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Botswana’s tribal equality: 20 years after the Balopi Commission and Kamanakao case II)

Ndulamo Anthony Morima
Eagle WATCH

Last week, we made an exposition of the circumstances leading to the Balopi Commission (“the Commission”)’s establishment and its terms of reference and recommendations.

We also made an exposition of the Kamanakao I case, giving a summary of the issues which were before court; the submissions by the parties and the court’s decision.This week, we shall make a critique of Botswana’s tribal equality, considering the extent to which government has implemented the recommendations of the Commission.

The Commission’s terms of reference were threefold, namely "(a) to review sections 77, 78, and 79 of the Constitution of Botswana and to seek a construction that would eliminate any interpretation that renders the sections discriminatory; (b) to review and propose the most effective method of selecting members of the "Ntlo ya Dikgosi" House of Chiefs; and (c) to propose and recommend measures to enhance the efficiency and effectiveness of the House of Chiefs.”

As stated before, one of the Commission’s recommendations was that even if sections 77, 78 and 79 are not unfair, they, and any other mention of a specific tribe, should be removed from the Constitution due to the citizens' perception that they are discriminatory. The Constitution of Botswana (“the Constitution”) was indeed amended to give effect to this recommendation. Prior to the amendment, section 77(1) provided for a House of Chiefs consisting of eight ex-officio Members; four Elected Members; and three Specially Elected Members.

Section 77(1)(a), as amended, established Ntlo ya Dikgosi in place of the House of Chiefs as per the Commission’s recommendation. It also provides for the composition of Ntlo ya Dikgosi. While this constitutional amendment must be commended for establishing Ntlo ya Dikgosi and broadening its composition to cover all geographic regions in the country, it must be condemned for mentioning specific tribes by name and not mentioning others.

The Commission had specifically recommended that in order to address citizens' perception that sections 77,78 and 79 are discriminatory, mention of a specific tribe should be removed from the Constitution or anywhere else it appears. Interestingly, there is mention of all the tribes except those that had been complaining of marginalisation, namely Basubiya, Wayeyi, Bakalanga, Basarwa, Bakgalagadi, Baherero, Bambukushu, etc.

Basubiya and Wayeyi are subsumed under Chobe and Goo Tawana respectively. Bakalanga, Basarwa and Bakgalagadi are subsumed under North East District, Ghanzi District and Kgalagadi District respectively.  Section 77(1) (b), as amended, provides for five persons who shall be appointed by the President. This is another malady because it allows for the politicisation of Bogosi. Like every politician, the President is likely to appoint those who are aligned to his political party.

Section 77(1) (c), as amended, provides for such number of persons, not being more than 20, as may be selected under section 78(4)(c) of the Constitution. Section 78(4) (c) of the Constitution provides that members from Ghanzi, Chobe, Kgalagadi and North East shall not be designated to Ntlo ya Dikgosi according to the established norms and practices of those areas.

It is only Bamangwato, Bakwena, Bangwaketse, Batawana, Batlokwa, Bakgatla, Barolong and Balete who have the right to designate their Dikgosi according their established norms and practices. This implies that the other tribes have no norms and practices worthy of designating their own Kgosi. Because Basarwa, Bakgalagadi, Basubiya and Bakalanga are not bestowed with the right to designate their Dikgosi according to their own established norms and practices, they, in terms of section 78, as amended,  select a Member to Ntlo ya Dikgosi by election or in such other manner as the Regional Electoral College may agree. Invariably, such selection is done through elections.

In this way, they, in my view, select a regional representative rather than a Kgosi. Not only does this lower the tribes’status; it also increases the chances of politicisation of Bogosi because where votes count, politics invariably creeps in. The second recommendation of the Commission was that the word "chief" in the Constitution, a remnant of the British monarchy, should be replaced with the word Kgosi. This has been implemented.

On 30th April 2008, the Bogosi Act, Cap. 41:01 (hereinafter referred to as the Bogosi Act) came into effect. Through section 29, the Bogosi Act repealed the Chieftainship Act, Cap. 41:01 which was blamed by many for being the enabler for tribalism. The Bogosi Act replaced the word "chief"  with the word “ HYPERLINK "https://en.wikipedia.org/wiki/Kgosi" o "Kgosi" Kgosi” as recommended.  

The third recommendation of the Commission was that the House of Chiefs of Botswana should continue to exist as it represents the country's unity, and it should be renamed Ntlo ya Dikgosi.Indeed, the House of Chiefs has been retained and renamed Ntlo ya Dikgosi. Sections 77, 78 and 79 of the Constitution, as amended, regulate the establishment and composition of Ntlo ya Dikgosi, designation and selection of Members to Ntlo ya Dikgosi and the qualifications for membership of Ntlo ya Dikgosi.

The fourth recommendation of the Commission was that the members of the House of Chiefs(now Ntlo ya Dikgosi) should not be allowed to join  "List of political parties in Botswana" political parties. This, too, has been implemented.Section 79 (4) of the Constitution, as amended, provides that “a Member of the Ntlo ya Dikgosi shall not, while he or she is such a Member, participate in party politics, but active participation in politics prior to being a Member of the Ntlo ya Dikgosi shall not bar any person from being such a Member.

The fifth recommendation of the Commission was that members of the House of Chiefs (now Ntlo ya Dikgosi) should be chosen based on tribal territorial claims, creating geographically based representation rather than the old method of specifying which tribes can have ex officio members in the House. As argued above, this has neither brought tribal parity nor ended the perception of tribal discrimination because, in essence, it is largely the so-called minority tribes who choose their representatives to Ntlo ya Dikgosi based on tribal territorial claims.

On the other hand, the so-called main tribes have their Dikgosi, who are Dikgosi by birth and whom they designate according to their own established norms and practices, as their representatives in Ntlo ya Dikgosi. Not only that. The so-called minority tribes are not allowed to designate their representatives to Ntlo ya Dikgosi according to their established norms and practices. This privilege is reserved for the so-called main tribes.

Of course, the aforesaid shortcomings notwithstanding, government has, through amending sections 77,78 and 79 of the Constitution, as well as repealing the Chieftainship Act and enacting the Bogosi Act, significantly moved Botswana towards tribal equality. In my view, legislative amendment needs to be made to make mention of all our tribes in the Constitution, the Bogosi Act and any other relevant legislation.

Also, legislative amendment needs to be made to provide for the same method for the designation of a Kgosi for all tribes. If designation is to be according to established norms and practices of a tribe, that should apply for all tribes. On the contrary, if designation is to be through elections, that should apply for all tribes. I am, however, hesitant to endorse this method for Dikgosi are born, not voted into office.

It is incontrovertible though that compared to the period before the amendment of sections 77,78 and 79 of the Constitution, and the repeal of the Chieftainship Act and enactment of the Bogosi Act, tribal equality has improved, and we have a more cohesive nation. This, in my view, is evidenced by the fact that such tribal pressure groups as Kamanakao Association, Special Promotion of Ikalanga Language and First People of the Kalahari are almost non-existent.  

Of course, especially during the heat of the 2019 general elections, the rivalry between former president Khama and President Masisi threatened to open the tribal wounds between Bangwato and other tribes, but such wounds have not festered beyond the elections.  

*Ndulamo Anthony Morima (LLM, LLB) is the Managing Partner of Morima Attorneys

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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

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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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