In a blatant denial of the rule of law, Botswana Democratic Party (BDP) and Umbrella for Democratic Change (UDC) Members of Parliament last month connived to sneak through parliament a last-minute self-serving bill, granting themselves retroactive amnesty from having violated campaign finance laws. Five days after the Sunday Standard carried a front-page story revealing that the current Parliament faced being dissolved for possible violation of electoral finance laws by sitting MPs, politicians who often spend their time jousting with one another were last month frantically conspiring to advance a sleazy legislation to shield themselves from punishment for breaking the law.
Punishment for violating the campaign finance laws carries a penalty of up to two years in prison. The amendment to the Electoral Act which was tabled by the Minister of Presidential Affairs, Kabo Morwaeng to retroactively make illegal campaign financing legal was sneakily calendared for December 20th after all newspapers had closed for the Christmas vacation. Tabling the amendment, Morwaeng stated that, “I beg to move in terms of Standing Order 72.3 that the Bill be proceeded with as a Matter of Urgency. Reasons being that Honourable Members of this House are required by Section 87.1 of the Electoral Act to have submitted their returns of election expenses for the 2019 elections by 26th January, 2020. Tabling of the Bill in the ordinary manner will mean that the Bill will not be debated in the current meeting of Parliament and this will have the undesired effect of subjecting the Honourable Members to the low threshold that the Act has set for election expenses since 2004.
Morwaeng indicated that all members of Parliament had agreed that the bill be tabled on a certificate of urgency. Indications are that all 57 Members of Parliament across the political divide had breached the electoral finance laws which set a threshold of P50 000 00 on election expenses and could thus not file their returns of election expenses because they were guilty of violating the Electoral Act. In serious danger from having broken the law and facing possible jail term, the MPs passed a new law preventing their own punishment.The MPs agreed to increase the threshold of election expenses from P50 000 to P 2000 000. There was however another problem; the MPs had committed the offence against the Electoral Act prior to the mitigatory legislative change, so they decided to apply the amendment retroactively to August 2019 thus re-defining their criminal conduct as legitimate. The amended law no immunises them from the consequences of their crime.
Debating the amendment, Member of Parliament for Selebi Phikwe West, Dithapelo Koorapetse told Parliament that, “just to clarify that I associate myself with the views of the Minister. It is a matter that I personally raised with him, the Leader of the House, His Honour the Vice President and my colleagues from this side of the aisle, in terms of the inevitable compliance challenges if we were to leave the figure as it is. There are many ways to look into this matter, but I think we have discussed with the General Assembly and the wisdom of the majority was that the figure as presented by the Minister be the figure that we will agree on.
My hope Honourable Speaker is that, there would be comprehensive review of the Electoral Laws of Botswana including during the review of the Constitution of the Republic. It is at that point that we will make our view heard on the general principle of declarations made by Members of parliament or politicians in general. In short Honourable Speaker, I do not think we should delay that much on this point because it was thrashed out this morning at the General Assembly. I stand to fully support the Bill as presented by the Minister.” Francistown West MP Ignatius Moswaane also supported the Bill saying it helped protect MPs from legal problems for failing to comply with the Electoral Act.
The only Member of parliament who expressed unease with the bill was Member of Parliament for Tonota, Pono Moathlodi who argued that the minister had all the time in the world to present the bill in the normal course. Moathlodi pointed out that tabling the bill under a certificate of urgency presented parliament, the bill and its sponsors in a bad light. Five days before Morwaeng tabled the emergency bill, Sunday Standard ran a front-page story under the headline: “Botswana faces a long spell of election anxiety”, revealing that Parliament faced being disbanded for possible violation of electoral finance laws by sitting MPs.The newspaper reported that until the petitions filed with the High Court are concluded the Independent Electoral Commission (IEC) cannot produce a final report on the outcome of the elections and that Botswana Patriotic Front (BPF) President Biggie Butale whose petition was thrown out by the courts could still launch another petition after election returns have been presented to the returning officer.
Section 87 of the Elections Act as read with Section 117(b) i. Section 87 sets a time limit of 90 days after election results are announced for every candidate to submit a return of expenses to the returning officer. Section 117 then gives an aggrieved person who relies on illegal practice, 21 days after the day on which the return was furnished to the returning officer to file a petition.So far Botswana’s sitting MPs have historically been allowed to get away with not filing financial returns in accordance with the Electoral Act. At the time of writing the story, the Sunday Standard indicated that it had established that, none of the sitting MPs had filed their returns as demanded by the Act.
Scores of aggrieved politicians were expected to latch on this violation and launch a new round of petitions.
In an earlier interview with the Botswana Gazette, the IEC confirmed that no MP filed returns after the 2009 and 2014 general elections acknowledging that this was a violation of the Electoral Act.The petitions were expected to plunge Botswana into a Constitutional crisis: section 75 of the Botswana Constitution makes it an offence for a person to sit or vote in the National Assembly without authorisation. None of the MPS in the current Parliament had fully complied with the Electoral Act.
