Thursday, April 9, 2020

The Air Botswana saga: Part 2

When I wrote last week I emulated the philosophers who believe that things begin at the end (The Sunday Standard April 29 ÔÇô May 5 2007).Our journey comes to an end today ÔÇô at the beginning. This is only logical since the privatisation policy began in 2000 when Parliament gave the nod of approval. I would plead with the reader to note that such approval was expressed, not by a legislative act but by a parliamentary motion.

Broadly speaking, most people know that governmental decisions or policies that the Cabinet wants to clothe with the force of law will be placed before the Parliament by way of a Bill read several times before it can be passed and receive the presidential assent. In contrast, a policy which it is not sought to invest with the force of law does not go through this cumbersome process. It is enough for parliamentarians to debate it and carry a motion adopting the policy. The policy would thus have been invested with democratic credentials, but not legal power.

As Miers and Page put it, this is what makes such a policy be regarded as having a greater claim to be respected than Cabinet decisions that have not been legitimised in this way.

In short, the policy is not a legislative measure but commands greater respect than would a Cabinet directive.

It neither binds the Government nor the citizen but (until revoked) the Parliament. Nevertheless, the citizen whose right or interest is affected adversely by policy formulation or implementation can claim a legitimate expectation in the event of deviation by the Government. One instance is adoption of a development plan that in effect expropriates an owner’s proprietary rights.

From time to time, the competent authorities may experience difficulty with implementation, or the policy may simply be rendered otiose, thus necessitating revision or modification.

The nature and extent of governmental intervention will depend on the gravity of the problem. It follows that where implementation may be harmful and require substantive interpolation or departures, the Government will be disposed to approach the legislature for sanctioning. The Government, as a matter of strict law, is not bound (but would be wise) to do so lest it is visited with the wrath of the courts.

This is how Mr Skelemani, MP, should be understood when he said recently that no agreement has been concluded about Air Botswana that can be said to infringe the Privatisation Policy, or the Act. I will revisit this matter in the course of our discourse. I kindly ask the reader to indulge and dispose of a niggling issue raised by Mr Boyce Sebetlela, MP, (Midweek Sun, May 2, 2007).

I must first remind myself that I should strive to make things simple but not any simpler as the leading twentieth century scientist, Albert Einstein, teaches us. Second, I should explain to the reader that because of my legal training, my approach is to write on government from the standpoint of the constitution and other laws. In 1974, an eminent constitutional lawyer, Professor Nwabueze, made this important observation about the preoccupation of lawyers with rules of law and their disdain for the practice of government as the concern of political scientists. My own orientation, fostered largely by a sojourn in the Opposition, has enabled me to apply the method of political economy in my analysis of social processes. But I digress.

The issue above is introduced by Sebetlela’s lengthy historical narrative (I mean no disrespect addressing him in the shorthand). Shorn of all frills, the narrative can be summed up thus: (i) the negotiations leading to privatisation of Air Botswana are conducted in secret, and “must stop so that MPs can be availed full information in conformity with the spirit and aspirations (note that Sebetlela omits to say “and the letter”) of paragraph 31 (page 9). In parenthesis, this paragraph sets out principles of privatisation, among which is mentioned the benefit of all, transparency, equitableness, employee interests, and so on, and emphasises that Government will drive the process ; (ii) Government is transgressing the Privatisation Policy because Air Botswana will be liquidated and the employees retrenched; (iii) as a device to undermine the legislature’s role of watchdog, most of the steps would have been completed by April 3, 2007, “when Parliament is in recess”; (iv) not only must the legislature be consulted by the Government, it should be involved in the negotiation exercise and the Government should have “negotiated with Parliament first” in respect of Airlink’s proposal prior to placing it before the official negotiating team “given the fact that it went against what was originally agreed with Parliament in 2002/2003.” Sebetlela also writes that there “is no mention of involving Parliament at all from start (sic) of negotiations to their conclusions (sic).” (I did warn about the narrative’s length.) Now, what is to be made of all this?

I am not privy to what may have been initially agreed at Government enclave nor would any such an agreement take this matter farther because the primary sources of reference in my analysis are the Air Botswana (Transition) Act, and the Policy. Arguably, the same would be the case in any contemplated litigation (see, e.g., Mmegi May 2, 2007, p 3). Therefore, I shall confine myself to what I think will be the evidence canvassed in court, as opposed to nuances and legal sophistry.

