Had it not been for the relentless pressure from Opposition Members of Parliament and the civil society formations here and elsewhere, the Criminal Procedure and Evidence (Controlled) Investigations Bill would have passed and ultimately signed into law in complete format it was presented to parliament. Any reasonable and objective person would have identified the Bill was in bad taste and was therefore, liable to elicit resistance from the broader society let alone from the Opposition MPs. Yet the Minister of Defence, Justice and Security representing the Executive and his political party the Botswana Democratic Party (BDP) Hon Kagiso Mmusi, mounted some courage and conviction to present the Bill as was and more crucially, on a certificate of urgency. His fellow MPs, as I have witnessed and continue to do so in the presentations of other Bills from other Ministers, saw nothing untoward and praised the Bill until their voices turned hoarse during the debates as always. The very same Minister Mmusi and his fellow MPs have climbed down somewhat, from their original positions not necessarily because they believe the Bill is bad but because they were hugely embarrassed by so many dissenting voices for not picking and identifying its many flaws. I still maintain the climbing down is a face saver more than anything else.
The Bill has been roundly criticised and justifiably so in my honest view amongst others, on its intrusion into our civil liberties particularly the tapping of our phone conversations under controversial circumstances; the assumed identities issue where the Bill sought to wreak untold havoc and misery on the broader citizenry by unleashing State operatives who could not be held accountable; the somewhat compromised oversight mechanisms to ensure the Bill once signed into law, would be implemented for all its intents and purposes. At the core of this Bill was the evident intention of the Executive under the guise of implementing the Financial Action Task Force (FATF) recommendations to violate with such impunity, our personal liberties as enshrined in the Bill of Rights of the Constitution.
FAFT is described as ‘an intergovernmental organisation founded in 1989 on the initiative of the G7 to develop policies to combat money laundering. In 2001, its mandate was expanded to in include terrorism financing…. The objectives of FAFT are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system’. It is abundantly clear from the mandate and objectives of FATF that the Bill as presented to parliament fell far too short of meeting such mandate and objectives. The only reasonable conclusion to be made in that regard was to mount a vicious attack on those who would have been identified by the assumed identities to wreak misery and havoc on them. That said, what questions are abound?
The point of departure should be located at the very Executive as represented by Minister Mmusi. It is the Executive that would have conceptualised the idea of the Bill and largely on political than the legal considerations. Cabinet as we all know, is the political arm of government where in most instances, decisions are made for political expediency and political self-preservation more than anything else. That is why cabinet came with the floor-crossing Bill that would subsequently be signed into law. There are many other instances I could mention. From there on my limited information tells me, the legal drafting division of the Attorney General would be approached to draft the Bill. Assuming this division is capacitated with legal gurus who expectedly should know when the Bill and once signed into law will it be good or bad. A pertinent question should be raised: didn’t these supposedly capacitated legal gurus advise Minister Mmusi that what he sought to achieve through the Bill manifestly fell far too short of FATF intended objectives and therefore was bound to elicit public outrage let alone FATF’s? I don’t think FAFT will want to be associated with the tone and format of the CPE Bill.
The spotlight should be focused more on the Attorney General himself than anywhere else in drafting the CPE Bill. As a legal advisor to the Executive, it should go without saying that he should have foreseen the pitfalls the current Bill would create and advise accordingly. I will never know if he indeed advised of such pitfalls accordingly. But is it not embarrassing for the very Bill to be amended on some of the provisions particularly those with legal implications the Attorney General should have ensured are not compromised in whatever form or shape? The only logical conclusion I make is that owing to not only how poorly but how badly the Bill was drafted together with its glaring violation of the Bill of Rights, the Attorney General appears to have played a game where political objectives more than public interests, were at the centre of the Bill hence the broader public outcry on the uncontrolled intrusion into personal liberties.
While amendments to the Bill have been widely applauded, my biggest worry still remains: will such amendments ensure my private liberties for example, will not be compromised in any form or shape. I am raising this on the backdrop of the fact that the DIS, which is one of the agencies that will be central to the implementation of the Bill once signed into law, has largely acted outside the provisions of its founding Act. On paper, there are organisational mechanisms through which the DIS should be called to order should it veer off the road. From how the agency has conducted itself to the sheer chagrin of the some MPs particularly from the Opposition and members of the public, nothing suggests even with the amended oversight functions of the Bill that the DIS will be restrained from being law unto itself. This is occasioned in large measure from the fact the DIS still remains under the overall direction and influence of the President. The initial provisions in the Bill where for example, the issue of assumed identities was viciously contested, is very likely to remain the same with the end result that my personal liberties will be at greater risk probably than ever before. The DIS will clandestinely still remain to run roughshod over other entities of the State and render the amendments inconsequential.
In conclusion, it is fair to argue that the Criminal Procedure and Evidence (Controlled) Investigations Bill was brought to suppress and violate some if not all the provisions as enshrined in the Bill of Rights. It is unpardonable the Executive could present to parliament and by extension to Batswana, a Bill that could evoke such resentment from here and elsewhere. It was brought in bad faith if you asked me. While amendments are welcomed, Botswana’s reputational standing in the eyes of the international community has been severely damaged. Why did the Executive bring such a bad Bill the result of which was to be bad law? I wish the Executive could be honest to itself and the nation to answer this question. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe’. Covid-19 is still very much in our midst. Let us adhere to all Covid-19 safety protocols.
