Tuesday, September 29, 2020

“Civil Servants’ excessive power has harmed Botswana”

*David N. Magang (September 1985)

I present this paper in order to share my views and experiences with my colleagues. In doing so, I attempt to clarify some of the apparent fundamental constraints that frustrate our efforts as a party and government to implement our own policies. Having been a backbencher for 5 and a half years and now in the front bench for 5 months I feel competent to express my opinion concerning the relationship between politicians (ministers) and the public officers in the process of formulating implementing public policies.

There is no doubt that we have problems of implementation. In fact, there are persistent and general complaints that although the ruling party (government) has the best policies on paper, the implementation of our policies requires a great deal of improvement. Although the problems have often been laid squarely on the public officers, as implementers, the politicians too must take even greater blame in that they are ultimately responsible and answerable to the public for the successes or failures of policies of government. In other words as politicians, (Ministers) we have a role to play in the implementation of policies. We must therefore in addition to our responsibility as policy makers ensure that public officers perform their duties faithfully and effectively for the realization of our objectives.

This concern over the inadequate implementational guidance by ministers has been with us for many years and recently the BDP National Congress of 1985 came out very strongly in expressing its dissatisfaction by resolving under Resolution NO. 13 that

“Cabinet Ministers must ensure that government policies are faithfully and effectively implemented by public officers or Civil Servants.”

The import of the resolution is an indication of some of the serious shortcomings in the process of providing political direction to civil servants within the framework of multi party system of government. In my view I feel that we as political masters cannot continue to use public service (or officials) as scapegoats because of failure to provide political leadership, direction and to exercise the constitutional power in the process of formulation and the realization of government policies and objectives clearly and within the their portfolios. Sadly, we do not know that we have this power, and if we do, we do not know how to use it. I feel that more often than not we lack confidence to make decisions. Not surprisingly, the civil servants armed with expertise and intellectual superiority has over the years arrogated to himself the power of his political master.

There has been therefore the loss on the one hand the assumption of power by default in the relationship between the politician and the public officer. In a multiparty system of government which we must periodically appeal to the public to govern the upsetting of the balance of power to favour the public officer must necessarily lead to problems of implementation of policies. Let me give a few fundamental examples in areas which affect our leadership role in the formulation and implementation of our policies.

Constitutional Power and Responsibility

I have often been amazed at the manner in which the constitutional power and responsibility of the Minister have been interpreted within the broad framework of the division of authority in government organizational process. There has been confusion, for instance, on the interpretation of the Botswana constitution and the Public Service Act. It has often been argued convincingly by some politicians and officials that the public Service Act has super ceded the constitution in relation to the power of the Minister to exercise control over his ministry and department. Such interpretation of the constitution vis-à-vis Public Service Act has been unfortunate and misleading.

In terms of the constitution of Botswana under Part III, Section 47, the executive power vests in the State President and subject to the provisions of the Constitution he exercises these powers directly or indirectly through officers subordinate to him.
In so far as the President appoints cabinet it must be understood that the executive power of the president is exercised indirectly through cabinet ministers. Thus Section 50(4) specifically states

“A Minister shall be responsible, under the direction of the President for such business of the government of Botswana (including the administration of any department of government) as the President may assign.

It is clear from the provision of this section that once a Minister is appointed and assigned a Ministry he becomes the Head of the Ministry. He is therefore responsible not only to ensure that government policies are implemented faithfully and effectively, he (as administrator) must also exercise control and superintendence over public officers. As head of a Ministry and its administration no Minister should shield himself by blaming his officials for fail lures of government policies because in any event he has the ultimate responsibility to parliament.

Section 52 of the Constitution states that where a Minister has been charged with responsibility for any department (or any Ministry for that matter) in terms of Section 50 (4) the Permanent Secretary shall exercise supervisory powers under the direction of the Minister. Clearly the Permanent Secretary through other subordinate public officers is responsible for the day to day administration and execution of public policies as determined by the government of the day. Such supervisory powers of the permanent secretary or any official should in no way be interpreted to mean demotion of the Constitutional power of the Minister.

