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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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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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