The Office of the President has recently dismissed former President Festus Mogae when he said the respect for the rule of law is eroding in Botswana when speaking during the African Leadership forum in Dar es Salaam, Tanzania. This has sparked assertions that only the office of the public protector can save Botswana from deteriorating further into disregard for the rule of law.
What is a rule of law?
According to Wikipedia, rule of law means, “The rule of law (also known as nomocracy) is the legal principle that law should govern a nation, and not individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.”
Since he assumed office, President Khama has in most cases operated his government through directives.
Political commentators and policy analysts are in agreement that the office of Ombudsman in Botswana cannot create the checks and balances expected on government. They argue that the office, headed by Festinah Bakwena, is not protected in the constitution as in other jurisdictions. "We have the institution in Botswana but the problem is that it lacks independence and is not robust. In South Africa, parliament appoints the Public Protector and not the executive alone. In Botswana the Ombudsman is biased towards the executive who have control over the office, for example through the budget. The problem is aggravated by the fact the Ombudsman office does not have personnel to conduct their own investigations," said an analyst at BIDPA.
The current Ombudsman, Festinah Bakwena, was quoted in the media complaining about her office being under resourced. The Office of the Ombudsman was awarded a budget of P14 million. Bakwena said of all this, only P6 million goes to running the organisation. The Ombudsman recorded a satisfactory budgetary performance for the year 2013 at (99%) being P13 959 058, an improvement from the 95% in the previous year. The office was previously held by attorneys Lithebe Maine and Ofentse Lepodisi.
A local attorney argues that the Ombudsman is a negligible office with no powers as it operates under a ministry unlike in South Africa where the office is protected by the constitution. With a weak Ombudsman, an office that also operates on a very small budget, observers said the disregard for the rule of law in Botswana, will continue unabated. Below, The Patriot on Sunday looks at the diary of events when President Khama disregarded the rule of law:
Extra judicial killings
On Wednesday night of 13th of May 2009, residents of Extension 9 in Gaborone were awoken by gun shots only to find their neighbour, John Kalafatis, shot and killed execution style by state security agents.
The police denied that they had a hand in the killing of Kalafatis and it was later discovered that he was killed by members of Botswana Defence Force’s Military Intelligence. The four security agents, Gotshosamang Sechele, Ronny Matako, Dzikamani Mothobi and Boitshoko Maifala were arraigned before the courts of law and convicted for the murder of Kalafatis by Justice David Newman. Mothobi was sentenced to four years imprisonment of which three were suspended while his colleagues were sentenced to 11 years imprisonment.
Hardly three months in prison, President Khama, who is also the Commander-In-Chief, shocked the nation when he pardoned the officers who were later absorbed back into the army. Kalafatis’ family has not been spared, as his father was attacked at his workshop when he was closing up and killed and no arrests have been made. Recently his younger brother Costa was shot by security agents and is currently recuperating.
There have been a number of other mysterious death which were blamed on state security agents.
According to the Public Service Act, government, represented by Directorate of Public Service Management (DPSM) and civil servants represented by public sector unions form the Public Service Bargaining Council (PSBC) whose duty is to negotiate salaries of public service employees and their conditions of service.
While the two parties were still in negotiations about salary increment, President Khama in a Kgotla meeting in Kachikau in March this year announced four percent salary increment for civil servants while PSBC was still in negotiations.
Botswana Federation of Public Sector Unions (BOFEPUSU) leadership accused him of usurping the powers of the PSBC and having disregard for the rule of law.
The untouchable DIS
In 2011, the Directorate of Corruption and Economic Crime (DCEC) instituted a marathon investigation against the Directorate of Intelligence Service Director Isaac Kgosi on allegations of corruption and money laundering.
The two state organs were under the Ministry of Defence, Justice and Security. The investigations are said to have created animosity between the two departments and in April 2012, President Khama transferred both the departments to the office of President in what was viewed as way of protecting his close ally-the spy chief Isaac Kgosi, who was not in good terms with Minister of Defence, Justice and Security, Ramadeluka Seretse.
Though the DCEC has long completed its investigations, the docket on Kgosi was never handed to the Directorate of Public Prosecutions (DPP). After the docket was leaked to the media recently, Khama ordered a new investigation on his trusted DIS boss, Kgosi.
Last year the local media ran an investigation story that indicated that President Khama has constructed a homestead and an airstrip in his ancestral home of Mosu using the taxpayers’ money.
The airstrip which has cost over P60 million was constructed by members of the Botswana Defence Force (BDF) and other government employees like Department of Electrical Engineering Services (DBES).
Initially government denied that they are building an airstrip at Mosu but later somersaulted and said that the airstrip is for public use, especially tourists who would be visiting Makgadikgadi Pans. Mosu village is one of pristine tourist attraction in Botswana.
The then Minister of Presidential Affairs and Public Administration, Mokgweetsi Masisi would later tell parliament that the airstrip was built on President Khama’s property. He reasoned that government has done so to other former presidents but Masire and Mogae denied that an airstrip was built for them.
Banning of Khama’s critic from Botswana
One of President Ian Khama’s fierce critics Julius Malema of Economic Freedom Fighters (EFF) who once called for Botswana’s isolation has been imposed with visa restrictions. The maverick and militant EFF leader who is scheduled to visit Botswana next week might be denied entry as he has to apply for visa though he holds a diplomatic passport. Gordon Bennet a Briton who represented Basarwa on their case against government has also been given visa restrictions as well as Survival International Director Steven Corry. There have numerous other mysterious deportations of foreigners.
Lack of consultation
When president Khama imposed alcohol levy it was at a kgotla meeting in Gabane in 2008 and the then Minister of Trade and Industry Neo Moroka when asked about it said maybe it was a joke as they have not discussed it. Little did he know that President Khama was serious and it was implemented without consultations with relevant authorities. This was followed by increased levies and reduction of operating hpours for liquor outlets which led to most liquor stores closing down and negatively affected the music industry.
The 2011 Industrial action
During the 2011 industrial strikes which nearly brought the economy of Botswana to its knees, President Khama refused to listen to his ministers, former Presidents Ketumile Masire and Mogae and church pastors to sit down with union and reach amicable solution.
What is an Ombudsman?
An ombudsman or public advocate is usually appointed by the government or by parliament, but with a significant degree of independence, who is charged with representing the interests of the public by investigating and addressing complaints of maladministration or a violation of rights. In some countries an Inspector General, Citizen Advocate or other official may have duties similar to those of a national ombudsman, and may also be appointed by the legislature. Below the national level an ombudsman may be appointed by a state, local or municipal government, and unofficial ombudsmen may be appointed by, or even work for, a corporation such as a utility supplier or a newspaper, for an NGO, or for a professional regulatory body.
Whether appointed by a legislature, the executive, or an organization (or, less frequently, elected by the constituency that he or she serves), the typical duties of an ombudsman are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. Ombudsmen sometimes also aim to identify systematic issues leading to poor service or breaches of people's rights. At the national level, most ombudsmen have a wide mandate to deal with the entire public sector, and sometimes also elements of the private sector (for example, contracted service providers). In some cases, there is a more restricted mandate, for example with particular sectors of society. More recent developments have included the creation of specialised Children's Ombudsman and Information Commissioner agencies.