Tuesday, September 22, 2020

Beware the dictatorship of the parliamentarians

In this essay, I ask the reader to allow me to show how parliaments can represent both the apotheosis and negation of democracy. I saw an opportunity to advance some ideas on this topic after reading the newspapers recently that the Committee on Subsidiary Legislation, Government Assurances and Motions passed by the National Assembly would sit to consider certain aspects of the privatisation of Air Botswana (e.g., Botswana Guardian 11 May 2007). Although I am not an enthusiast for relying on newspapers or privy to the comings and goings at Government Enclave, I am disposed to treat this information as fact in the absence of anything to the contrary.

The privatisation of Air Botswana has proved to be a topic which is close to the hearts of many citizens, but one regarding which passion has clouded their minds because of the strong emotional appeal of some of the arguments advanced by those who are genuinely concerned with the implications of this process, for example, the looming prospect of employee retrenchments.

It must be recognised at once that a precondition to the implementation (there is no quarrel here about the merits or demerits) of privatisation is a conducive, enabling environment. Such “enabling environment” is a broad concept encompassing among other things good governance, transparency, a legislative and organisational framework and satisfactory physical and social infrastructure. When it comes specifically to social infrastructure the implementation of privatisation has suffered a major setback because both public and investor confidence have been eroded due largely to the shenanigans of certain personalities and this, in turn, has generated wide but mainly negative media coverage.

If public confidence is to be restored in the privatisation process, it is necessary that implementing agencies such as PEEPA must be empowered to carry out their mandate and utilise their capacities fully. This means that Government must reshape especially the legal and institutional structures in order to ensure an enabling environment for the new generation of public companies that is coming to the fore as the result of privatisation.

Government’s conviction is that an over-arching law regulating privatisation is unnecessary and, therefore, project implementation step-by-step is the preferred method. But a major reconstruction exercise (the Government rightly anticipates that the exercise will bring about change in “the distribution of power within a society, as it diminishes the control of the economy by the state”) means that piecemeal legislative engineering is ill-advised, as clearly demonstrated by the experience recently of Air Botswana, one that seemingly has led to both the alienation of public support and intra party schism.

What is needed is an enabling law that confers on the Government a mandate to auction public property, that establishes a professionally qualified and independent implementation agency; that determines the hierarchy of powers and functions and valuation methods (what is the impact on value, in real terms, of deregulating fixed-line services on the eve of privatising BTC?); that sets up a statutory Investment Trust Fund to warehouse shares of privatised public companies for citizens; and that creates specific offences and criminal and civil sanctions so that wrongdoers can be brought to book by a competent prosecuting authority. Anything else simply will not restore public confidence because such law would ensure that sectarian interests are not allowed to “cherry-pick” the most profitable public entities. The improper use of insider information and professional position while the rest of the nation is experiencing limited access to credit which precludes share acquisition is already underway. Therefore, both Government and Parliament must change the approach to implementation.

How can Parliament influence change?

Therein, as the bard would say, lies the rub. On 18 May 2007, I wrote to the Chair of the Committee on Subsidiary Legislation, etc, to raise my concern about recent reports that only three officials have been summoned to appear or produce. I am concerned about any intervention by Parliament that would deny the public a role in resolving this matter while devoting time to what bears all the hallmarks of a witch-hunt. It is because of this new development that I saw the chance to influence the question of the privatisation of Air Botswana to go beyond the present debate.

It is now widely known that I think, rightly or wrongly, the theory that Government has contravened the law is misconceived. Contrary to popular belief, I hold no brief for the Attorney General, Dr Molokomme, although our position is one and the same. Broadly speaking, my view is that Parliament can make or unmake any law but that it is not competent to interdict executive action by motion. Parliament can intervene by repealing or amending the law (e.g. the Air Botswana (Transition) Act), if it is plainly intended to frustrate a specific transaction (e.g., the privatisation of Air Botswana).

The motion by Parliament should be taken by Cabinet as affording an opportunity for discussion of aspects of the implementation strategy. But there is nothing preventing Parliament from rescission of the motion after successful discussions. As such, wise and mature action would only restore both public investor confidence in the privatisation process. The consequences of inaction are too ghastly to contemplate.

The privatisation exercise will be in the economic agenda for at least a few more decades, and so, too, will be the political baggage.

In 1974, Professor Nwabueze wrote: “The legislature should not be free, at its own whim and pleasure, to reject government measures, otherwise it would be assuming the function of the cabinet and the ministers. The government of a modern state cannot be run effectively in parliament…It would be difficult to have an effective government if M.Ps were to be free to substitute their own policy for that of the government.”

Let us pray that our nation will be spared the chaos that has befallen others.
The matter is now no longer about Air Botswana’s privatisation but raises the more important question of approach regarding which some have up to now been unable to see the wood from the trees. In other words, this has nothing to do with the doctrine of the separation of powers or parliamentary sovereignty. Our own Parliament is not sovereign because its powers are subject to the Constitution.

The Standing Orders of the National Assembly set out the Committee’s responsibilities and powers.

