In exhuming a 15-year old Ombudsman report about then Vice President Ian Khama flying military aircraft, parliament overlooked one crucial aspect of what is contained in that report.
Khama attracted the attention of then Ombudsman, Lithebe Maine, by continuing to fly military after he had retired from the army to join politics. Of his own volition, Maine instituted an investigation and in the report that he later produced said that it was not “advisable” for Khama to fly Botswana Defence Force aircraft when he was no longer a member of the army. The inadvisability came down to the difficulty of what action would be taken against Khama if he damaged such aircraft. In terms of the BDF Act, disciplinary action can only be taken against active members of the army in the event they damage BDF property. Maine’s argument was that as the law stood, the BDF commander would be unable to take action against Khama in case he damaged any one of the BDF aircraft because he was not a member of the army.
In the course of his investigation, Maine interviewed Khama who told him that part of the deal between him and President Festus Mogae to join politics was that he would continue to fly military aircraft. In Maine’s analysis of the BDF Act, such indulgence was incompatible with the law. Subsequent to the publication of the report, the Office of the President released its own statement saying that the whole investigation and report were “unnecessary.” Then Permanent Secretary to the President and current Botswana High Commissioner to Australia, Molosiwa Selepeng, said that the government would ignore Maine’s report. Part of ignoring that report entailed not dealing with the legal points that Maine, a lawyer who had served a stint as acting High Court judge, had raised. Selepeng only stated that Khama had never been found guilty of any wrong-doing but never went into explaining what would happen in the event he damages army aircraft. To date, as Khama continues to fly limitary aircraft, the government had not addressed the legal points that Maine raised.
In the only instance that Khama publicly spoke about this issue, he said that those who were complaining were “jealous” of him. He too never addressed the legal points that Maine said made his use of BDF property problematic. Parliament revisited the issue when the Committee of Supply debated budgetary proposals for the Office of the Ombudsman. Francistown South MP, Wynter Mmolotsi said that the government itself doesn’t take the Ombudsman seriously and he gave the example of Maine’s report.
“This Department recommended that President Khama should stop flying army aircraft. That recommendation was made a long time ago but even today, he is still flying army aircraft with impunity. It seems that this recommendation fuelled his impunity,” Mmolotsi said.
The Vice President and Leader of the House, Mokgweetsi Masisi, raised a point of correction to the effect that the Ombudsman had acted outside his mandate because he didn’t have powers to express a personal opinion on the issue.
“That was unlawful,” he said.
This defence was never mounted in 2001 when Maine released his report and it is only now, 15 years later, that the government has rolled it out. The other oddity of what the Vice President said is that the report itself doesn’t say Maine acted outside his mandate and that this defence was never raised when the report came out. Maine never questioned Mogae’s powers to grant Khama such permission but he pointed out that Mogae’s exercise of presidential discretion rubbed against the BDF Act. As president, Mogae was also Commander in Chief of the BDF. The Act remains unchanged and Khama remains in the pilot’s seat of BDF aircraft.
Mmolotsi was adamant that it was wrong then and it still is wrong now for Khama to fly BDF aircraft. The sour back-and-forth between the VP and MP reached a point where the latter said that Khama was using BDF aircraft like “toys”. Masisi found such characterisation disrespectful and promptly enlisted Speaker Gladys Kokorwe’s assistance to get Mmolotsi to withdraw his statement. The house rules say that “the name of the president shall not be used disrespectfully during the debate”. At a point where the MP mentioned South Africa with apparent intent to draw a parallel with the Botswana situation, Kokorwe cut him off with “We are not in South Africa.”
Finally, when he could complete his thought, Mmolotsi did indeed make an unfavourable comparison between the two countries by referring to the Nkandla saga. In the process of making security upgrades at President Jacob Zuma’s homestead in his home village of Nkandla, state money was spent on features that are not related to security in any way. The consequent furore led to an investigation by the Public Protector who recommended that Zuma should pay back the money that was spent on non-security upgrades at Nkandla. Initially, Zuma refused to do so saying that he personally never authorised that such upgrades in the first place. The opposition Economic Freedom Fighters, a militant party led by Julius Malema, hopped on the controversy, at one point turning parliament into a circus as its members chanted “Pay back the money!” in reference to the South African president. With Zuma digging his heels in and the Public Prosecutor insisting that he should pay back the money, EFF went to the High Court. Only then did the president indicate willingness to pay back the money.
“That’s an example of a country that respects the decisions of its institutions,” said Mmolotsi. “My impression is that in Botswana, institutions are either merely ornamental or were established to target certain people at the exclusion of others. I am proposing that this department should be given powers and adequate resources to enable it to investigate all issues relating to maladministration. These include whether a vice president can use BDF aircraft for electoral campaigns when he can use cars instead.”
He proposed that in the future, the minister responsible for the Office of the Ombudsman should table a bill that would the department teeth to take appropriate legal action.
