Wednesday, January 27, 2021

How independent are Botswana’s oversight institutions?

Dear Spencer,

The recent relocation of the offices of the Directorate on Corruption and Economic Crime (DCEC) and the Directorate of Intelligence and Security (DIS) from the Ministry of Defence, Justice and Security to the Ministry of Presidential Affairs has once more re- ignited the debate on the true independence of our country’s oversight institutions.

Public perception abounds that these institutions do not enjoy the true independence that they otherwise ought to be enjoying in a democratic set up like ours.

The perceptions are buttressed by the fact that their heads are appointed by the president. The candidates are not subjected to public hearings before appointment. In some instances the appointments are even made without advertising the vacancies.

The secrecy under which some of the appointments are made has reinforced perceptions that the heads are political appointees and by extension tend to serve the interests of the appointing authority instead of the public that they are established to serve as per the mandate of the promulgation of their institutions.

The institutions do not further report to Parliament although they were created by Acts of Parliament and are invariably creatures of the National Assembly.

Lack of financial independence is another sticky point as the budget of most of these oversight institutions forms part of the total Ministry of State President’s budget allocation to which they report.

Their operational independence is also in doubt owing to their reporting structure ÔÇô in this particular case reporting to the Office of the President rather than the National Assembly or parliament.

By their nature, oversight institutions should provide the necessary checks and balances on the executive arm of government.

However, invariably the predominance of the executive branch over the legislature has negative consequences for the separation of powers and functioning of the checks and balances.
Spencer, it certainly boggles the mind why the executive has elected to maintain such a tight grip on these oversight institutions.

For heaven’s sake, why are they required to report to Office of the President instead of the National Assembly? Were they not promulgated through Acts of Parliament? Was their creation not meant to clearly define separation of powers? Were they not established to keep the necessary checks and balances on the executive? Were they established to serve the public and not government?
Is it not therefore only logical that they report to the National Assembly instead of the Office of the President? Is the current reporting structure not defying the very essence and logic of their creation?

To me it totally defies logic why as independent institutions they are required and made to report to the Office of the President.

I am inclined to argue that the arrangement that they report to the Office of the President is deliberately designed to emasculate them of their independence and ensure that they toe the line of the executive.

For the oversight institutions to be truly independent, they must be allocated their own sufficient budgetary resources. They must be adequately staffed and should have their own premises from which to operate. The legislative framework under which they operate should be clearly defined so as to empower them to deliver efficiently on their mandate.

In the next phase, I will demonstrate how the executive branch of government is compromising the independence of these important national public institutions.
Yours,

Joseph Balise.

Dear Joe

Before I even go into details, already I can discern that your views on these organizations are an odd mixture of utopia, a shaky grasp of practicality and an outright disdain for authority.
You talk about financial independence. Do you expect say DCEC, Ombudsman and the judiciary to be financially independent? Independent from who? And on what basis?

How can they be when as you know all these bodies are in the business of using money rather than making it? My recollection is that neither of these bodies is run on a commercial basis?
I do not see how relying on government for money ultimately takes away operational independence of these organisations. What is important to me is that there are explicit laws that give all these bodies a clear line of authority and operational independence.

My understanding of the operations of the organisations, at least on the basis of the statutes that created them is that whatever link there is with any minister or ministry is purely for administrative purposes. In other words whatever minister there is at the apex of these institutions is purely for purposes of going to parliament either to seek funding or to present reports from such bodies ÔÇô not for operational or supervisory purposes as you seem to insinuate.

I agree with you that oversight organisations should serve to enhance the theory of checks and balances. In my opinion that is what is happening in our instance, especially because at operational levels these organizations do not account to anyone individual ÔÇô least of all a minister. You could be right to say that nominally a president could meddle, but that could very much be as a result of weakness or more often incompetence on the part of say DCEC, IEC, Ombudsman and the heads of such institutions as is so often the case. Experience shows that even the President’s powers are very often confined to the early stages of appointment. And I see nothing wrong with that. Remember that when things go horribly go wrong, somebody has to be accountable to the public and in a democracy such ours the buck stops with the president. You make a point that these bodies should report to parliament. I think that is what is currently obtaining. They do so through a minister who provides an administrative link between themselves and parliament.

You are wholly correct to say the appointments of the Heads of these bodies need an overhaul. As of now it is a royal mess, so to speak. The case in point is the recent appointment of the Ombudsman. I doubt she even has any pride in her new job. And this has nothing to do with her level of professionalism.

