What is the point of a former president or minister writing an autobiography in an environment of lack of freedom of information? I ask this question primarily because I came across an article in one of the local papers, Botswana Guardian of 31 August 2012, in which a certain Professor Grynberg stated that Botswana had in 1969 signed an agreement that effectively created a basis for Botswana’s dependence on South Africa. According to the author information about the agreement came to light after 1994.
Sir Ketumile Masire, one time Minister of Finance and Development Planning, waxes lyrical about his political prowess in his autobiography but does not mention the existence of this agreement. David Magang, one time Assistant Minister of Finance and Development Planning, likewise wrote an autobiography in which he set out his attempts at citizen economic empowerment but does not disclose the existence of this agreement to the people of Botswana. It is highly unlikely that Masire and Magang never knew about this agreement. Both gentlemen thereby gave Batswana incomplete information on which to judge their role in the development of this country.
One even wonders whether our parliament was privy to this agreement. This is very fundamental because in our constitutional setup, the cabinet is responsible to parliament for any actions taken by a president. Nganunu J. as he then was, in the case of Attorney General & Ano v Solar Power, dealing with a review application in public tendering, said “… an open tender system that by itself will demonstrate to the public in a democratic state how money is used..” Why can we not following the same reasoning to say that by accounting to parliament cabinet demonstrates to the public in a democratic state how executive power is used?
If cabinet accounts to parliament how come parliament was not made aware of this agreement? A lot of people have wasted time and energy trying to figure out why Botswana was having a tough time growing her manufacturing sector. We now effectively have an explanation of why government has always made the right noises about citizen economic empowerment but has elected to basically do nothing. We now know why it has taken more than 20 years to formulate a citizen economic empowerment policy. We now know why government is reluctant to formulate a citizen economic empowerment law.
We must remember that Festus Mogae was at one time Minister of Finance and Development Planning. It is highly unlikely that he was not aware of the agreement. If Festus Mogae was aware of this agreement then his devaluation of the Pula becomes suspect. One can now think that the real reason for the devaluation of the Pula was to counter the effects of this secret agreement. How could Botswana become competitive against South Africa through devaluation of its currency if the real problem was South Africa’s power to determine policy?
I had occasion to meet and make representations to the consultant at the Ministry of Finance and Development Planning who led the formulation of the Public Procurement and Asset Disposal Act in my capacity as chairman of the Association of Citizen Development Consultants. At the time I was puzzled by inclusion of a provision that Botswana must honour her obligations under international treaties and agreements. I am not aware of any other statute that specifically enjoins Botswana to honour international obligations in such wide terms. I now know why such a provision was included.
We of course have a section in our constitution that says that in exercise of executive functions, a president need not take any person’s advice. This section however must be understood to be dealing with the actual decision-making process, but does not oust the obligation of cabinet to account to parliament for the president’s actions. Cabinet must account to parliament for his actions. These are two distinct processes.
In the House of Lords decision in the case of R v BBC [2003] All ER 977 Lord Hoffman said “ …In a society based upon the rule of law and separation of powers, it is necessary to decide which branch of government has in any particular instance the decision making power and what the limits of that power are. That is a question of law and must therefore be decided by the courts.” He goes on to say that the “… The principles upon which decision making powers are allocated are principles of law. The courts are the independent branch of government and the legislature and the executive are, directly and indirectly respectively, the elected branches of government…” He goes on to say “…When a court decides that a decision is within the competence of the legislature or executive, it is not showing deference. It is deciding the law”.
In a situation such as we have in Botswana, where there are express provisions in the constitution that Cabinet accounts to parliament for the actions of a president in exercise of his executive functions, it is difficult to see how parliament can be kept in the dark about an agreement that is fundamental to the economic interests of Botswana. A president is in terms of the Court of Appeal decision in Williams v The State, Civil Appeal No. 25 of 1989, a Minister. A president is therefore duty bound to account to parliament as part of the Cabinet.  Must there be court action to get Cabinet to account to parliament for the actions of a president in exercise of his executive functions?
Interestingly the abovementioned House of Lords decision seems to be making a distinction between an independent institution and an institution that is directly or indirectly elected. It looks like at the heart of this claim of independence lies the power of the courts to determine who has what powers. This puts a different texture to the notion of separation of powers as commonly understood. Very often people talk about a check on executive power. This now seems to be a rather inadequate description of the nature of the relationship of our three arms of government.
I know that in the past one former Attorney General is said to have suggested that separation of powers did not really exist in Botswana. It now seems that separation of powers is really a ranking, where the courts are the independent branch of government with power to determine the decision making powers of the three arms of government. So as we question the independence of our judiciary we must bear in mind the nature of the relationship.
I know that there are some who doubt the integrity of our judiciary. I think some of the doubt is founded on a failure to understand that even the most despicable character has a right to be heard by our courts. The success at court of someone who is otherwise known to be corrupt is not evidence that our courts are corrupt. Success at court depends on one’s ability to prove one’s claim. We should not confuse the question of credibility of a witness with credibility of a judge. Just because I am corrupt does not mean that a judge who determines a matter in my favour is corrupt.
We must understand that our courts do not initiate proceedings. Someone must step forward with a claim. It is only when a claim is properly before court that the courts come into action. For example if the Law Society believes that the President is overstepping the mark in regard to appointment of judges of the High Court and Court of Appeal it must bring its issue to court. No purpose is served by making arguments and threats of litigation. One cannot fault the courts for failing to act on an issue that is not properly before them. 
We find ourselves in a situation where parliament does not ensure that Cabinet accounts for the actions of a President and where former presidents and cabinet ministers pen autobiographies, but the people have no right to access information held by the government. This means that our people are fed one-sided stories. The question is what purpose is served by this type of situation? No nation can advance on the basis of keeping its citizens ignorant. I know that in some countries they have tight control over information but in the not too distant future they will pay the price.
As a nation we have a choice to inform our people or to keep them ignorant of issues that are central to their wellbeing. We will however pay the price either way. The question is which situation is more profitable to us as a nation. In my view it is better to allow our people access to information so that they become informed people to avoid a situation where former presidents, ministers, and the media present pictures which are not entirely accurate. It is now clear that we have failed as a nation to generate alternative sources of income because we have been looking at a distorted picture.
