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Declaration of assets & liabilities: does it violate privacy?

Publishing Date : 07 April, 2015

Ndulamo Anthony Morima
EAGLE WATCH


The debate over whether or not such high ranking functionaries of the State as the President, Vice President, Speaker and Deputy Speaker of the National Assembly, cabinet ministers, Members of Parliament (MPs) and judges should, in terms of an Act of Parliament, be required to publicly declare their assets and liabilities has been going on for some time now.

Thanks to MP for Selibe Phikwe West, Honorable Dithapelo Keorapetse, the debate has resurfaced. In this article, we consider the merits and demerits of declaration of assets and liabilities. We also consider whether or not declaration of assets and liabilities violates the right to privacy.

However, before such consideration it is apposite that we outline what declaration of assets and liabilities entails. The declaration, which is done under oath through a statutory form, usually requires such information as bank account details with bank balances supported by bank statements and a letter from the bank; cash in excess of a certain amount e.g. P 500,000.00 held other than in bank; bonds, stocks, shares and similar investments including any such property over which a right of disposition resides in the declarant; and immovable property, e.g. houses, land and farm buildings.

The declaration also requires information about monies invested in mortgages or business ventures, including crops and livestock; motor vehicles owned, on hire or on loan; values held in safety deposit boxes; insurance policies; any other property; other property held by a person other than the owner, whether in trust or otherwise; income from all sources including perquisites such as house, entertainment, allowances and rentals; liabilities including guarantees and property acquired or disposed.     

While in some countries a public register which is accessible to members of the public is kept, in some the declaration is made to certain officials and the register’s access is restricted to specified officials. For example, the Speaker of the National Assembly, cabinet ministers and deputy ministers and judges and other officers appointed by the President make the declaration to the President. All MPs make the declaration to the Speaker of the National Assembly. This is the model which the Minister of Defense, Justice and Security, Honorable Shaw Kgathi, is reported to have informed Parliament is used in Botswana.

Also, while in some countries the register includes the assets and liabilities of the official’s spouse and children, in others it only includes the concerned official’s assets and liabilities. It is not clear whether or not under the model followed in Botswana the official’s spouse and children are included.

Those in support of declaration of assets and liabilities argue that it will go a long way in combating corruption because officials will be deterred from obtaining assets corruptly knowing that if they did such would be easily detected from the register of assets and liabilities. They also argue that it will instill financial discipline in the officials since they are unlikely to incur unreasonable liabilities for fear of being labelled as financially irresponsible, something which, in the case of elected officials, may make them lose elections.

The proponents of declaration of assets and liabilities also argue that in the case of judicial officers it will not only ensure that the cardinal ‘fit and proper’ requirement is maintained, but will also promote judicial independence since the officials are unlikely to obtain assets and incur liabilities in a manner that compromises their independence for fear of being removed from office for misconduct.

Those opposed to declaration of assets and liabilities argue that it will expose the officials to such security risks as robberies, extortion and blackmail since many people, including criminals, will know of their assets and liabilities. They contend that if the official’s spouse and children are included the risks will be heightened, exposing families to kidnappings and abductions. The exponents also argue that declaration of assets and liabilities will inevitably violate the right to privacy and will, therefore, be unconstitutional. It is the latter point that we wish to consider in depth hereunder.

In terms of section 9(1) of the Botswana constitution, “except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises”. Though this section does not protect the general right to privacy, but protects the privacy of home and other property, the general right to privacy is an international phenomenon. In its normal application it, as in section 14 of the South African constitution, provides that “everyone has the right to privacy, which includes the right not to have- (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed”.

The aforegoing limitation notwithstanding, the right to privacy, at least in terms of most countries’ common law, has been interpreted to include the right not to have the privacy of a person’s private and confidential information, e.g. assets and liabilities infringed.

Narrowly interpreted, in terms of section 9(1) of the Botswana constitution if an official or their spouse and children consent to declaring their assets and liabilities, there will be no violation of their right to privacy. At common law, such violation can only subsist if they render such consent under duress. But the issue is broader than that. It should be more about the constitutionality of the Act of Parliament or the Executive decision providing for the declaration than it should be about the officials’ consent. We will return to this point shortly.

 Section 9(2) of the Botswana constitution provides that “nothing contained in or done under the authority of any law (e.g. Act of Parliament permitting declaration of assets and liabilities) shall be held to be inconsistent with or in contravention of this section (section 9(1)) to the extent that the law in question makes provision (a) that is reasonably required in the interests of defence, public safety, public order, public morality, public health…; (b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons…; (c)...; (d)…, and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society”.

Section 9(2) is the limitation clause which permits the violation of the right to privacy under the circumstances set thereunder. For example, if it can be demonstrated that the declaration of assets and liabilities is required for the purpose of protecting the rights or freedoms of other persons, it will not be unconstitutional to require certain officials or any person to make a declaration of their assets and liabilities.

In other words, though such would ordinarily amount to a violation of the right to privacy and, therefore, unconstitutional, such violation will be permitted because of the limitations in section 9(2). In the result, we are compelled to conclude that declaration of assets and liabilities does not per se violate the right to privacy. Each case will be judged on its own merits.

However, while the limitation with respect to the officials themselves is likely to be held as justified in terms of section 9(2), it is doubtful whether it will be justified with respect to spouses married out of community of property and children, especially those who have attained the age of majority or are married.

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