With DCEC as its custodian, Assets & Liabilities Bill starts on wrong footing

SHARE   |   Sunday, 30 June 2019   |   By Adam Phetlhe On Sunday
With DCEC as its custodian, Assets & Liabilities Bill starts on wrong footing

The long awaited Assets and Liabilities Bill has been gazetted and will be up for presentation in the July session of the National Assembly. And this should be applauded after waiting for so long for it to be signed into law given its necessity to deal with the run away and institutionalised grand corruption that has ravaged this Republic for so long. But with this grand corruption having truly manifested itself even after the formation of the Directorate on Corruption and Economic Crime (DCEC) whose mandate is to combat it in the main, is this agency the appropriate structure to manage the assets and liabilities of those specified once it has been signed into law? Why has a truly independent structure reasonably far away from the shadows of politicians failed to be established to manage the Assets and Liabilities Act once it comes into operation? With the DCEC still in its current legislative construct and under the same steel arm of the executive authority, the contemplated Assets and Liabilities law will deliver if any, very little of what is intended.

In my article titled ‘Will Masisi’s Declaration of Assets Law Be Real Or Raw Deal’ published on the Patriot on Sunday online edition dated 8 May 2018, I referred to a paper by the Organisation for Economic Co-operation and Development (OECD) whose mission is to ‘promote policies that will improve policies that will improve the economic and social well-being of people around the world’ titled ‘Asset Declaration for Public Officials: A Tool To Prevent Corruption’. The paper asked a few critical questions amongst which was: ‘Which institution should be responsible for managing the asset declaration for public officials’? It observed that ‘No particular institutional solution can be recommended as a priori better than others. The institutional set-up largely depends on the system model-single for all officials or specialised for various branches-and can vary. In the same vein, asset declarations for judges can be managed by a special body within the judiciary.’

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Perhaps in line the ‘specialised for various branches’ narrative by the OECD, the Sunday Standard online edition dated 24 June 2013 carried a story titled ‘Pressure Mounting on Judiciary to Declare Interests’ in which a judge of the High Court Justice Michael Mothobi was ‘set to present an academic paper destined to be published in a law journal.’ This paper was entitled ‘Judicial Declaration of Registrable Assets: Conceptual and Practical Issues. In this academic paper the newspaper further reported, Justice Mothobi came ‘with recommendations of fast tracking the process of disclosure by, among other things, setting up a standing committee that will comprise of two High Court judges and a judge of the Industrial Court. The Registrar of Judges’ interests will also act as Secretary for our proposed Committee. Any declarations made to the Registrar must be understood to be taken under oath, thus discouraging any would-be dissenters and empowering the Standing Committee with constitutional powers to act accordingly.’ It appears Justice Mothobi’s paper did not see the light of day however noble in my view, it was. And it is very telling as reported then, that his colleagues in the judiciary were somewhat not receptive of his paper in the context that the judiciary would have taken the lead in sensitising all and sundry of the need to declare assets and liabilities.  But why do I feel the DCEC is not the appropriate custodian of the Assets and Liabilities law once signed as such?   

The DCEC as we should know, is an institution that has received a lot of bashing in terms of the general perception about its independence in dealing with high profile corruption cases after its establishment some twenty plus years ago. As an institution charged with combating grand corruption which is in most cases if not all, perpetuated by senior public officials and politicians, Botswana is yet to see such high profile individuals effectively investigated and brought to court where there would be good prospects of conviction. Yes we have previously seen such high profile individuals taken to court on corruption charges yet it appeared that their cases were badly investigated and may be perhaps deliberately so, where any impartial court could not convict. The current National Petroleum Fund case where the DCEC investigations appear to be wanting in terms of the big fish in the scandal seemingly protected amongst others, remains questionable whether such big fish that would be the grand perpetrator of grand corruption, will properly declare their assets and liabilities.

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The fact that the DCEC is still under the absolute control of the Office of the President in terms of the President solely appointing its head who with no oversight mechanisms except the executive authority itself to perform the required checks and balances should scare one that the declaration of assets and liabilities for the political leadership and those connected to them will be circumvented in one respect or the other. It is in public domain that criminal matters instituted against high ranking public officials have had those investigating them transferred under mysterious circumstances to somewhat kill those investigations. The case involving the recent investigation on the Permanent Secretary to the President in the much talked about Botswana Public Officers Pension Fund is the case in point.

So with the DCEC having a very poor conviction rate particularly for the big fish that perpetuates grand corruption the country is mired in presumably because of interference and manipulation from the appointing authority, nothing reasonably suggests that the agency is in any better position to uphold the Assets and Liabilities law to compel the political leadership to genuinely account for their assets and liabilities. And with the advent of public officials looking the other way where they are aware, or are expected to be aware that some wrong doing is taking place in order to save their jobs and careers, it leaves me with the considered view that with executive authority looming large over the DCEC, the very same public officials will look the other way when they have reason to suspect that a false declaration has been made. If anything, the contemplated Assets and Liabilities law will be used just as the DCEC is, as a political tool to fight political battles against opponents.

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In order to ensure that the declaration of assets and liabilities by those specified in the Bill is taken seriously, a fully independent and resourced body specifically mandated to administer assets declaration should have been established. With the DCEC and with its chequered history of spectacularly failing to hold the mighty and the powerful of this country to account in one respect or the other, more of the same is reasonably expected to be the same with the declaration of assets and liabilities for the same mighty and the powerful. Consequently, the Bill has in my view started on the wrong footing with the DCEC as its custodian. It will be a grave injustice and disservice to the nation  if the National Assembly passes the Bill with the DCEC as its custodian. But knowing the ruling party Members of Parliament as rubberstamps of the executive, the Bill is as good as passed. May be, and just maybe, there might be some resistance given the political instability in the ruling party. I am prepared to be persuaded otherwise. Judge for Yourself!

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