First, Sebetlela complains that negotiations have been conducted sub rosa. This grievance can be linked to another, which is suggestion that the Parliament ought to have been involved from start to finish. Apart from the fact that we are yet to arrive at “finish”, if the parliamentarians had desired to participate from the beginning, that is their prerogative. But they should have provided specifically for this when passing the Air Botswana (Transition) Act; and it is not too late to approach the Government to be let in, or, that failing, to open the window themselves by amending the Act. Apart from this, we all know that sensitive negotiations ought to be undertaken in complete secrecy and confidence.

In any event, Sebetlela’s story itself militates against his conclusion. The serious reader who has laboured through his narrative will have noted that by his own admission parliamentarians were consulted at various stages: (i) in 2000, they adopted the privatisation policy; (ii) on Tuesday (May 1, 2007), he proclaimed on BTV’s “The Eye” that, if my memory serves me well, he was fully behind the Government and during 2001/2 he sold the policy to the public at large; (iii) in 2003, the legislature enacted a law conferring ministerial powers and functions for policy implementation, but, significantly, excluding parliamentary participation and accountability; (iv) according to Sebetlela, in April 3 2007 the Acting Minister, Mr Ramsden MP, placed before the Parliament a six-page document entitled “Status of proposed privatisation of Air Botswana ÔÇô briefing for Honourable Members of Parliament.” The point made is that regardless of the pros and cons of the approach taken to privatise Air Botswana, the contention that there was no consultation, or that there was an ulterior motive, has, rather, a hollow ring to it.

Sebetlela’s main complaint is probably that some parliamentarians should have been brought on board to assist in the negotiations. This is not fact, but what I think having regard to the evidence which has been supplied solely by Sebetlela himself. For instance, phraseology such as “negotiated with Parliament first”, “no mention of involving Parliament at all from start (sic) of negotiations to their conclusions (sic)”; “given the fact that it went against what was originally agreed with Parliament in 2002/2003”, in their combined effect, could lead some to this conclusion.

But the conundrum is why the Parliament gave the portfolio minister a carte blanche, even more so conferring upon her statutory power to delegate to “any other person, the exercise of such rights”, minus a provision expressly governing oversight. True, the Constitution deals with Cabinet responsibility to the National Assembly, but that is in a general sense.

Other issues are Air Botswana’s continuity, the nature of the portfolio minister’s remit, and the legality of transactions negotiated or concluded under the law. If one reads section 3(1) of the Act, not in ellipsis as Sebetlela does, but wholly and in context, it is clear that once registered the new company will continue to exist as if it were not newly created by incorporation under the Companies Act, but rather existed as such under the repealed law. In this, the Parliament is giving birth to that which at the same time it destroyed. This is a legal fiction.

What are the Minister’s powers and functions? These have been fully ventilated in my previous article, as also the issue of the powers of the new company to deal with the assets and liabilities of the erstwhile parastatal. The main point is that, once registered, the new company will be governed by a less onerous regime and, importantly, will not remain a State-owned public entity in perpetuity. As such, the company can be wound up voluntarily or involuntarily. (Nevertheless, I must caution that asset stripping can be a profitable tax avoidance scheme for the new owners.)The whole goal of privatisation is that, generally speaking, targeted parastatals eventually become private companies with zero governmental participation save their regulation.

The last point on transaction legality has been dealt with by the Attorney General, Dr Athaliah L. Molokomme. The Interpretation Act, with a few notable exceptions, sanctions transactions performed in terms of the Air Botswana (Transition) Act.

This matter is not about the so-called doctrine of separation of powers. Admittedly, in the language in which the provisions of the Constitution are couched, it is much more difficult for Parliament to exercise control over the executive powers of the President than is the case, say, under the constitutional system of the USA. Nevertheless, the constitutional relationship between the legislature and the executive must be based on mutual trust and consultation. The days of “a King need merely play the King” are past us. This perhaps is Sebetlela’s main point.

I have attempted to argue that the issue is about the Parliament abdicating its responsibility to enact a comprehensive, overarching law to govern privatisation, as previously called upon to do by the Deputy Editor of The Sunday Standard newspaper. Mr Spencer Mogapi and I are both concerned about the architecture and infrastructure of privatisation. The issue is about the flagrant disregard of advice to establish an independent, competent PEEPA.

RELATED STORIES