Every time the Constitution of this Republic is violated whether with impunity or otherwise, my jaw drops. I get so hurt not least when it is violated by some of those privileged to occupy the highest offices in the political and public spheres. These high ranking public officers are by virtue of their positions, spoilt for choice when it comes to advice on matters legal. By any account, there is absolutely no reason why the Constitution is violated with such impunity when legal advice is in abundance. Even without sourcing a legal opinion on the appointment of the Auditor General (AG), the Constitution is pretty clear and straightforward that the office of the AG is protected by security of tenure and remains as such. Therefore, such appointment cannot be varied by anybody except the Constitution as it may provide so from time to time. But the Permanent Secretary to the President (PSP) Rre Elias Magosi is reported to have departed from the prescripts of the Constitution following his appearance before the Public Accounts Committee (PAC). The Weekend Post newspaper dated 11-17 July 2020 is my reference point for this conversation. I am hoping the PSP is properly quoted.
The office of PSP appears to be easily tainted in some instances and with the greatest of respect, by ‘school boy errors.’ In instances where the law is very clear and requires no further interpretation to implement as in the case of the AG, a completely unlawful process is brought in to flout the law. The office of PSP is no ordinary but an extremely extraordinary office that confers a huge amount of administrative and to some extent political power on the holder. This because the holder also operates in a political set up. The holder is the head of the public service and the highest paid public officer for that matter and Secretary to Cabinet. These are massive characteristics of this office where it is fair to suggest that there should be no margin of error. If there should be such margin of error, it should be an honest and genuine one. I am not persuaded it is the case in the subject matter.
At the time of reading this article, the immediate PSP Rre Carter Morupisi would have appeared in the High Court on very serious criminal charges like corruption and abuse of office which if convicted upon, could see him spending most of his late afternoon days in jail. During his tenure as PSP, he did not cover himself in glory given the more than one court judgements that went against him notably the recent Micus Chimbombi matter that ended with a huge cost to the tax payer.
PSP Magosi had a tumultuous relationship as Permanent Secretary in the Ministry of Environment, Natural Resources, Conservation and Tourism headed by Rre Tshekedi Khama back then. During his appearance before the Parliamentary Committee on Statutory Bodies and State Enterprises in 2017, he informed this committee how Rre Khama completely disregarded good corporate governance by running Botswana Tourism Organisation on his own without consulting him as the ministry’s Accounting Officer. The fact that Rre Magosi, apart from what he told the above committee, was very frustrated by how Rre Khama ran the ministry overall, is well documented to a point where he was transferred to another ministry before he quit the public service. It is surprising that back in the public service and at the highest level, he is the one seemingly trampling upon the very good corporate governance prescripts he complained about hence my argument that he is engaging in double standards.
It has emerged from the current sitting of the PAC that the AG Mme Pulane Letebele has been offered a contract of employment by the PSP against the prescripts of the Constitution. Section 114 (1) of the Constitution stipulates in very explicit terms that “Subject to the provisions of this section, a person holding the office of Auditor General shall vacate his office when he attains the age of 60 years or such other age as may be prescribed by Parliament.” Section 114 (2) provides that “A person holding the office of the Auditor General may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.” Section 114 (3) further provides for the steps to be followed “If the National Assembly resolves that the question of removing a person holding the office of Auditor General from office under this section outght to be investigated….” Interestingly, Section 114 (2) on the security of tenure of the AG reads the same as Section 97 (2) on the tenure of the judges of the High Court.
With the above Constitutional provisions as clear as daylight, the PSP told the PAC that “She is on fixed five year contract. It remains a choice of an individual. She was offered the contract. Again this is the contract of employment the incumbent Auditor General preferred. She said yes she wants the five year term and before it elapses then she can apply for renewal. She opted for it….The government may terminate this contract in accordance with Section 26 (2) of the Public Service Act by giving you 3 calender months’notice or paying you 3 months’ salary in advance.” The AG has reportedly refuted that she negotiated the said contract.
It is not clear what motivated the decision to offer the AG this contract when the law on the AG is as clear as daylight as already stated. Was it a set up to terminate it somewhere along the way and get rid of the AG? Was there political influence? These are some of the questions ones asks himself. Even if the AG had agreed to this contract, it would still have violated the Constitution and therefore, unlawful. Whatever the thinking was, it points to the sheer double standards as already stated. The PSP is under obligatory duty to respect the Constitution and do all that it demands. It may very well be pointing to a situation akin to abuse of power considering the usurpation of the law.
If the PSP was any other public officer, this conduct would attract some disciplinary proceedings against him. It is important to mention that while the President has repeatedly talked about his government anchored on strict good corporate governance across the board amongst others, it is the very government caught in the cross hairs of bad corporate governance. The President has previously acted very swiftly in such cases and this one is no different. I am particularly disturbed and disappointed that while the PSP ‘cried the loudest’ when Rre Tshekedi Khama was practising bad corporate governance at the time he was his Permanent Secretary and to which he bitterly complained about and justifiably so, it is him practising the same on other public officers and in this case on the AG. I am prepared to be persuaded otherwise as always. Judge for Yourself!
We are not out of the woods yet. Health protocols are still our only available best defence to fight against the Covid-19 pandemic. Wash your hands with soap and clean water frequently, ensure social distancing and continue to wear your masks at all times.