I first heard about the Foreign Enlistment Act 1980 (as amended in 2005) recently when the Ministry of Defence, Justice and Security made an announcement that Botswana citizens who have enlisted in foreign military establishments, have crossed the line because they have not sought and obtained the President’s permission to do so. The purpose of this Act is to “control the enlistment in the military service of a country other than Botswana of citizens of Botswana and other persons in possession of Botswana passport”. Given the circumstances surrounding their enlistment in those foreign military establishments, I propose that they be pardoned especially that they didn’t leave Botswana specifically for military vocation. But because the Ministry has not provided all the “critical information and facts” about this matter, and because this is an opinion article, I will unfortunately rely on points of assumption. From the outset, it must be stated that the security and sovereignty of this Republic is non-negotiable and that all measures should be put in place to safe-guard it. One such measure is the Act referred to above. As a proponent of the rule of law, it would be hypocritical of me to suggest that this rule must be ignored in favour of those fellow compatriots but that said, the Constitution on the other hand empowers the President to pardon compatriots who have found themselves on the wrong side of the law. I want to believe (and I stand corrected) that a Presidential pardon doesn’t necessarily apply to cases where individuals have gone through a prosecutorial process through which some form of punishment is arrived at and after which pardon is sought. It is more of each case treated on its merit.
The Ministry of Defence, Justice and Security announced recently that about 29 fellow compatriots are known to be serving in foreign military establishments without the President’s permission and further that once they arrive here, they will be arrested and prosecuted for violating the above-mentioned Act. It looks like they have a case to answer. The Ministry also stated that these fellow compatriots are not known to have had prior service in the Botswana Defence Force (BDF) or Botswana Police Service; that they were sponsored by their parents to study after which they enlisted in the military establishments of those countries. The Ministry, I want to assume, is aware of the specific countries of enlistment together with their personal details. Questions, however, linger at the back of my mind: (1) has the Ministry engaged parents to find out if they (parents) have engaged their children – parents are naturally closer to their children and will naturally be a critical stakeholder; (2) has the Ministry engaged the country’s diplomatic missions where these children are based to counsel and persuade them to fully understand their predicament and the consequences thereof; or (3) has Ministry simply assumed an apathetic position? The Ministry is better placed to provide clarity.
The above Act is classified into six or so critical sections and due to space constraints I have selected the following three for purposes of this article. These sections are (1) illegal enlistment (2) leaving Botswana for enlistment (3) inducing enlistment by misrepresentation. It would appear from the above that the only applicable section that applies to the compatriots is (1) on the basis that permission was not sought and given - secondly (2) doesn’t apply because they didn’t leave Botswana for enlistment and thirdly, nothing suggests that any of them was induced. What then are my reasons for suggesting pardon? Section 47(2) of the Constitution under the Executive Functions of the President says “In the exercise of any function conferred upon him or her by this Constitution or any other law the President shall, unless it is otherwise provided, act in his or her own deliberate judgement and shall not be obliged to follow the advice tendered by any other person or authority”. Acting on “his own deliberate judgement” and pursuant to Executive Functions aforesaid and with all facts before him, the President will be better placed to consider and pardon accordingly. Mitigating factors to significantly influence pardon in their favour in my view are,
(1) the compatriots are relatively young and did not leave the country specifically to enlist in those armies like mercenaries would; (2) nothing appears to suggest that they pose any security risks because they do not know the operations of Botswana’s security organs as they have never been part of it; (3) they cannot be expected to have passed Botswana’s security secrets to foreign armies they currently serve; (4) given and assuming that they had gone abroad for studies in professional disciplines, one cautiously imagines that they serve in a civilian environment like those at the BDF unless something to the contrary suggests so; (5) nothing would suggest that they have any intention to harm Botswana militarily or otherwise; (6) they may have jumped at lucrative and hard to ignore job opportunities they would otherwise not have here given the high unemployment rate which may ultimately be a case of a blessing in disguise (skills-wise) when they return. On the other hand, the only aggravating factor against them is failure to seek and get the President’s permission. If anything again suggests contrary to above, it immediately turns the pardon issue on its head.
Unless the Ministry presents a highly compelling case against these compatriots and notwithstanding the serious violation of the Foreign Enlistment Act 1980 (as amended in 2005), a Presidential pardon as envisaged in Section 47(2) of the Constitution, which while not an absolute given, is desirable and achievable. At the very least, one would say fellow compatriots have behaved like a naughty teenager who failed to return home after attending a friend’s birthday party somewhere in town. We still accept them back home albeit with some tongue-lashing. Mr President, kindly give them another chance because you lead a “compassionate and caring nation”. Calisto Tanzi said “I am guilty for giving my consent to certain things, for that I’m guilty”.