President Rre M.E.K. Masisi has promised the nation during his inauguration and the State of The Nation Address respectively that the Declaration of Assets and Liabilities Bill will be presented to the current sitting of Parliament. On the face of it and to be fair to the President, this is good news considering that the Botswana Democratic Party (BDP) has over the years flip-flopped by not ensuring that the Declaration of Assets and Liabilities Bills that have previously reached the floor of Parliament, and particularly proposed at the time by their own MP Joy Phumaphi, passed into law. But they say better late than never though there is no honest justification why this law has been overly delayed by the powers that be.
The fact that the President’s body language on this Bill suggests his total commitment must be applauded with the highest degree of optimism. But against this high degree of optimism emerges the saying: once bitten twice shy. Politicians have promised the nation and continue in this regard, so many good things yet at the end of the day, heartbreak reigns supreme. The nation would justifiably feel betrayed by the politicians for not keeping their side of the deal. Whereas the President is desirous to introducing and ensuring that this Bill passes into law, there is a serious hurdle that he must first overcome. And that is the reformation of the Directorate on Corruption and Economic Crime (DCEC) Act precisely because one cannot, in my view, effectively fight corruption with whatever effective Declaration of Assets and Liabilities law they could present when the DCEC is still configured as is.
But before I discuss the need to reform the DCEC in totality, let us peep into what other competent structures say is the need to introduce the Declaration of Assets and Liabilities law. The Organisation for Economic Cooperation and Development (OECD) in a paper titled ‘Asset Declarations for Public Officials-A Tool to Prevent Corruption’ says it is important to introduce the Assets and Liabilities ‘declaration systems to introduce transparency and trust of citizens in public administration, by disclosing information about assets of politicians and civil servants that shows they have nothing to hide...to monitor wealth variations of individual politicians and civil servants in order to dissuade them from misconduct and protect them from false accusations, and help to clarify the full scope of illicit enrichment or other legal activity by providing additional evidence...’ It accrues from the foregoing that for the Declaration of Assets and Liabilities law to succeed, the other enabling catalyst to achieve such success under the subject matter, is the performance of the DCEC. Let me discuss the hurdle that is the DCEC as it currently stands.
I will be brave and brutal to say that Botswana is at the cross roads of grand corruption because the DCEC has been conspicuously absent for the longest time to combat grand corruption commited by high-profile individuals while ever present and willingly to ruthlessly deal with the low-profile small fish. Like I have said before, if one were to go to prison and count the number of high-profile individuals serving as a result of corruption related crimes, you will come back disappointed. Not that high-profile individuals do not commit grand corruption but because the DCEC in my view, has always grown cold feet to apprehend them because it could be ‘under the direction and influence of the presidency and ultimately the President’. Grand corruption is committed by highly educated, complex and sophisticated individuals who would, predictably, be aided and abetted by other such individuals acting as State and non-State actors. The classical example that comes to mind is that of the immediate past Director General of the Directorate on Intelligence and Security Services Rre Isaac Kgosi whose corruption docket has been commuting between the DCEC and the Directorate on Public Prosecutions (DPP). It has been suggested by the DCEC that investigations on this docket have long been concluded and that the ball is in the DPP’s court to take it to court. The DPP has at times thrown the ball back at the DCEC. It would reason that some political influence over this docket has been at play to delay it to this point. This is the reason I argue, why high-profile corrupt individuals are currently insulated from the DCEC radar.
The appointment of the Director General of the DCEC is the sole prerogative of the sitting President. It would follow that a person appointed to this position in this manner and without any background checks to validate their properness and fitness for appointment, creates an atmosphere where such appointees become blindly loyal and beholden to the appointing authority. A culture has taken root that public servants generally speaking, are more concerned about their livelihoods than doing the right things which in the eyes of the appointing authority, may be offensive. That is, they are prepared to look the other way to wrong doing to keep their jobs. Subsequent to this conduct, the idea of doing what I say and not what I do becomes entrenched particularly where conditions of blind loyalty and being beholden to the appointing authority have been created by the legislative construct of State institutions. In the last ten years or so for example, Botswana has spent a fortune on infrastructural development where such spending is not commensurate with the intended or expected socio-economic outcomes. In the process it could be argued, funds meant for these infrastructural developments ended up in the coffers of the educated, complex and sophisticated individuals.
