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Why Private Bills are scarce

There is an ongoing debate on whether Botswana Members of Parliament (MPs) are policy makers/law makers or rubberstamps.

The pitfalls of Botswana’s Parliamentary democracy are widely documented and are accepted even by those who led it in the past. Two of the former Speakers of the National Assembly have penned interesting pieces on democratic deficit in the legislature.

One of the occasionally cited features of this House, which substantiates the rubberstamp argument, is the fact that this House seldom debates and passes Private Members Bills. Parliament hardly initiates policy documents or proposals which impact on public policy.

It is very rare that executive proposals are declined by this parliament. Why are Private Bills rare in Parliament? Is the phenomenon unique to Botswana?

A Bill is a draft legislative proposal which if accepted by the House becomes a law, after executive assent. There are usually few types of Bills; money Bills/ financial Bills, ordinary Bills and constitutional amendment Bills.

If Parliament sanctions borrowing of money by the government from International Financial Institutions such as the World Bank or International Monetary Fund (IMF) or African Development Bank or approves local borrowing from a local bank or accepts a loan from a foreign government, or endorses a loan guarantee, or deals with legal proposal on taxation or appropriation from the consolidated fund, such Bills can be categorized under money or financial Bills.

Constitutional amendment Bills deal with changes to the mother of all laws, the constitution. It depends on whether a proposed change is for an entrenched clause or not. If it’s not, it may require just a simple majority of the votes, if it is, it may require a referendum and or two-thirds majority, depending on jurisdiction.

In Botswana, some changes have been made recently, like the increase of specially elected MPs, which didn’t require a referendum or two-thirds majority of the vote.

A Private Members Bill in a parliamentary system, such as that of Botswana legislature, is a Bill or a proposed law tabled and or presented in the House by an individual legislator who is not a Minister and is not acting on behalf of the executive arm. All the Bills, government or private, must conform with Section 88 and 89 of the constitution.

Section 88 deals with financial implications of Bills and provides that they must be sanctioned by the President, through a Vice President or a Minister. Section 89 deals with gazetting of the Bills and other qualification standards.

Section 89 is a very weighty provision in that Parliament can’t just decide to make laws which have financial implications without the input of the executive. The provision takes away Parliament’s independence and presuppose that it is not competent to make financial laws without guidance of the executive.

Most Bills that are debated and passed are government-initiated Bills. They’re either amendments to existing Bills or new legislation and or re-enactment. In fact, most of Parliament Business is government rather than private. Private Business, such as questions, help to hold the executive accountable.

Motions are routinely a waste of Parliament time; the executive seldom implement resolutions emanating from motions. They actually turn the House into a frivolous talk show. The objective of motions for most MPs, it would appear, is for the public to notice that there is an issue of public importance that their MP has raised or proposed a solution to.

The executive in Botswana is very allergic to advice that comes from outside it. It seldom accepts it, if it does appear like it’s listening, it rarely implements such resolutions. Even if these proposals emanate from the backbench, especially if they are without initial blessing of the executive, they are either rejected in the House or are accepted on the surface but ignored for implementation.

During the 10th Parliament there were few Private Bills including on Freedom of Information and tenure of MPs. During the 11th Parliament, six Private Bills were presented and the House accepted only one.

These included three Bills on conditions of service of members of the security organs, proposed repeal of the Media Practitioners Act, Marriage Amendment Act Bill and Electoral Act Amendment (repeal) Bill.

Parliament uncharacteristically accepted the Bill by an opposition MP to repeal a law that introduced Electronic Voting Machine (EVM). It was fortuitous. The executive had no choice, there was a law suit which sought to challenge the constitutionality of the EVM and the government lost an opportunity to timely procure the machines.

It was not possible that a procurement could proceed because an opposition party, Botswana Congress Party, had interdicted the planned purchase of the appliances from India pending finalization of the case.

The executive, it must be stated, didn’t accept the proposal because it believed in the principle of non-usage of the machines for voting, but because they had no choice because they couldn’t implement the EVM law before the 2019 elections, they had to revert to the old law.

In fact, the executive preposterously attempted to bring a similar proposal around the same time, so that it could reject one brought by the opposition and approve its own. Someone must have whispered to them that it was hopelessly ridiculous to bring basically one Bill twice to the House.

As said above, parliament or the ruling party majority, rejected a Bill to repeal the Media Practitioners Act brought by the opposition in April 2019. Shortly afterwards, the ruling party told Batswana during the 2019 election campaign that the new administration detests the law and sought to repeal it.

When commemorating Press Freedom Day in 2020, the President indicated his plans to repeal the draconian media law. However, no one reminded him that it is the same law that his government refused to remove when it was asked to do so by the opposition, a year after he assumed Office.

At the time of making the promise of repealing the law, the President should to have known that the opposition had already Gazetted the Bill and presented it for first reading and ready for a debate in July 2020. It would be interesting to see what will happen, whether the ruling party will reject it and bring its own repeal Bill.

Apart from not being independent, that is its dependency on the executive for budget and staff, Parliament is legally advised by the Attorney General, the same officer who sits in cabinet and the Judicial Service Commission.

Parliament is practically legally advised by a Parliamentary Counsel (PC), who is an officer seconded from the civil drafting division of the government law firm. PC is assisted by an assistant who is also a lawyer.

He or she can be transferred at any time by the principals at the Attorney General. There are only two legal officers who service Parliament. PC advise almost all Parliamentary Committees. His/her office legally assist all MPs.

It does legal research and drafting for Parliament. The duo are employees of the executive and not Parliament. They are deployed by the executive to Parliament. Naturally they’d be inclined to bend towards the executive.

Two officers who held the position in the past left unceremoniously, basically kicked out, for showing signs of independence.

Drafting a law is a rare skill. Ordinary MPs can’t do it alone. Most MPs are not lawyers and those that are lawyers, don’t have legislative drafting skills. They need a fully-fledged Parliament legal division to assist them. Most MPs rely on lawyers sympathetic to their objectives or lobbyists with access to legal counsel.

For example, NGOs such as the Southern African AIDS Trust (SAT), were influential in lobbying for the ‘Romeo and Juliet’ clause in the Penal Code when the age of consent was raised from 16 to 18 years. The NGO also assisted with drafting of the Bill on protecting children under 18 years from entering into marriage contacts. The Bill was deferred during the 11th parliament.

Parliament, until it becomes independent and well-resourced with skilled personnel, will remain feeble. Private Bills will continue to be a rarity. MPs can’t draft legal proposals on their own, it’s a highly technical process.

Without a well-functioning office for the purpose, equipped with adequate number of skilled lawyers, it’s difficult to see Private Bills being debated or passed.

Whilst even in other democracies Private Bills are rare, they are important in putting certain issues on the agenda of public discourse. They are also a way to get the executive to pay attention to some important issues needing legislative reform.

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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

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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