During his inauguration on 1st April 2018, President Mokgweetsi Masisi told the nation and the world that he is desirous of at last, ensuring that the Assets and Liabilities law becomes a reality. This after his party Members of Parliament and he himself as a former minister in the presidency, who should have long ensured passage of this law in parliament, continuously flip flopped and blocked it over flimsy reasons. On the basis of this past history of the President’s party and himself, I am sceptical that this law and if indeed it comes to pass, will lack critical aspects required to make it effective, enforceable and above all, achieve the intended objectives. That which prevented and instilled fear for this law to pass is arguably still present and imbedded in the bodies and souls of those who are terrified by it yet they are constitutionally obliged to ensure its passage. Only time will tell if the current charm offensive by Rre Masisi, and good to the eye as it appears, will deliver at the end of it all.
Ruling party MPs have developed a propensity to be so terrified by any virtue that seems to better and advance meaningful democracy, good governance, accountability, transparency and the rule of law. To them these virtues become subservient to political expediency than to the public good. Like I have alluded to above, it has unnecessarily taken over two decades for the Assets and Liabilities law to be realised should the President’s newfound commitment be a real deal or better still and borrowing from Rre Cyril Ramaphosa, a new dawn.
One law the ruling party touted as a real deal but turned out to be a complete failure is the Intelligence and Security Services (ISS) Act of 2007 – the creator of the infamous Directorate on Intelligence and Security Services (DISS) whose ramifications and disaster came about long before with the dismissal of Rre Isaac Kgosi when the damage was already so entrenched. The Parliamentary Committee on Intelligence, as we all know, has been dysfunctional for as long as one can remember where various Ministers’ responses (Motsumi, Makgalemele, Molale and Kgathi) to this failure were so appalling. It is important to note that oversight mechanisms were only introduced late into the ISS Bill after being initially and perhaps intentionally left out during its construction. At every opportunity to answer MPs questions on why this committee was dysfunctional and other related matters, answers have been inconsistent, incoherent and painfully misleading. Rre Masisi himself is quoted by The Botswana Gazette (April 5, 2018) to have said that Assets and Liabilities law ‘was tantamount to a witch hunt’ when still Minister of Presidential Affairs back then. Other ruling party MPs have regarded the Assets and Liabilities law in that negative light as well hence the extended delay. What has honestly and suddenly changed to now validate the desire to bring this law notwithstanding the urgent need for it? The answer will be provided by the construction of the law itself when Rre Masisi finally signs it. That is, it will show us whether it is underpinned by political expediency to endear Rre Masisi to the electorate next year or whether it is meant to be fit for purpose. Nothing therefore leaves one absolutely confident that Rre Masisi’s law on Assets and Liabilities will be any different from the DISS Act and others whose creations were more for political expediency than for the public good.
But why do we require the Assets and Liabilities law? Progressive democracies throughout the world, even those younger than Botswana, have long passed this law for the same reasons the President has in mind. The law in the main is important to compel all those in positions of authority, power and influence together with their immediate to distant associates to be transparent and accountable on how they have acquired their assets and on how they settle or deal with their liabilities. The benefit flowing from these declarations is that huge unexplained wealth owned by the powerful and the mighty amongst others, can be explained.
The Organisation for Economic Co-operation and Development (OECD) which is a group of countries that discuss and develop economic and social policy, released a paper in 2011 titled ‘Asset Declaration for Public Officials: A Tool To Prevent Corruption.’ In its foreword, it posits that ‘Corruption is a key threat to good governance, democratic processes and fair business completion. Fighting corruption and promoting good public governance are among the main priorities of the OECD…’ On Part 1 of the Policy Principles and Recommendations for Public Official Asset Declaration, the paper asks the following pertinent questions which Rre Masisi should also ask and provide unambiguous answers: ‘Why introduce asset declaration systems; Which legal framework should be chosen; One regulation for all officials, or different regulations for various categories; Which institution should be responsible; Who should be obliged to declare assets; What information should be declared; How should asset declarations be collected; How should asset declarations be verified; What sanctions are needed to enforce asset declarations regimes; Which information should be open to the general public and other public institutions; How should the declarations system be evaluated? The Tanzania Public Leadership Code of Ethics Act as amended in 2001 amongst others gives a bird’s eye view of an ideal legal framework to deal with assets and liabilities by public officials just as much as OECD does. If the proposed law will be constructed in the mirror of OECD and Tanzanian law referred to above as a bare minimum, Rre Masisi’s should be a real deal worth celebrating and applauding.
But should the proposed Assets and Liabilities law be constructed in a manner similar to the ISS Act where accountability, transparency and oversight mechanisms are more theoretical than practical; where such declarations are made to say the President or the Speaker of Parliament or a body of politically exposed persons, the deal will inevitably be a raw one. It will be as good as having no meaningful law to deal with corruption, particularly perpetuated by the mighty and the powerful as it is currently the case. One thing is certain and interesting though: the mighty and the powerful who are already the beneficiaries of the absence of this law will fight back to cover their tracks as much as those who did when this law was first proposed by Mme Joy Phumaphi some two decades ago or so. This fight back, and I argue, may very well scupper Rre Masisi’s initiatives considering its intended consequences to the mighty and the powerful. As a bare minimum, the law could be watered down to accommodate the mighty and the powerful.