Brouhaha over Khama’s gifts!

SHARE   |   Monday, 05 February 2018   |   By Staff Writer

President Ian Khama’s growing list of presents from members of the public who are bidding him farewell has provoked a strong debate with some accusing him of taking from the poor while others see nothing wrong with that. Read below: 

•    I learn from a friend someone by the name Fologang had asked me a question whether in the shoes of the outgoing president I wouldn't have accepted the presents showered on me? Sorry I didn't see the direct question, but here is my honest answer: I was an MP in the 7th Parliament, one of the recurring requests from my constituents, was to intervene on their behalf when as employees they were underpaid or denied their terminal benefits by their employers; I was not always successful but sometimes I succeeded. I remember one lady came to thank me at the BNF office holding an envelope: "mopalamente, ba ntuetse, madi kea ke ne kere o tsee sengwe mo go one, onthusitse ele ruri!" I didn't even ask her, how much it was, didn't touch the envelope; I told her, "mma, madi ke a gago, nna ke a duelwa ke duelelwa sone se ke go se diretseng!" o ne a leka go nthapela a utlwile botlhoko gore ke gana malebo! I couldn't see myself depriving her of the little she had got from the bloodsuckers who exploited her to the extent of denying her rightful terminal benefits! SKIK for the last 10 years was amply remunerated for his shody service; he'll continue to live in luxury and be paid well for doing nothing! How can he feel good fleecing Batswana indigents! Masisi, Kgathi and other sycophants can do it, but ... Ooh Lord, Have Mercy! Michael Dingake, former MP for Gaborone Central


•    This is my opinion on the issue of receiving gifts, for what it’s worth. Stepping into the hornet’s nest... Under the Penal Code (particularly Section 386 but also 384 and 99), the receipt of Gifts by government officials creates a presumption of corruption that such official needs to rebut. The evidential burden of rebutting such a presumption is bore by the official, and is discharged on a balance of probabilities, if it is considered, by the prosecuting authority or the Court that the money, gift (consideration) was not given and received "corruptly" as an inducement or reward. Section 386 (99 and 384) of the Penal Code categories as corrupt, the conduct that amounts to a breach of the persons position of trust in respect to the position he holds by virtue of his employment. The remedy (that the law is seeking to address) is not concerned with the express terms of the persons actual authority, but rather their sphere of influence. This being said, that presumption may be easily rebutted by declaring the gift and where no corrupt intend exists (by either the giver or receiver) the receipt of the gift is lawful. Bear in mind the presumption. The DCEC Act is different however; it too prohibits the receipt of gifts in so far as they create a presumption of corruption. But it adds that one cannot raise the defence that they never intended to do or not do certain acts whether within their power or not. There are various other considerations and distinctions, under the DCEC Act, there must be a corrupt intent. But the long and short of it all is that the receipt of gifts is generally speaking then, unlawful. Whether its been done in the past is inconsequential. One runs the risk, in accepting the gift of being charged with corruption.  Stepping into the hornet’s nest yet again: To answer those who (to quote a learned friend) lack the testicular fortitude to express their views publicly but do so in my inbox: In my first post on this, where i refer to declaring assets, this does not mean an "offence has not been committed", it merely provides grounds to discharge of the reverse onus that is placed on the recipient of the gift under the Penal Code and DCEC Act. Receiving gifts in public is not the same as a declaration. There is a formal administrative process to be followed. Non adherence of which means the presumptions of corrupt practice kicks in under the Penal Code and DCEC Act.  If gifts are given and dealt with administratively then they belong to the state. They are state assets to be disposed of according to those laws. If administratively such gifts are handed over to the receiver; and this should only be done in truly exceptional circumstance, then due process has been followed and according to the law, not the moral issues, there is no wrong doing.  The Executive does not enjoy blanket immunity. Section 41 of the Constitution does not exonerate the office bearer from criminal wrong doing. The law must just take a back seat until he is removed or otherwise leaves office. The officer bearer can be prosecuted for offences committed while or before being in office (but only after leaving office) they cannot be prosecuted while IN office. Joao Carlos Salbany, Private attorney

•     I have been following the gifts debate for some time with half-hearted interest. The points of interest to me is the legal presumption in the Corruption Act, to the effect that if a person holding public office received a gift immediately the law presumes that he is guilty of corruption. It is now incumbent upon him to prove that he did not receive the gift corruptly. In other words, because Corruption is difficult to prove, parliament has come up with a reverse onus provision whose effect is to shift the onus of proof from the state to the public official. He discharges this legal presumption on a balance of probabilities. It is entrenched principle of our law that the onus of proof in a criminal case lies with the state and in BW there are only two statutory exception, being Corruption and Stock theft. In legal circles only Marumo J attacked this provision in a beautiful and well-reasoned judgment only to be overturned by the Court of Appeal in a not so convincing judgment. The CA seemed to fully agree with Marumo J but overturned his decision on the basis that we are a cattle country and it is in the public interest to protect cattle barons. The CA killed all the debate around the issue of reverse onus provisions. The gift debate brings back this debate in my view. This is because a receipt of a gift by a public official is prima facie corrupt and immediately the onus of proof shifts to the receiver to rebut the presumption that he acted corruptly. All that a prosecutor should do is to charge and prove only that a gift was given to a public officer and it is now upon the public officer to disprove corruption. Please do not personalize the debate because the law must apply to us all equally. This debate may help us appreciate the dangers of reverse onus provisions in our laws. There is a contention that, by registering the gift, it is declared. There must be a distinction between a recordable of a gift and a declaration. When u declare something, it is brought to the authority who has the power to decide whether you should take the gift or it goes to the state or such other way of how the gift is to be dealt with. In the case of say a cow, the authority may order that, the cow be slaughtered and we all wine and dine over it. I therefore take the view that there is a difference between declaration and registering of gifts. When I was prosecutor there was a standard but entrenched practice that where a public officer received a gift or valuable consideration as they call it in law from an individual who is not a public official, only the Public Official will be charged and the other fellow used as a witness. We were told this was geared towards cleaning up the public service. I have no reason to believe that this practice has been discontinued. Busang Manewe, Private attorney





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