Wednesday, September 23, 2020

The Air Botswana saga or making a mountain out of a molehill

I was invited to write this essay. What is needed (I was being persuaded) is not a treatise, but a short treatment that brings the case for the privatisation of Air Botswana to the sceptics, indeed to the citizens who are the beneficiaries and must decide who is right. And so I am also writing, eager for the fray.

Let us emulate the philosophers and begin at the end. The Attorney General, Dr Athaliah Molokomme, has issued a statement on the privatisation of the national carrier (see, for example, Daily News April 25 2007). In her statement, the AG cautions that in dealing with this important question of the privatisation exercise, the relationship between the Parliament, the executive and the courts must be understood fully “if we are to maintain a healthy, stable and effective democracy”. The AG then sets upon legal analysis of the doctrine of separation of constitutional powers, a feat previously attempted by Dick Bayford when he erroneously claimed that Montesquieu “coined the concept”, which he certainly did not. (The Sunday Standard April 15-21 2007, p 7). (One coins a phrase, but conceives a new concept).

The Attorney General is a political appointment, whose constitutional remit is limited to giving the Government legal advice. It is undesirable for her to stray into the political arena, a construction likely to be placed upon the words given in quotation marks above. Indeed, the reader who has worked through the diatribe by Mr L. Boyce Sebetlela, MP (Botswana Guardian April 27 2007, p 8), would have encountered precisely this attitude. In addition, the belated presidential Press Secretary’s statement in the same newspaper attempts to correct what some may consider a faux pas.

Let me make some important philosophical distinctions on theory and application of theory that might aid us in understanding the AG’s statement. Although some may find that the understanding of legal analysis is made easier by relating theory step-by-step to a given fact scenario (e.g.,

constitutional law theory and the impasse between the Parliament and the Cabinet), I think the problem can be tackled intelligently by one simply confining oneself to what the law says about Air Botswana’s privatisation, not what it ought to say. Here, I am not concerned with the AG’s views (they can be distinguished from her legal opinion, in regard to which, naturally, there is restricted access); rather, I am worried about public misperceptions in regard to which blame should be apportioned equally between populist parliamentarians and the popular media.

The importance of the distinction between what is and what ought to be cannot be overemphasised. It is the distinction, from the point of view of legal analysis, between what we may call “positive” law and “normative” law. The point made is that the AG as a lawyer is concerned not so much with describing our constitutional system as it ought to be (a pet subject for political scientists and other mavericks) but, rather, with the present reality of what the case is, in other words, the written, positive constitutional law. This, I believe, is the context in which the AG’s statement must be read, not as an apologia for the Executive or privatisation per se but an appeal to the facts, no matter how unpalatable these may be to some.

What then, are the facts? (i) In 2000, the Government (both Parliament and executive) adopted the privatisation policy (in a document called Government Paper No. 1 of 2000 containing);
(ii) PEEPA was created under the policy with the primary purpose of coordinating and implementing the policy, advising the Government on privatisation, and overseeing all aspects of the implementation of and identifying public entities as candidates for privatisation;

(iii) In 2003, the Parliament passed the Air Botswana (Transition) Act providing for conversion of the parastatal to a public company owned by the State, with powers conferred upon the portfolio Minister, subject to agreement by the Minister of Finance, to sell its stock or other securities to a private third party or parties for the benefit of citizens. The Minister, a repository of the rights of the Government as shareholder, is also empowered to delegate the exercise of such rights “to any other person.” It is significant that the words in quotation marks are not defined or qualified. (A power of attorney to PEEPA or a private agency for instance, would meet the requirements of the law.) By this law, Air Botswana assets and liabilities are ceded to the new company, and clearly the new company takes over the contractual obligations of its predecessor and can deal with matters such as conditions of employment (remuneration, leave, promotions, termination, retirement, gratuity, pension, etc);

(iv.) The policy document proclaims that one of the factors upon which the success of privatisation is contingent is “an appropriate legal framework”. To date, the Parliament has defaulted to enact such an enabling law.

