP were likely going to approach the courts to review his decision, something which would result in a protracted legal battle much to the delight of the BDP which is also currently suffering internal strife because of the Khama and Masisi feud.

In my view, the Registrar’s decision gives an easy and respectable escape for the BNF and BCP. They can easily convince their members that given the time remaining before the 2019 general elections challenging the Registrar’s decision in the courts would delay their campaigns. They can also manipulate their members by claiming, falsely of course, that even if they went to the courts they are unlikely to succeed because the courts are biased in favour of the ruling BDP. Some have already suggested this by claiming that the Registrar made this decision because of political influence.  

After all, the BNF and BCP leadership already have the mandate to enter into a bilateral relationship for the 2019 general elections if the UDC problems are not resolved by mid-August, which deadline has lapsed. In any event, there are those who believe that for as long as Advocate Sydney Pilane, whom they accuse of being a BDP operative planted to destabilize the Opposition, is part of the UDC it cannot win the 2019 general elections.

It would, therefore, be easy for the BNF and BCP leadership to convince such people to leave the UDC and enter into a bilateral relationship which is after all a resolution of the parties’ respective conferences. It, however, remains to be seen how the UDC will react to the Registrar’s decision.

Already, the fact that about two days after the decision was taken there was no emergency meeting called to discuss the matter shows that it may not be that much of a concern to the UDC or at least the BNF and BCP.If the matter were indeed taken seriously by now an emergency Central Committee meeting would have been called; press releases would have been issued and legal action against the Registrar would have been threatened.      

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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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