Under the umbrella of the rule of law, accountability stems from the fact that adherence to this rule of law requires states to commit to a governance approach based on respect of rule for the law and, also, on the basic premise that no one, whatever the condition or rank, is above the law and so, any action by any person can be challenged in a court of by any party aggrieved by the action of that party.
Constitutional democracies have looked to secure state accountability through the separation of powers among the three arms of the legislature, the executive and the judiciary. These institutions are expected to contribute to the attainment of state accountability through ‘checking’ and ‘balancing’ each other’s exercises of power.
A December 2018 research paper titled “State Accountability in Botswana” found that securing state accountability is dependent upon a push to secure three developments; namely being the need to ensure that statutorily provided remedies and control become more effective.
According to the research paper, this is possible through securing greater independence for tribunals, and it is also possible through empowering the Ombudsman to prosecute perpetrators of maladministration.
By the same token, inquiries could be convened more regularly and procedures on how to proceed after the inquiry should ideally be clarified and codified to ensure “that maladministration is tackled, and the state held accountable”.
Secondly, while the provision of civil and political rights is to be celebrated, “securing state accountability hinges on making socioeconomic rights part of the state accountability framework”.
Ideally, this would be best achieved through the explicit provision of these socioeconomic rights in a re-worked Constitution. This, however, would be a significantly difficult and protracted undertaking.
The paper emphasises that “until that is achieved some more attainable ways of injecting socioeconomic rights into the state accountability framework should be explored”.
For instance, it is possible to sign and ratify international laws which protect socioeconomic rights such as the International Convention on Economic, Social and Cultural Rights.
Following this, it would then be possible to import socioeconomic rights into the country’s laws by giving effect to these new laws, as well as laws already signed but not given effect as the Rio Declaration.
According to the research paper, “the courts can also import these rights into law by reading them into existing and entrenched civil and political rights”. Thirdly, securing state accountability in Botswana depends on the judiciary adopting “a more liberal approach to standing where people approach the courts seeking to have illegal, irrational, and procedurally improper decisions reviewed”.
The paper laments that considering judicial reluctance to do so, “it is quite difficult to see how the judiciary could be motivated to embrace such an approach to standing aside concerted drives to encourage them to do so using workshops and seminars”.
It may also be possible to sway the judiciary by swaying public opinion in the first instance, through educational drives, and then getting the public to apply pressure on the judiciary to adopt a more liberal approach.
According to the research paper, in looking to measure the extent to which state accountability is secured in Botswana, it is useful to begin by noting the Botswana has a Constitution which is recognized as the “leading law of the land”.
Importantly though, “there is no explicit reference to the rule of law in this Constitution”. However, it is quite clear that there is real commitment to the rule of law in several ways. For instance, no one is regarded above the law in Botswana and, Section 10 of the Constitution entitles everyone to due process. Furthermore, Sections 3 to 16 of the Constitution make provision for the fundamental rights that empower any person adversely affected by a decision made arbitrarily.
“It is worth noting that in Botswana as in other states, the actual separation of power is not perfect. For instance, in Section 96 of the Constitution, the President, as head of the Executive, is charged with appointing the Chief Justice of the High Court. And outside of the overlaps in the Constitution, another example of the overlap in state functions entrusted to each other of the three institutions is the fact that the legislature is empowered to impose mandatory minimum sentences, despite the fact that this is a traditionally a function reserved for the judiciary,” bemoans the research paper.
The paper further points that importantly though, as in other states, these overlaps in the functions of Botswana’s state institutions are acceptable on the basis that they serve instrumental purposes which secure effective governance without compromising accountability.
The paper further decries that for all the value that the provision of justiciable civil and political rights and the willingness of the courts to afford people the opportunity to exercise these rights hold for accountability, it is worth noting, in so far as securing accountability is concerned, “Botswana’s Constitution does not entrench socioeconomic rights as fundamental rights”.
Not only that, it also appears as if Botswana has embarked on a systematic and organized effort to “stunt the provision to people of socioeconomic rights. This can be inferred from the manner in which Botswana has ensured that it is not a signatory to the International Convention on Socio, Economic, and Cultural Rights despite widespread recognition of the importance of the rights enshrined in this Convention and recognition of the fact that fully enjoying benefits bestowed on people by civil and political is only possible when their socioeconomic rights are protected”, states research paper.
It can also be inferred from the fact that Botswana has actively worked to avoid “giving effect to treaties that the state has ratified, which would import socioeconomic rights into state law, such as the Rio Declaration” and in the same vein, “the courts have also been reluctant to contribute to the recognition of socioeconomic rights”.
Importantly, “this approach to socioeconomic rights has had the effect of depriving the framework for one of the most potent tools that could be used b y people to effectively hold the state to account”.
The research also held that it is clear that courts in Botswana have certainly exercised their review jurisdiction on the established grounds of illegality, irrationality, and procedural impropriety.
In addition, the courts have done so regardless of the myriad ouster clauses in primary and subsidiary legislation that the legislature and the executive have deployed in an effort to exclude review jurisdiction.
