Friday, September 25, 2020

“Unlawful Presidents and corruption amnesty”

All three presidents we have had have sworn to uphold our constitution yet not one of them has put in place legislation or empowered any structure to give effect to Section 62(b) of our constitution.
The section disqualifies someone who has entered into an agreement to settle a debt and who has not settled the debt in full from standing for elections for Member of Parliament. The idea is to avoid leaders who are in the pockets of their creditors – a captive leadership.

Previous Supervisors of Elections and the Independent Elections Commission were never in a position to make a determination of whether Section 62(b) of the constitution has been complied with. Their pronouncements on nomination were unlawful.

As we all know, we do not have direct election of the president. This suggests that if the constitution has not been complied with in the election of Members of Parliament, then the election of president is tainted. It is possible for the Chief Justice to declare someone duly nominated for the Presidential vote but the Chief Justice is in no position to determine whether such a person qualified to be elected as a member of parliament or not.

All general elections we have held since independence have not been in accordance with Section 62(b) of our constitution. We can, therefore, conclude that our presidents were unlawfully elected.

I have only recently come to appreciate something that the late Paul Rantao once told me. He related a story of what transpired at the Kanye main kgotla. Apparently, Kgosi Seepapitso had lambasted politicians in the presence of the late Kgosi Bathoen II, his father. Rantao said the old man stood up and remarked “O ngwanatje, monna, o ngwanatje”, “You are my son, man, my son”.

Very often, as a nation, we forget that our leaders are our children. It is not always the lure of the outer world that attracts children away from the home, and that keeps them from home. The threat of punishment reinforces the need to stay out of the fold. When your child strays, it sometimes becomes necessary to remove the threat that prevents them from coming home

It has been reported that citizens get less than twenty percent of government tenders. This suggests that citizens are not responsible for corrupting our leaders. It is the foreigners who get the bulk of the tenders who are in a position to corrupt our leaders.

Our sons and daughters, with the threat of investigation and prosecution hanging over them, become captive to foreign interests. In fact, once they have been corrupted they cannot free themselves. To rely on investigation and prosecution is an inefficient way to liberate our leaders from the clutches of foreign interests.

To counter the threat of investigation and prosecution, our corrupted leaders have to generate a successor generation of corrupt leaders. This obviously is of no benefit to the nation. It, therefore, becomes necessary to remove the need on the part of our leaders to generate a corrupt successor generation. We need to break the cycle.

It is in this spirit that I suggest we have a corruption amnesty for corrupt members of parliament, if any are corrupt. I restrict this amnesty to members of parliament for they are our representatives, and if we do not forgive ourselves, who will? I deliberately leave our permanent secretaries because they are public servants under the direct control of the president. He has the duty to replace the corrupt ones, if any are, with people who are not corrupt. Members of parliament on the other hand are our responsibility.

Let us learn from the victorious nations at the end of the Second World War. Though they had been fighting the Nazi, they recognized the value of the Nazi scientists and forgave them their atrocities in return for their expertise. Let us not be pre-occupied with retribution. Let us do that which is of advantage to the nation.

The process of implementing this amnesty is for members of parliament to confess their misdeeds to the president or the Director of Public Prosecutions. Their secrets will be safe since we cannot force the president’s or the DPP’s hand. They, on the other hand, cannot use such information to discredit the members of parliament for we would have given them amnesty. The effect of this is that we will have a leadership core that is free from corruption and the clutches of foreigners.

Further, each constituency must require all candidates to declare their assets in a register to be kept by the Independent Election Commission. Each constituency would then discount any candidate who refuses to register their assets irrespective of party affiliation.

I am not suggesting that we give permanent amnesty to members of parliament through constitutional amendment. That would be disastrous. I am looking at whether the transition period gives us an opportunity to reinvent our leadership. The application for amnesty and asset registers must be in place before the next elections.

I suspect that a majority of our leaders are opposed to the declaration of assets not because they are corrupt but because they would run afoul of Section 62(b) of our constitution. We cannot have leaders who seek to frustrate the constitution by refusing to disclose their asset position. They have to respect the constitution.

The idea that you can somehow have a relationship with foreigners that is more intimate than the one that you have with your own people is fatally flawed. This is illustrated very well by Sir Ketumile Masire disclosing that De Beers did not tell them all about Orapa, and that it possibly knew about Jwaneng long before it disclosed it. The truth is that the foreigner treats you as a cost item irrespective of what he may tell you. As a nation we cannot afford to have leaders who are a cost item in the business interests of foreigners.

I observed at the commissioning of Orapa 2000 after President Mogae commissioned the project. He together with his entourage turned to leave the stage. The two De Beers and Anglo American representatives remained and very briefly bowed in homage to the Anglo emblem. At that moment in time these gentlemen were not with our leader and showed it. They had shut him out even though they were guests in his country. They displayed the nature and substance of the intimate relationship they have with their company.

Nation building is costly. As a nation, we must constantly seek to find each other rather than seek to punish each other. We must sometimes give windows of opportunity for others to escape if it will advance our nation. Our forefathers did this. I believe an amnesty will serve us well.

In terms of Section 34(2) of the constitution the president shall cease to hold office if he violates Section 62(b). We cannot determine whether the president falls foul of Section 62(b) in the absence of a declaration of assets law. It is possible we have a president who should not be holding office because we do not have declaration of assets law.

Rre Skelemani was wrong in stating that there will be no declaration of assets law. He should have merely stated that the President on advice of Cabinet did not recommend the law. Parliament makes law not cabinet. Parliament can still pass the law and send it to the President who may refuse to assent to the law. He would then return the law to Parliament, which may choose to uphold the law. The President would then have to dissolve parliament if he still disagrees. Our leaders must be careful with their language.

Sections 34(2) and 62(b) compel parliament to make the declaration of assets law. The president and cabinet have no choice in this matter. If this was mhele we would be saying “wa chaiwa”.

The IEC must be empowered to implement Section 62(b) of our constitution. Forty years of unconstitutional elections puts us in the same league as Zimbabwe and Kenya. The fact that there is no violence in the face of such blatant disregard for the constitution is testimony to our people’s peaceful nature, not to our leaders respect for the rule of law.

Successive Attorney Generals, Chief Justices, the IEC Chairman, all senior lawyers, and all political parties who have participated in elections owe the nation an explanation.

We now have a Directorate of Intelligence and Security. Its function is to take steps to protect the security interests of Botswana, whether political, military or economic. Failure to uphold the constitution is a political security threat. The president is the master of this entity, can he direct the Directorate to investigate whether he is not a security threat by not putting in place a declaration of assets law to see whether he does not fall foul of Section 34(2) or are we likely to have a president being blackmailed by this Directorate because it has data that shows that he falls foul of Section 34(2)? I believe a president will be better off with a declaration of assets law.

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