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Is BMD’s expulsion from UDC viable?

Ndulamo Anthony Morima

It is common knowledge that the seven-day ultimatum the Umbrella for Democratic Change (UDC) had given to the Botswana Movement for Democracy (BMD) to show cause why it should not be expelled has lapsed without the BMD showing such cause, but it has not been expelled as threatened.

Rather, on the day the ultimatum lapsed, the UDC extended the ultimatum to 18th October 2018, a decision which has made many rebuke it, especially its president, Advocate Honourable Duma Boko, for indecision. This, they say, is the very indecisiveness which has brought the UDC to the calamitous status it is in today.

In my view, this extension kicking the can down the road, especially considering that since its suspension, the BMD has, through the media and at political rallies, stated that it does not recognise its suspension since it is unlawful and without force and effect. Not only that. The BMD is also reported to have refused to honour a meeting called by the UDC on the last day of the ultimatum.

One would have expected the BMD to either comply by responding to the charges levied against it or approaching the courts for an order setting aside UDC’s decision, but it did neither. The BMD clearly decided to wait for the UDC to blink first, thereby exposing its vulnerability and the strategy seems to have worked since the UDC, perhaps because it is aware of the loopholes in its case, blinked first, something which has, no doubt, emboldened the BMD.

Judging by the way the BMD has been defiant in relation to its suspension as well as its refusal to meet the UDC, it is unlikely that it will comply with the deadline of 18th October 2018. Clearly, post 18th October 2018, the UDC, which has lost credibility because of the indecisive manner in which it has handled the BMD saga, is expected to expel the BMD. The question is: is it legally and politically viable for the UDC to expel the BMD? It is this question that this article grapples with.

First, legal viability. This question is cardinal considering that some, including the BMD leadership, have opined that the UDC Constitution of 2012 does not provide for the expulsion of a group member. Clause 24.2.1 of the 2012 UDC Constitution provides that “ the National Congress(NC) or the National Executive Committee (NEC) may suspend or expel a group member for (i) acting against the interests of the Umbrella, (ii) Failing to attend more than two consecutive meetings of the NEC without an apology acceptable to the NEC or (iii) failing to pay its group membership fees.  

Clause 24.2.2 provides that “no such suspension or expulsion shall have effect unless the NEC (i) has notified the affiliate in writing of the reasons for the suspension or expulsion and (ii) has granted the affiliate permission to present its case to the NEC. It is clear in terms of clause 24.2.1 that, as a group member, the BMD can be suspended, as it has been, or expelled, as it is likely to be, by either the NC or the NEC. Therefore, the notion that the UDC Constitution does not provide for the suspension or expulsion of a group member has no basis.

For a group member’s suspension or expulsion to be lawful, at least from a procedural point of view, the group member has to have been notified of the reasons for the suspension or expulsion and been granted the permission to present its case to the NEC. It is common cause that the BMD has been notified of the reasons for its suspension, since it has been charged with bringing the UDC into disrepute by “failing to cooperate with the Botswana National Front (BNF) to resolve the deadlock over Moshupa/Manyana and Mmopane/Lentsweletau constituencies.

It has also been charged with failure to accept that its split has weakened its capacity to deliver in the constituencies allocated to it, arousing confusion and anxiety about membership status of Botswana Congress Party (BCP) in the UDC, and negative resentment countrywide of the its leader, Advocate Sydney Pilane, as well as uncontrollable outbursts in the media, and his divisive tendencies.

Clearly, the BMD cannot be heard to say it has not been given the reasons of its suspension. That the reasons are invalid, as it has asserted, is a different issue. It is an issue which it should have addressed by making submissions to the UDC’s NEC as it has been requested to do, but failed and/or neglected and/or refused to do by the given deadline.

It is an issue which the BMD has been given a further opportunity to address by the 18th October 2018 though it seems unlikely that it will comply with the extension of the ultimatum. The BMD leadership is on record that it does not recognise the decision to suspend it since such decision was taken in its absence and without it been accorded a hearing despite the fact that the decision is adverse to it.

The BMD has also demanded to be furnished with the minutes or record of the proceedings of the meeting as well as an attendance register of those who participated in the meeting. In response, the UDC has argued that it would have been procedurally flawed for the BMD to participate in the meeting since the sole purpose for the meeting concerned it and it had to recuse itself from the meeting, claiming that that had in fact been agreed to at a prior meeting which the BMD attended.

The UDC has further stated that the meeting at which the decision to suspend the BMD was taken was constitutional since it had been convened in terms of the Constitution, and the meeting had the requisite quorum of at least half of the group members in good standing and at least half of the delegates who are members of the group members in terms of clauses and respectively.

Should the UDC expel the BMD and the latter challenge the expulsion at court, at least five question will arise. The first question would be whether the meeting at which the decision to suspend the BMD was taken was constitutional. The second question would be whether BMD was validly notified of the reasons for its suspension. The third question would be whether BMD was granted the permission to present its case to the NEC.

With respect to the second and third questions a fourth question would be when should the BMD have been notified of the reasons for its suspension and granted the permission to present its case to the NEC? Should it have been prior to the suspension or after the suspension? The fourth question gives rise to the fifth question, namely: in what manner should the BMD have been allowed to present its case to the NEC? Should it have been in writing or oral?

Without full knowledge of the facts surrounding the UDC/BMD saga nobody can know for certain who between the UDC and BMD would emerge victorious should litigation ensue. What is certain is that while in law there will be a victor, in fact there can be no victor. There is no doubt that if a legal battle commences it will be protracted, something which can only result in some Opposition supporters defecting to the ruling Botswana Democratic Party (BDP).

One thing that is clear is that the relationship between the UDC and BMD leadership has broken down irretrievably such that no matter happens legally they cannot work together. This brings me to the question whether BMD’s expulsion from the UDC is viable. In my view, while it may be legally viable, it is not politically viable, especially considering the protracted legal battle that will ensue therefrom, and the fact that the next general elections are only one year away.

Have you thought of the possibility of the BMD winning the legal battle, but remains alone or perhaps with the Botswana Peoples’ Party (BPP) in the UDC because the Botswana National Front (BNF) and the Botswana Congress Party (BCP) will certainly leave the UDC? Imagine if that happens five months before the general elections. Will the BNF/BCP coalition have enough time to regroup and mobilize its base for the elections? I believe not.

It is for this reason that I believe that instead of expelling the BMD and engaging in a protracted legal battle, the BNF and BCP should, as resolved at their conferences in July this year, leave the UDC and enter into a bilateral relationship or establish a new Umbrella which may in fact attract the Alliance for Progressives (AP). In any case, the legal existence of the UDC is uncertain considering the Registrar of Societies’ recent refusal to register its amended Constitution claiming, among other reasons, that he has no jurisdiction to register it or regulate the UDC.

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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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