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LOO’s suspension undemocratic

Parliament has begun its meeting with some brouhaha and pandemonium. The Leader of Opposition (LOO) has been suspended for a week following his refusal to withdraw his statement in which he made assertions of corruption against the ruling party functionaries and President Masisi’s relative.

On the day, which was the second day of Parliament sitting since it started its July meeting, all the opposition MPs walked out in solidarity with the LOO and his party. Subsequently, two opposition parties, including the main one and the second biggest in the House, boycotted parliament on Wednesday the 29th and held a press conference instead, whereat they indicated among other things a possible court action.

It is not the first time that an MP was suspended in a manner that the LOO was set aside. During the eleventh parliament, two opposition party MPs were suspended for a week following a heated exchange. Attempts to sue the Speaker and Parliament were abandoned, consequently depriving the country of a case law on the same.

The LOO had made an observation during the emergency meeting of parliament convened summoned by the President for COVID-19 related issues that some ruling party mayors had won tenders in councils that they are leading. He also pointed that a company called Monteco Solutions, which has President Masisi’s sister as one of its Directors, was awarded a tender to supply ARVs through direct appointment after losing a tender bid and unsuccessfully appealing. He argued that this was improper and or corruption.

This elicited a vehement protest from the ruling party which demanded evidence of corruption from the LOO. The LOO, in his view and indeed the opinion of his comrades in the House, has provided sufficient evidence of impropriety. The Speaker, it appears from his conduct and words, rejected this evidence as falling far too short in proving corruption.

It looks like the Speaker, was looking for evidence akin to one that could convict an accused person in a court of law facing criminal charges of contravening provisions of the Corruption and Economic Crime Act or the Penal Code or any anti-corruption law. This is the standard against which the Speaker considered and determined the fate of the LOO.

According to Standing Order 60.3, “If, on any occasion the Speaker deems that the powers conferred under the preceding paragraphs are inadequate to deal with any Member who has committed the offence of disregarding the authority of the Chair or contravening the rules of order in the Assembly by persistently and willfully obstructing or otherwise, he or she may name the offending Member”.

Standing Order 60.4 further provides that “Whenever any Member has been so named — (a) the offence was committed by such Member in the Assembly, the Speaker shall call upon any of the Whips there and then present in the House to move, “That (naming the Member) be suspended form the services of the National Assembly”. The Speaker shall put the question on such motion forthwith, no motion or amendment or adjournment or debate being allowed.

(b) if the offence was committed in the Committee of the whole Assembly, the Chairperson shall forth with suspend proceedings and report the circumstances to the Assembly, whereupon the procedure provided for in the preceding subparagraph shall be followed.” It is also provided at  60.5 that “If any Member is suspended under this Standing Order, his or her suspension on the first occasion in any session shall continue for one week, on the second occasion for a fortnight, and on the third or any subsequent occasion for one month.“ This is how the LOO was suspended after being named by the Government Whip in a choreographed process.

The Speaker presides over the House’s debates and other key proceedings, controlling which Members of Parliament (MPs) may speak. The Speaker, as the chairperson, is also responsible for maintaining order during proceedings, and may penalize members who break the rules of order and procedure in the House by throwing them out, usually for a day.

This is found in standing order 60.2.  The Speaker, it is expected, would remain strictly non-partisan, objective and renounce all affiliation with their former political parties when taking. This is what is expected in a Westminster parliamentary system and its hybrids systems such as Botswana. However, traditionally, most Speakers have been gatekeepers of the executive and some who sought to be independent were fought hard and one was in fact voted out when she attempted a second term.

The current Speaker, it would seem, has abandoned key tenets of parliamentary speakership, especially the neutrality aspect as he is in cohorts with the ruling party. It is not surprising because he has been effectively appointed to the office by the President; he recommended his name to the ruling party caucus and to Parliament. His deceptive predisposition is therefore not surprising. The current Speaker is a former Attorney General, elected MP and government Minister as well as a ruling party activist during 2019 general elections. He is known to be very conservative.

The Speaker ought to have known that it is not the responsibility of the LOO or any MP for that matter to produce evidence of corruption in parliament in a manner that he demanded. It is the responsibility of MPs to raise issues on the basis of reasonable suspicion.

If a Mayor wins a tender in a Council they head or a sister of the President wins a tender in her brother’s government, it is obscenely unethical and corrupt. The responsibility of investigating and producing evidence to the standard that the Speaker ordered, lies with the Directorate on Corruption and Economic Crime, the police and other law enforcement or investigating authorities.

Not even the intelligence agency is required by law to give evidence, theirs is to do preliminary collection of intelligence upon which the DCEC and Botswana Police can investigate. So, ministers in the Presidency, being the ministers under which the DCEC falls, can tell Parliament how far is the investigation, with regard to issues raised by the LOO. Sufficiency of evidence can only be determined in an independent court of law with corroborating documentary and other evidence, cross examinations and or oral presentations of account of activities.

Even then it is determined by a competent judge, not the Speaker of Parliament, after careful consideration of various issues. The standard of proof in such criminal cases is very high; beyond reasonable doubt. In parliament, at a bare minimum, it can be on a balance of probability when raising an allegation or accusation. Parliament, whilst it can conduct an investigation, it is not a court of law.

Parliament cannot delve into the corruption matter and decide it in a single Parliamentary sitting, with prima facie evidence and through the Speaker assuming the role of a judge. The evidence brought by the LOO was sufficient because the requirement and the standard of proof in parliament cannot be like that of a court of law deciding a criminal case.

The constitution enshrines at Section 12 freedom of expression. This freedom includes the freedom to hold an opinion. The Speaker ought to have ruled that the LOO was expressing an opinion in the House and that he considered what happened with the Mayors and the President’s ‘corruption’. He holds this opinion and as an MP, his freedom should be unfettered and protected by the Speaker.

The Speaker should have at least differed with the LOO, if he wanted to enter the debate, or ruled that the other side didn’t agree that there was corruption committed and proceeded to protect the LOO’s right to hold a divergent opinion whether that view was wrong or right. That is why MPs have the Powers and Privileges Act to enhance their constitutional right to speak freely.

The current Speaker, as a lawyer, should know this. The decision of the Speaker, to act in cahoots with the ruling party, to suspend an MP of a rival party cannot be constitutional and should be challenged in the courts. It must never be allowed in a democracy. A bad precedent was set during the eleventh Parliament. The matter must now be referred to the courts for judicial determination.

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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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