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Whatever the merit of an argument made by the Leader of the Opposition, Duma Boko, this past Tuesday in parliament that the recent fast-tracking of legislation is unconstitutional, the latter was done for very practical, national-interest purposes.
Section 89.2 of the constitution says that before being introduced in parliament, every bill must have been published in the Government Gazette for a period of at least 30 days.
“I have said to this parliament that introduction of any bill under any circumstances which does not satisfy the constitutional requirement of having been published in the Government Gazette for a minimum period of 30 days preceding its presentation on the floor of Parliament, that amounts to a violation of the Constitution,” said Boko who is both a lawyer and taught law at the University of Botswana before going into private legal practice.
He maintained this position even when the Deputy Speaker Kagiso Molatlhegi and the Parliamentary Counsel said that the standing orders permit the tabling of bills under urgency. Boko’s argument – which seems to hold as lot of water – is that the standing orders cannot carry more water than the constitution, which is the supreme law of the land.
Recently, the Minister of Justice Defence and Security, Shaw Kgathi and The Minister of Finance and Economic Development, Kenneth Matambo, have been tabling a series of mostly anti-money-laundering bills under urgency. The bills easily gain passage because most of the MP are members of the ruling Botswana Democratic Party. Last month when he tabled a bill to regulate trusts more closely, Kgathi said that he was tabling it under urgency because the Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG) assessors would be visiting Botswana soon to conduct an on-the-ground assessment of money laundering and terrorism financing risks in the country.
There may be need for a High Court interpretation to break the stalemate between Boko and the speakership. For now though, there are very practical concerns that need prompt resolution. Following their 2016 visit, ESAAMLG assessors (who have returned to conduct another assessment) identified a host of loopholes that needed to be plugged as a matter of urgency. The report, which is available online, says that Botswana is highly vulnerable to money laundering and terrorism financing threats, that law enforcement agencies either lack the technical competence to deal with these threats or that where such competence exists, it is not put to good use and that the judiciary has not been “tested” in handling complex money-laundering cases. Among other adverse results, the laxity of the law is said to have enabled yesteryear’s Directorate of Intelligence and Security Services to launder money into trusts and use such money to break up the opposition Umbrella for Democratic Change.
For reasons that remain unclear, the administration of then President Ian Khama didn’t act on ESAAMLG recommendations – which were made in May last year. In his inauguration speech on April 1, President Mokgweetsi Masisi hinted that one of his priorities would be tightening up the financial system to prevent leakages. At that time, parliament was about to go on recess after debating the 2018/19 budget speech. When it reconvened last month, the bills that Boko is unhappy with the manner they gained legislative passage formed part of the first order of business. A Government Enclave source says that not acting on the ESAAMLG recommendations promptly is detrimental to Botswana’s economic interests because that could tarnish the good reputation of country’s financial sector. One of the risks that the fast-tracked legislation offsets is having the country being blacklisted by international financial agencies, other countries as well as ESAAMLG itself.
“Investors consult ESAAMLG reports when they look for countries where they can invest their money,” says the source, adding that not acting on recommendations of the 2017 report could negatively influence investment decision-making that follows such process.
Himself tabling a motion under a certificate of urgency, Boko cited the fast-tracking of bills under a certificate of urgency as one of the reasons why Masisi should step down within four days of his motion gaining legislative passage. The motion failed but the Gaborone Bonnington North MP has warned that “After you pass this legislation which is unconstitutional, we will take it up in the courts and we will get that legislation set aside for having been passed unconstitutionally.”