The crude and unmistakable patronage that shrouded the appointment simply takes away the kind of respect and detachment that are requisite in the job. And it is not the incumbent’s fault. If anything she is the victim of an obsession to control everything by those in power.

I think we improve processes of appointing these people, without our authorities losing out on who they want in their positions. As you so rightly point out it is perception that is play. And I doubt the appointing authorities are on top of it.

But to turn around and start talking about financial independence is my opinion sheer acts of clutching at the straws.

Yours

Spencer Mogapi

Dear Spencer,

In its covert operations, the executive no doubt creates an impression in the eyes of the international community that it upholds the rule of law and respects the independence of the oversight institutions while the contrary holds true, in my view.

There is a concerted plot by government to undermine the operational independence of these institutions willy-nilly.

For all intents and purposes, government is not heeding civil society activists calls aimed at enhancing the true independence of oversight institutions. These institutions have to be independent in all spheres of operation and must never be made to toe the government line. This is especially so given that their checks and balances mandate amounts to an advisory role.

The importance of using financial independence to secure the political independence of these institutions is imperative. It is a recipe that must never be overlooked or understated.

One good practice is the use of a publicly advertised job vacancy for the recruitment of heads of these all important independent institutions. The recruitment procedure based on the vacancy must be open and transparent. A special parliamentary committee must be assigned to play a role in the selection process based on the vacancy notice in addition to holding public hearings for potential candidates.

Such procedures will no doubt help to improve the pool of applicants. Nonetheless, such procedures cannot replace the importance of guaranteeing and replacing political pluralism in the selection process.

I raise this particular issue on the issue of the recruitment of the heads of these institutions on the back of the appointment of Festinah Bakwena as the new head of the Ombudsman office following the untimely death of Ofentse Lepodisi.

Despite her outstanding civil service career, I am inclined to argue that in my view given the primary investigative role of that office, she was not the right candidate for the job.

Bakwena is not a professional investigator or a lawyer. She was merely handpicked by President Ian Khama to fill the vacant position. The work of the Ombudsman involves a lot of investigations from complainants who are aggrieved with the treatment meted out by government officials. In my view the post needs somebody with investigative and legal training as prerequisites.

It is little wonder that following her appointment, Lobatse Member of Parliament Nehemiah Modubule proposed that in the future such vacancies must be advertised so that a pool of suitable candidates is identified before an appointment is made.

I entirely agree with Modubule. If there was nobody within the office of the Ombudsman suitable for promotion, an external advertisement should have been floated to afford the appointing authority ample candidates from whom to choose to fill the void.

I have nothing personal against Mrs Bakwena. She is a professional of impeccable integrity and I hold her in high regard. I nonetheless strongly feel she was thrown in the deep end of a job she is not qualified to do. Whether she will be able acquit herself meticulously in the new position still remains to be seen.

I am also reminded of the executive’s contempt to act on decisions by the Ombudsman. I believe Spencer you would vividly recall that the executive under former President Festus Mogae disregarded a finding by the first ombudsman, the late Lethebe Maine that it was wrong for then vice-president, Ian Khama to fly the Botswana Defence Force aircraft.

In my view, oversight institutions must be empowered to approach the courts for the enforcement of their decisions if they are disregarded with impunity, as happened in the case of Khama flying the BDF aircraft when he had long retired from the army. Alternatively oversight institutions must be empowered to enforce their own decisions.

Simply put, their decisions must be binding on the executive lest public perception is reinforced that they only exist in name and as whitewash.

They were created to serve the public without fear or favour and as such they must never be politicized and their decisions disregarded with impunity.

Yours Joseph

Dear Joe

Once again I find myself in a position where I have to advise you to resist the temptation to fall into a kind of behavior often associated with mob psychology.

In your contempt for authority you are mixing up issues so much so that you end up clouding what is otherwise an explicit subject of governance with the personalities involved. That is unfortunate.
As you are so well aware, I am not a great fan of this government. But I always avoid charging them with crimes they have not committed. Doing so means people stop taking us seriously, or at the very least you stand to be accused of paranoia. And already I am beginning to sense that you kind of detect evil in everything that this government tries to do. In your book they are a group of people who are not up to anything good. In other words they always are seated in a dark room planning what evil they can visit next on this country. I disagree with them on many things, but I do not think they are so infinitely bad.

Certainly mistakes were made in the past as when the former President moved the goal posts against the Ombudsman in the case of Vice President flying BDF aircraft.