The Committee is to “advise Parliament on progress of implementation of motions, etc”. These powers must be read conjunctively with the National Assembly (Powers and Privileges) Act which empowers a parliamentary committee to order any person to attend before it to give evidence or to produce any paper, record or document in his or her possession or control. Clearly, a committee can demand evidence from anyone it likes or disclosure of any documents it wishes to see.
The Committee is investigating a topic which has very much excited the media interest in recent weeks. Because of the public interest therefore, I would specially plead with the Committee’s members to revisit the question of who should be asked to give evidence. I would argue that anyone is free to offer advice (formally called “evidence”) to this Committee, with its permission of course.

This probably is the first time that a “stranger” (as the Act states) claims that a citizen or any other person with an interest in the subject matter of an inquiry should appear before a parliamentary committee and is volunteering to give evidence without a formal invitation or summons. While this writer, for one, may not be the person whom the Committee thinks could help it, there are doubtless differing viewpoints (apart from those of the Minister, the AG or Mr Czypionka) that the Committee’s members may want to hear as well (e.g., the Finance Minister, senior civil servants, PEEPA officials, Air Botswana employees, trade unionists, BOCCIM, lawyers, etc), and so I would plead with the Committee to invite particular representatives of these viewpoints.

The Committee has very extensive powers and can invoke these powers to call for persons (even those unwilling), papers and records as they have done. Therefore, we should be concerned that a person summoned by the Committee is not entitled to legal representation. One should not be hauled before such a powerful body (whose proceedings can be deemed to be judicial for some purposes) to give evidence without being afforded the opportunity of being assisted by a lawyer in proceedings that often involve complex issues of public administration and hierarchical legal norms. Perhaps we could ask Mr Letsididi to gently prod Mr Ridge MP to look into this.

Parliamentary committees appear to outsiders to have a tradition of not engaging the public in its deliberations, the same ground upon which Government is often attacked. While this may be justified in certain circumstances involving confidentiality or national security matters in the present inquiry it is not, and anyway the topic is already in the public domain.

But a more cogent reason why committee business is treated sub rosa could be Order 113 of the Standing Orders as it forbids publication of a committee’s evidence before presentation to Parliament. Thus we are told (mistakenly) in the Botswana Guardian of May 18, 2007 (on p 3) that this Order is in conflict with Order 111(2), which requires a committee to sit privately unless it orders otherwise. I say “mistakenly” because as Mr Bashi Letsididi correctly states Order 113 deals with premature publication whereas Order 111(2) deals with both in camera proceedings and open proceedings, regarding which the committee alone has a formal discretion.

Although Letsididi is spot on when he says a reporter covering the proceedings would be effectively barred from publishing the story before the committee reports to Parliament, it does not follow from this (as he mistakenly implies) that therefore the proceedings are not open to the public. Order 111(2) in no uncertain terms allows the committee to open its proceedings to others when it is sitting, should it be so minded. Accordingly, the comments Letsididi attributes to his interviewee (Mr Ronald Ridge MP) that the two regulations need to be harmonised are not apropos on Ridge’s part. The contribution made by the two gentlemen on this seminal issue should none the less not be played down.
The main point is that only Parliament controls both improper disclosure and access on pain of penalty. One is curious to know how the BCP would overcome this hurdle and lay its hands on the Committee’s record for use in the party’s threatened legal action.
A strong hint though is given by the BCP’s Legal Affairs Secretary, one Gabriel Komboni, reported as saying that this difficulty has been assigned to Mr Saleshando. As it happens, Saleshando, by a quirk of fate, chairs the committee now asking questions.
To be sure, this happy coincidence raises an eyebrow or two and may easily lead to claims of abuse of parliamentary rules or hidden agenda.

The Committee needs to be fired by the public importance of its function, not (perceived) narrow partisan considerations. Supporters of more open government will be inclined to the view that the proceedings of the Committee ought to take place under the gaze of the Press and the public. This is possible were the Committee to invoke Order 111(2) which permits it to grant public access. In addition, the Press can still play the role of watchdog by its mere presence during the Committee’s deliberations or by obtaining the special leave of the Speaker. Strangely, the evidence of the Committee is already being published by the popular media, even if by degrees (Mmegi 23 May 2007). The point, one that Ridge and Letsididi were trying to drive across, is that there are possibilities.
My argument is that nothing but indifference and transparency will guarantee certainty, predictability and voter confidence in our parliamentary processes. Not to do so would be to run the risk that parliamentary committees are inquisitorial processes against Ministers and public servants or that they merely serve as an opportunity to enhance the media profile of parliamentarians. We should not be reading about expressions of “shame”, “regret” or “a very embarrassing admission of guilt” unless someone privy to the Committee’s deliberations is improperly disclosing evidence. To achieve transparency and so on, parliamentarians need to support a more radical interpretation of their rules.
I earnestly hope that my letter of 18 May 2007, if not considered favourably, will at least receive formal acknowledgment and that it will prove to be a useful guide in shaping the future agenda for various parliamentary committees. I have no doubt that, with the new breed of parliamentarians characterised by a youthful daring to venture into uncharted waters of participatory democracy, this expectation will materialise. The lesson of all this is that an excellent opportunity has presented itself to our leaders to foster an effective dialogue between Parliament, Government, the private sector, the press and the public at large. It is in the common interest of all to do so.


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The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.