So, with the legislative configuration of the DCEC left unreformed as it looks very likely and save perhaps for a few and far in between cosmetic changes, the introduction of the Declaration of Assets and Liabilities law, effective and probably convincing as it could be on paper, will become inconsequential in the bigger scheme of things. The Permanent Secretary to the President and Cabinet Secretary Rre Carter Morupisi is quoted by The Botswana Gazette newspaper dated 21-27 November 2018 to have said ‘...People want us to copy and paste the South African models but my view is that we are doing just fine, and our institutions are independent and effective....People talk about the institutions being hamstrung to investigate presidents or associates to protect their jobs but they forget that for an institution’s head to be sacked there has to be tribunal set up to ascertain the veracity of the claim made against that person...’ Rre Morupisi conveniently and may be taking us for granted, forgets that Rre Collie Monkge, though not head of an institution in the DCEC context and Rre Kgosi were sacked (probably with his input) without any tribunal ‘set up to ascertain the veracity of the claim made...’ Rre Morupisi must with respect, be told to his face that South Africa has long established a functioning Human Rights Commission which Botswana is still conceptualising; State institutions are not housed at the Union Buildings as is the case here; heads of such institutions are not only directly and exclusively appointed by the South African President but are accountable to parliament; the Chief Justice and other judges are publicly interviewed; South Africa has the Independent Police Investigative Directorate (IPID) whose core function is to bring rogue police officers to book. Just last week, we watched interviews for the position of the Director of Public Prosecution. So if we remain in denial to our shortcomings as Rre Morupisi seems to suggest, we will forever remain entrapped in such denial mode.
For all intents and purposes, a reformed DCEC together with other relevant institutions and the Assets and Liabilities law would be so configured to complement each other with the key and fundamental mandate to detect, identify and combat corruption let alone grand corruption. Providing an unsolicited advice to the President immediately after taking office, I called on him to harvest the low-lying fruits. These would be as I suggested, the total removal of State institutions like the DCEC from his office such that they perform their constitutional duties outside the real or imagined political and other undesired influences and manipulations. These influences given the status quo, remain fully entrenched. Needless to say, the Declaration of Assets and Liabilities law will serve no purpose to subject a person holding the position of President when such a holder is still shielded from visitation by the law for criminal or civil transgressions while still in office due to formidable immunity as provided for in Section 41 of the Constitution. This scenario tells us unequivocably, that the President of Botswana is in a more favourable position to be tempted to engage in corrupt activities fully aware that no State institution could dare him/her.
While there is legitimate and palpable excitement to the much-awaited Assets and Liabilities law, I would respectfully urge you to hold your horses because given the above arguments, the excitement could very well be short-lived. Like I have alluded to above, the big fish of grand corruption is still enjoying proceeds outside the prescripts of the law because the DCEC has grown cold feet to apprehend and subject them to a lawful process. If there is no grand corruption, Botswana wouldn’t have wasted billions of unaccounted Pula in the multi-billion projects like Morupule B power station and other fraudulent tenders that are challenged day in and day out with some measure of success. We are told to prepare ourselves for the impending load shedding!
The reformation of the DCEC would have been the first building block upon which the Assets and Liabilities law would be set on a solid and firm foundation. With the anticipated law, Botswana would have taken a formidable step forward yet she has taken so many backwards because an unreformed DCEC would surely cancel the good intentions if any, of this law. It could be argued and fairly so, that the DCEC is redeeming itself in the National Petroleum Fund case. But it appears it has difficulty in getting some of the big fish in the dock presumably because some strings are still being pulled behind close doors to save such big fish.
In the end I argue, the introduction of the Declaration of Assets and Liabilities law, without the desirable and significant reform of the DCEC, will be akin to parliament passing a Police Act with no policemen and women to enforce it. It will also be like sending police officers to arrest heavily armed criminals when such officers are carrying toy guns and knobkerries. Consequently, criminals will have a field day. ‘The more things change, the more they stay the same’. Judge for Yourself!