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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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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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