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Declaration of Assets & Liabilities: non-negotiable tenets (Part 1)

NDULAMO ANTHONY MORIMA
EAGLE WATCH

Since government tabled the Declaration of Assets & Liabilities Bill before Parliament, there has been stark division between the ruling Botswana Democratic Party (BDP)’s legislators on the one hand and those from the Opposition.

In response to this, some Batswana are surprised because it appears, in view of the narrative created by the BDP, that the Opposition is opposed to a Bill it has long advocated for simply because it has been brought by the BDP. There is, in fact, a more troubling narrative, still perpetrated by the BDP, namely that some in the Opposition are opposed to the Bill because they are involved in corruption, the subject of such law or system which is referred to as Asset Declaration (AD) in some jurisdictions.

Unfortunately, this narrative resonates with some, especially with respect to the Leader of the Opposition, Honourable Advocate Duma Boko, because, of late, he has been visited by the Botswana Unified Revenue Service (BURS) officials regarding his taxes and assets.
This is not surprising because, as observed by Ruxandra Burdescu et al in The United Nations Convention Against Corruption (UNCAC) conference edition titled ‘Income and Asset Declarations: Tools and Trade Offs’, “…the process of developing Asset Declaration (AD) systems is often highly politicized…”

The question is: is opposition to the Bill in its current form justified? In order to answer this question, we, this week, without reference to the Bill itself, discuss what we refer to as the ‘non-negotiable tenets of a Declaration of Assets & Liabilities law’. God willing, next week, we critique the Bill against the said tenets, of course taking Botswana’s peculiar socio-economic and political circumstances into consideration. In doing so, we shall not lose sight of the fact that there are universal standards in respect of such law.

In the final part of this series, we shall compare Botswana’s Bill with that of selected countries, with examples taken from various continents, not just Africa. Ruxandra Burdescu et al, from whom we shall draw extensively in this article, state that “The United Nations Convention Against Corruption (UNCAC) has focused attention on corruption’s corrosive effects and provided a framework for action for countries to tackle this scourge…”

They continue to say “…One of the most important elements of this framework is the process of building integrity and preventing corruption. Developing effective disclosure systems and integrating them into wider anti-corruption programs are critical elements in that process. Income and Asset Declarations (IAD) systems in particular serve an important role…”. From this, it is submitted that one of the non-negotiable tenets of a Declaration of Assets & Liabilities law is its ability to effectively combat the scourge of corruption.

The other is its ability to build integrity. Not only that. It must, of course as read with other laws, provide for and/or enable effective disclosure systems and integrating them into wider anti-corruption programs. Ruxandra Burdescu et al argue that “…When such systems (i.e. IAD) are linked to training and enforced codes of conduct, they can be a powerful tool to prevent corruption and detect the theft of public assets…”.

From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is provision for effective codes of conduct, whose object is avoidance of corruption. Afterall, the purpose of a law on Declaration of Assets and Liabilities is to avoid corruption, the rationale being that if one knows that his or her assets and liabilities are public knowledge, they are unlikely to be corrupt for they would know that it will be easily detected because their asset and liabilities baseline is already known.  

Ruxandra Burdescu et al continue to say “…Although the concept of Income and Asset Declaration itself is not novel, countries are continuously finding new ways to improve their systems: creating and using useful software to verify information declared; applying new training techniques to reach civil servants; conducting forceful communications campaigns to foster transparency…” From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is provision for use of useful software to verify information declared.

Not only that. It is critical for the law to provide for the application of new training techniques to reach civil servants, for instance, the ones who will be involved in the enforcement of the law. As is the case with all laws, the law on Declaration of Assets and Liabilities can only thrive if it has public support and the citizenry has confidence in it. It is for this reason, we submit, that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is a provision for conducting effective communication campaigns to foster transparency.

Ruxandra Burdescu et al continue to say “…Although there may be different purposes for an Asset Declaration (AD) system, the chief determinant of how an AD system is designed is whether it focuses on combating illicit enrichment, the identification and prevention of Conflicts of Interest (COI), or both…” From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is that the persons to whom declaration is made should be impartial.

Ruxandra Burdescu et al continue to argue that “…Granting public access to asset declaration information is another important dimension of AD regimes that can enhance both their effectiveness and their credibility…” According to Ruxandra Burdescu et al “Many countries are struggling with whether and how to make asset declaration information accessible to the public; the central issue at stake being whether or not public access to this information violates the privacy of public officials, or poses a threat to their security…”

We submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is a provision that makes asset declaration information accessible to the public for that, in our view, is the essence of declaration. It is our considered view that for the declaration system to be credible, and to help build the trust of citizens in their government the declared information must be made public, and not kept confidential.

It is needless to state that to meet the objectives of asset and liabilities declaration, the implementing agencies must not only be administered professionally, but should also have sufficient independence to fulfil their mandates, and be subject to sufficient oversight to ensure that they do not abuse their authority. It is also needless to state that Civil society organizations and the media can play a vital role in ensuring that the declaration process meets the desired standards.

It is in this regard that we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is the passage of a law on Freedom of Access to Information which will allow the media and Civil society to play such a watch dog role. Though the extent of a law on Declaration of Assets and Liabilities depends partly on the resources available; levels of perceived risk in different areas of public administration, and the overall objectives of the law itself, Ruxandra Burdescu et al posit that “…experience in different countries has shown the need for governments to weigh certain trade-offs so as to craft an optimal approach to meeting AD objectives within the particular institutional and cultural context in which the system operates…”

According to them, “…facing trade-offs can result, for example, in an approach that limits the scope of coverage of the system, to target higher-risk positions, and not overstretch the capacity of the implementing agency…” From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is its target of a few officials with high levels of perceived risk in different areas of public administration.

Lastly, according to Ruxandra Burdescu et al, “It is also important that countries apply and enforce appropriate and proportionate sanctions. To meet this standard, sanctions and their effects need to be considered across multiple axes: what failures should face sanctions? What types of sanctions should be available? Fines, administrative sanctions, and/or criminal sanctions? How severe should each of these sanctions be? How do these sanctions reinforce the specific objectives of the AD system as a whole? Are the chosen sanctions enforceable?

From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is the provision, in the law, of proportionate penalties for the various offences provided by the law.
 

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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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