2) Public service Act (PSA)

There has been further confusion caused by the misleading interpretation of the PSA. It has been argued convincingly that in terns of this Act a Minister has no power or control or say in the administration of his Ministry of Department. So convinced are public officers of this view that the normal intervention by a Minister in the exercise of his constitutional power has been considered interference. Unfortunately some Ministers believe this version. Yet in substance the PSA in no way diminishes the Minister’s powers. In fact the Act increases his powers, hence the positive liability of a Minister being ultimately responsible to parliament for any act or omission by an officer in his Ministry. The relevant sections of the PSA are 3, 4, 5 and 6. As I indicated above the executive power of Botswana vests in the State President and he exercises this power directly or indirectly through officers. (Ministers) subordinate to him. The subsequent sections 4, 5 and 6 vest certain powers on the Permanent Secretary to the President, Permanent Secretary, and Director of Personnel etc. However the vesting of these powers on officials under PSA must be understood to be complimentary and subordinate to the powers vested under the constitution.

In other words the PSA was never and is not intended to supersede the Constitution. That is why in drafting sections 4, 5 and 6, care was taken in each case to make them “subject to the constitution.” From the foregoing therefore it is clear that in as much as a Minister is ultimately responsible to parliament for any act or omission by a public officer in his ministry or department the public officer also cannot be heard to say that the Minister is excluded from the control and superintendence of a Ministry. HOW CAN A MINISTER PROTECT A PUBLIC OFFICER IF HE IS NOT IN CONTROL OF HIM? That this view has been held tenaciously by the public office is indicative of our weakness or apparent failure to ensure that our policies are effectively implemented. Surely THE DOG MUST WAG THE TAIL RATHER THAN THE REVERSE.

Civil Service Power

It may be surprising to some of you when I state that part of or weakness to implement our policies is the power of the civil service. The power and the intellectual superiority of the Civil Service (at Management) appear to have been established or accepted to the point where it is argued with confidence that the civil service could and has always run the country effectively without the aid and interference of the politicians who are their intellectual inferiors anyway. This is not surprising because until recently, the policy of government has always been to beef up the public service with skilled manpower at the expense of the private sector. In the circumstances the Civil Service rightly though mistakenly, considers itself superior and eminently suited to run the affairs of this country rather than be mere advisors. They have the education, expertise and experience. They have the information, provide advice, and write speeches for ministers who cannot compose or write speeches for themselves. They can even starve the Minister of information if they wish. It has been said that in many cases and in spite of the advice given, Ministers lack the confidence to make decisions. In other words, civil servants are filling the vacuum because there is political direction. I learned to understand and appreciate this phenomenon myself as a legal practitioner and backbencher, namely for good or bad to depend on what the Permanent Secretary says and not on the Minister. I have learned to appreciate the situation closer in my present capacity. Quite frankly we appear to have been emasculated as political leaders and IT IS TIME WE ASSERTED OUR AUTHORITY WHEN THERE IS STILL TIME. Unfortunately the public has become aware of this weakness and is gradually losing confidence in government.

Recently my colleague, Minister of PAPA had a meeting with PSS and from the minutes of that meeting you must have gained the feeling that that our PSS felt there was a NEW TREND TOWARDS INTEFEENCE BY SOME MINISTERS in the normally smooth running of the public administration. Well, in the eyes of the senior officials, I am one of the delinquent Ministers who dare interfere in the Administration, rejects advice and upsets decisions (appeal on FAP) properly made by experts, etc. The complaints emanated not only from my own officials but also from officials from other Ministries involved in the FAP implementation process. Yet this policy is crucial if we are to achieve our objectives of industrialization and employment creation. The bureaucratic red tape and unnecessary delays in the implementation of FAP (and other financial incentives, credits) is so great and real that we cannot afford to leave the responsibility in the hands of officials.

*Magang, now a retired politician, wrote this internal cabinet memo in 1985 after public concerns of poor government delivery.

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