These statements are common cause, not assumptions, and as we are told by the eminent economist, Professor Lipsey, from this point of view disagreements over positive statements [as opposed to normative ones] are appropriately settled by an appeal to the facts. We are compelled to appeal to these facts in a discourse of the present controversy. The solution lies in analysis of the privatisation policy and the Air Botswana law, not in unpacking the Constitution less so in deconstructing an archaic (on occasion anachronistic) doctrine of the separation of powers (whatever it may mean). As to democracy, our constitutional system can survive well enough without relying on the doctrine for sustenance. De Smith and Brazier in their groundbreaking work, Constitutional and Administrative Law, have expressed that the doctrine, “like the rule of law, has usually been discussed as one which ought to be embodied in a system of government.” They make the point that its virtues should not invoke such an enthusiastic chorus as that today deafens us. The plea is to refrain from making a mountain out of a molehill.

I have previously urged our parliamentarians to discharge their legislative functions not only regarding privatisation, but also regarding international trade treaties and agreements that create legal obligations that impact on the population. So far this plea has fallen on deaf ears. In Air Botswana the Parliament has, typically, abdicated its responsibilities and chosen the Executive as the scapegoat. Here are a number of reasons why they should legislate.

First, the strong political will to privatisation policy implementation witnessed in recent years is a non-starter if not prosecuted within the parameters of an appropriate, overarching statutory framework. Second, a “professionally qualified and independent entity” whose membership is based on “merit and professional ability” with “the Board, not the Minister”, electing the Chair and appointing the Chief Executive Officer, as exhorted in the policy document (pp. 5, 6), is obligatory. While PEEPA is doubtless a regulatory and supervisory authority it would be straining credibility too far to suggest that it is autonomous or that its board was appointed in a transparent manner. Only recently it experienced such trauma that governmental intervention was essential. Third, the citizens will want to know the fate of the Investment Trust Fund created as a vehicle by which Government purchased securities will be held on their behalf and that of future generations. In short, laws need to be enacted and some amended by the Parliament before decisions on privatisation are made.

I would plead with the serious reader to continually ask this question, “Why does Parliament refuse to pass an enabling law?” Or to ask, “What current law will help me in understanding or solving this problem?” I will not attempt to answer the first question since it would be highly inappropriate to presume to know how a parliamentarian’s brain functions. Rather, I should content myself with attempting to answer the second. The current law is the Air Botswana (Transition) Act. This law works conjunctively with the privatisation policy, and where the two instruments conflict, the courts will uphold the provisions of the Act to the extent of such conflict. In the absence of an overarching legal framework, the privatisation policy cannot oust the relevant provisions of the Act.

The execution of legislation or making and applying policy are executive functions. There is a potential danger here of wrongly applying law or policy. Where legislation is breached those adversely affected have recourse to the courts. Sometimes the legislature can simply amend the law, or carry a motion with binding effect on the Executive. However, a parliamentary resolution binds only the Parliament.

In other areas, there are constitutional overlaps. For instance, the Executive can negotiate, enter into and execute various treaties that create binding legal obligations at international law, without the participation of the Parliament. Thus it can also be argued that rule making powers have been vested in the Executive, though the Parliament can decline to ratify a treaty.

To sum up, any attempt to stop implementation of some aspects of the privatisation policy by parliamentary resolution would be ill-advised. If it is felt the privatisation of Air Botswana is being implemented illegitimately, the courts can be approached; alternatively, a motion can be carried by the legislature. If implementation is under the Act but in breach of policy, the Act will prevail.

However, my researches indicate that the Minister is yet to give statutory notice of the date when the Air Botswana (Transition) Act shall come into operation. The question is whether until then transactions can be legitimately carried on under the Act. In other words, does this law apply despite the absence of notice?

That one I leave to the constitutional law gurus.

Michael Mothobi is a trade scholar. He can be contacted at [email protected]

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