But that was more a case of political weakness on the part of Mogae than impotence on the part of the Ombudsman.

To his credit the Ombudsman had done all that was expected of him as empowered by law, the very law you are so keen to denigrate as ineffectual.

In here you should blame not the Ombudsman but the then President for lacking the guts to administer the bitter medicine on his deputy who as you would recall was in any case much more powerful, politically at least than the President. Mogae, you would recall had to go and beg Khama to join politics under the terms and conditions set by Khama. And who knows, flying BDF aircraft was one of the terms?

It is in here that I again charge you with deliberately mixing up issues that are otherwise not related!

Yours

Spencer

Dear Spencer

Before I am derailed off the thrust of the debate, it suffices that given the importance of the oversight institutions as providing checks and balances on the executive, there has to be a mechanism through which their effectiveness is also monitored.

In this respect, one is inclined to propose that parliament should form a committee that is responsible for monitoring these institutions and enforcing their mandate. The committee would also in turn be responsible for implementing their decisions.

This is important because government has often disregarded recommendations and decisions made by these institutions. Such a parliamentary committee should also in turn report to parliament. Although this appears a tedious exercise, it is in my view plausible.

As one author so rightly put it, the fundamental question that seeks to be answered is – Who guards the guardians? And who guards the guardian’s guardians? This question is very appropriate in all respects.

These oversight institutions cannot be left to do as they please. They as a matter of necessity should have a clearly defined framework guiding their operations. Their mandate must be clear and unambiguous.

In the same vein, they ought to be controlled one way or the other. However, such control should not in any way be designed to compromise their independence. Independence and true independence is key to their functionality.

In conclusion it is therefore important to discuss the role of the media in the relationship between parliament and oversight institutions.

The media should serve both to amplify the concerns identified by oversight institutions. The media should become valuable allies in the oversight of the executive.

The oversight institutions must produce useful and easily understandable analytical information reports. The reports should also be made public so that the public is not kept out of the loop of what their findings are or what their recommendations including decisions are.

In addition, there must be follow up reports to ensure speedy and timely implementation of recommendations.

Capacity building within the oversight institutions is imperative for the delivery of the mandate.
The parliamentary committee should also have a strong secretariat to help it carry out its mandate.
The reports (of both oversight institutions and the special parliamentary committee) should thus be important inputs for the policy and law making processes.

As I sign off, I reiterate my conviction that oversight institutions are helpful in the fight against corruption and minimizing conflicts of interests and as such no efforts should be sparred in ensuring that they enjoy outright independence.

It is however important that in their function, they should not turn themselves into some witch hunting instruments targeting unsuspecting innocent prominent personalities and members of the public.

Yours Joe Balise

Dear Joe

I am stunned by how little importance you attach to these organizations you are so fervently defending being run by appropriately competent and qualified people.
The biggest problem, the way I see it is that people currently running many of these organizations are so weak such that they defer and confer to the executive without them being nudged or called on to do so.

In journalism it is called self-censorship.

It is not like they are told what to do. They merely fall on the line, on their own. Because they think they owe their jobs to the executive and from the look of things they are hell bent on keeping those jobs, they deliberately sidestep the laws governing their oganisations in favour of pleasing say the President, a Minister or for goodness sake, even the Permanent Secretary to the President.

That to me is a glaring sign of weakness on the part of those appointed to become CEOs, or whatever they are called.

There is no question that President Khama’s leadership style is skewed in favour of stamping his authority in all that comes his way, but in all fairness to the man you cannot now blame him for all the weaknesses of all heads of statutory bodies including those he inherited from his predecessor.

The problem, I think is with those people who continually fail to use the law to empower themselves and their decisions.
Yours

Spencer Mogapi
P.S
There is a misperception doing rounds that for a President to have total control over any department that organisation has to be physically under the Office of the president
I think this is as crazy as it is senseless given the fact that the President appoints all ministers. He can easily control a department whatever way he likes even if such a department is at the ministry of agriculture or that of Trade. All he has to do is instruct the minister what to do, or better still sack a minister and replace them with his obedient person. On that note I think we are reading too much in the recent transfer of DCEC and DIS to the Office of the President. The problem, in my opinion had everything to with the personalities and relationships involved between the Minister of Defence, the head of DCEC and that of DIS and very little to do with the President himself. Otherwise in as far as the relocation relates to the president everything remains the same. He still calls the shots.

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