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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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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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The Era of “The Diplomat”

30th November 2020
FATED “JIHADI” JOHN

Youngest Maccabees scion Jonathan takes over after Judas and leads for 18 years

Going hand-in-glove with the politics at play in Judea in the countdown to the AD era, General Atiku, was the contention for the priesthood. You will be aware, General, that politics and religion among the Jews interlocked. If there wasn’t a formal and sovereign Jewish King, there of necessity had to be a High Priest at any given point in time.

Initially, every High Priest was from the tribe of Levi as per the stipulation of the Torah. At some stage, however, colonisers of Judah imposed their own hand-picked High Priests who were not ethnic Levites. One such High Priest was Menelaus of the tribe of Benjamin.

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Land Board appointments of party activists is political corruption

30th November 2020

Parliament has rejected a motion by Leader of Opposition (LOO) calling for the reversing of the recent appointments of ruling party activists to various Land Boards across the country. The motion also called for the appointment of young and qualified Batswana with tertiary education qualifications.

The ruling party could not allow that motion to be adopted for many reasons discussed below. Why did the LOO table this motion? Why was it negated? Why are Land Boards so important that a ruling party felt compelled to deploy its functionaries to the leadership and membership positions?

Prior to the motion, there was a LOO parliamentary question on these appointments. The Speaker threw a spanner in the works by ruling that availing a list of applicants to determine who qualified and who didn’t would violate the rights of those citizens. This has completely obliterated oversight attempts by Parliament on the matter.

How can parliament ascertain the veracity of the claim without the names of applicants? The opposition seeks to challenge this decision in court.  It would also be difficult in the future for Ministers and government officials to obey instructions by investigative Parliamentary Committees to summon evidence which include list of persons. It would be a bad precedent if the decision is not reviewed and set aside by the Business Advisory Committee or a Court of law.

Prior to independence, Dikgosi allocated land for residential and agricultural purposes. At independence, land tenures in Botswana became freehold, state land and tribal land. Before 1968, tribal land, which is land belonging to different tribes, dating back to pre-independence, was allocated and administered by Dikgosi under Customary Law. Dikgosi are currently merely ‘land overseers’, a responsibility that can be delegated. Land overseers assist the Land Boards by confirming the vacancy or availability for occupation of land applied for.

Post-independence, the country was managed through modern law and customary law, a system developed during colonialism. Land was allocated for agricultural purposes such as ploughing and grazing and most importantly for residential use. Over time some land was allocated for commercial purpose. In terms of the law, sinking of boreholes and development of wells was permitted and farmers had some rights over such developed water resources.

Land Boards were established under Section 3 of the Tribal Land Act of 1968 with the intention to improve tribal land administration. Whilst the law was enacted in 1968, Land Boards started operating around 1970 under the Ministry of Local Government and Lands which was renamed Ministry of Lands and Housing (MLH) in 1999. These statutory bodies were a mechanism to also prune the powers of Dikgosi over tribal land. Currently, land issues fall under the Ministry of Land Management, Water and Sanitation Services.

There are 12 Main Land Boards, namely Ngwato, Kgatleng, Tlokweng, Tati, Chobe, Tawana, Malete, Rolong, Ghanzi, Kgalagadi, Kweneng and Ngwaketse Land Boards.  The Tribal Land Act of 1968 as amended in 1994 provides that the Land Boards have the powers to rescind the grant of any rights to use any land, impose restrictions on land usage and facilitate any transfer or change of use of land.

Some land administration powers have been decentralized to sub land boards. The devolved powers include inter alia common law and customary law water rights and land applications, mining, evictions and dispute resolution. However, decisions can be appealed to the land board or to the Minister who is at the apex.

So, land boards are very powerful entities in the country’s local government system. Membership to these institutions is important not only because of monetary benefits of allowances but also the power of these bodies. in terms of the law, candidates for appointment to Land Boards or Subs should be residents of the tribal areas where appointments are sought, be holders of at least Junior Certificate and not actively involved in politics.  The LOO contended that ruling party activists have been appointed in the recent appointments.

He argued that worse, some had no minimum qualifications required by the law and that some are not inhabitants of the tribal or sub tribal areas where they have been appointed. It was also pointed that some people appointed are septuagenarians and that younger qualified Batswana with degrees have been rejected.

Other arguments raised by the opposition in general were that the development was not unusual. That the ruling party is used to politically motivated appointments in parastatals, civil service, diplomatic missions, specially elected councilors and Members of Parliament (MPs), Bogosi and Land Boards. Usually these positions are distributed as patronage to activists in return for their support and loyalty to the political leadership and the party.

The ruling party contended that when the Minister or the Ministry intervened and ultimately appointed the Land Boards Chairpersons, Deputies and members , he didn’t have information, as this was not information required in the application, on who was politically active and for that reason he could not have known who to not appoint on that basis. They also argued that opposition activists have been appointed to positions in the government.

The counter argument was that there was a reason for the legal requirement of exclusion of political activists and that the government ought to have mechanisms to detect those. The whole argument of “‘we didn’t know who was politically active” was frivolous. The fact is that ruling party activists have been appointed. The opposition also argued that erstwhile activists from their ranks have been recruited through positions and that a few who are serving in public offices have either been bought or hold insignificant positions which they qualified for anyway.

Whilst people should not be excluded from public positions because of their political activism, the ruling party cannot hide the fact that they have used public positions to reward activists. Exclusion of political activists may be a violation of fundamental human or constitutional rights. But, the packing of Land Boards with the ruling party activists is clear political corruption. It seeks to sow divisions in communities and administer land in a politically biased manner.

It should be expected that the ruling party officials applying for land or change of land usage etcetera will be greatly assisted. Since land is wealth, the ruling party seeks to secure resources for its members and leaders. The appointments served to reward 2019 election primary and general elections losers and other activists who have shown loyalty to the leadership and the party.

Running a country like this has divided it in a way that may be difficult to undo. The next government may decide to reset the whole system by replacing many of government agencies leadership and management in a way that is political. In fact, it would be compelled to do so to cleanse the system.

The opposition is also pondering on approaching the courts for review of the decision to appoint party functionaries and the general violation of clearly stated terms of reference. If this can be established with evidence, the courts can set aside the decision on the basis that unqualified people have been appointed.

The political activism aspect may also not be difficult to prove as some of these people are known activists who are in party structures, at least at the time of appointment, and some were recently candidates. There is a needed for civil society organizations such as trade unions and political parties to fight some of these decisions through peaceful protests and courts.

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