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Declaration of Assets & Liabilities: non-negotiable tenets (Part 1)

Publishing Date : 05 August, 2019

NDULAMO ANTHONY MORIMA
EAGLE WATCH


Since government tabled the Declaration of Assets & Liabilities Bill before Parliament, there has been stark division between the ruling Botswana Democratic Party (BDP)’s legislators on the one hand and those from the Opposition.


In response to this, some Batswana are surprised because it appears, in view of the narrative created by the BDP, that the Opposition is opposed to a Bill it has long advocated for simply because it has been brought by the BDP. There is, in fact, a more troubling narrative, still perpetrated by the BDP, namely that some in the Opposition are opposed to the Bill because they are involved in corruption, the subject of such law or system which is referred to as Asset Declaration (AD) in some jurisdictions.


Unfortunately, this narrative resonates with some, especially with respect to the Leader of the Opposition, Honourable Advocate Duma Boko, because, of late, he has been visited by the Botswana Unified Revenue Service (BURS) officials regarding his taxes and assets.
This is not surprising because, as observed by Ruxandra Burdescu et al in The United Nations Convention Against Corruption (UNCAC) conference edition titled ‘Income and Asset Declarations: Tools and Trade Offs’, “…the process of developing Asset Declaration (AD) systems is often highly politicized…”


The question is: is opposition to the Bill in its current form justified? In order to answer this question, we, this week, without reference to the Bill itself, discuss what we refer to as the ‘non-negotiable tenets of a Declaration of Assets & Liabilities law’. God willing, next week, we critique the Bill against the said tenets, of course taking Botswana’s peculiar socio-economic and political circumstances into consideration. In doing so, we shall not lose sight of the fact that there are universal standards in respect of such law.


In the final part of this series, we shall compare Botswana’s Bill with that of selected countries, with examples taken from various continents, not just Africa. Ruxandra Burdescu et al, from whom we shall draw extensively in this article, state that “The United Nations Convention Against Corruption (UNCAC) has focused attention on corruption’s corrosive effects and provided a framework for action for countries to tackle this scourge…”


They continue to say “…One of the most important elements of this framework is the process of building integrity and preventing corruption. Developing effective disclosure systems and integrating them into wider anti-corruption programs are critical elements in that process. Income and Asset Declarations (IAD) systems in particular serve an important role…”. From this, it is submitted that one of the non-negotiable tenets of a Declaration of Assets & Liabilities law is its ability to effectively combat the scourge of corruption.


The other is its ability to build integrity. Not only that. It must, of course as read with other laws, provide for and/or enable effective disclosure systems and integrating them into wider anti-corruption programs. Ruxandra Burdescu et al argue that “…When such systems (i.e. IAD) are linked to training and enforced codes of conduct, they can be a powerful tool to prevent corruption and detect the theft of public assets…”.


From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is provision for effective codes of conduct, whose object is avoidance of corruption. Afterall, the purpose of a law on Declaration of Assets and Liabilities is to avoid corruption, the rationale being that if one knows that his or her assets and liabilities are public knowledge, they are unlikely to be corrupt for they would know that it will be easily detected because their asset and liabilities baseline is already known.  


Ruxandra Burdescu et al continue to say “…Although the concept of Income and Asset Declaration itself is not novel, countries are continuously finding new ways to improve their systems: creating and using useful software to verify information declared; applying new training techniques to reach civil servants; conducting forceful communications campaigns to foster transparency…” From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is provision for use of useful software to verify information declared.


Not only that. It is critical for the law to provide for the application of new training techniques to reach civil servants, for instance, the ones who will be involved in the enforcement of the law. As is the case with all laws, the law on Declaration of Assets and Liabilities can only thrive if it has public support and the citizenry has confidence in it. It is for this reason, we submit, that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is a provision for conducting effective communication campaigns to foster transparency.


Ruxandra Burdescu et al continue to say “…Although there may be different purposes for an Asset Declaration (AD) system, the chief determinant of how an AD system is designed is whether it focuses on combating illicit enrichment, the identification and prevention of Conflicts of Interest (COI), or both…” From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is that the persons to whom declaration is made should be impartial.


Ruxandra Burdescu et al continue to argue that “…Granting public access to asset declaration information is another important dimension of AD regimes that can enhance both their effectiveness and their credibility…” According to Ruxandra Burdescu et al “Many countries are struggling with whether and how to make asset declaration information accessible to the public; the central issue at stake being whether or not public access to this information violates the privacy of public officials, or poses a threat to their security…”


We submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is a provision that makes asset declaration information accessible to the public for that, in our view, is the essence of declaration. It is our considered view that for the declaration system to be credible, and to help build the trust of citizens in their government the declared information must be made public, and not kept confidential.


It is needless to state that to meet the objectives of asset and liabilities declaration, the implementing agencies must not only be administered professionally, but should also have sufficient independence to fulfil their mandates, and be subject to sufficient oversight to ensure that they do not abuse their authority. It is also needless to state that Civil society organizations and the media can play a vital role in ensuring that the declaration process meets the desired standards.


It is in this regard that we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is the passage of a law on Freedom of Access to Information which will allow the media and Civil society to play such a watch dog role. Though the extent of a law on Declaration of Assets and Liabilities depends partly on the resources available; levels of perceived risk in different areas of public administration, and the overall objectives of the law itself, Ruxandra Burdescu et al posit that “…experience in different countries has shown the need for governments to weigh certain trade-offs so as to craft an optimal approach to meeting AD objectives within the particular institutional and cultural context in which the system operates…”


According to them, “…facing trade-offs can result, for example, in an approach that limits the scope of coverage of the system, to target higher-risk positions, and not overstretch the capacity of the implementing agency…” From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is its target of a few officials with high levels of perceived risk in different areas of public administration.


Lastly, according to Ruxandra Burdescu et al, “It is also important that countries apply and enforce appropriate and proportionate sanctions. To meet this standard, sanctions and their effects need to be considered across multiple axes: what failures should face sanctions? What types of sanctions should be available? Fines, administrative sanctions, and/or criminal sanctions? How severe should each of these sanctions be? How do these sanctions reinforce the specific objectives of the AD system as a whole? Are the chosen sanctions enforceable?


From this, we submit that the other non-negotiable tenet of a law on Declaration of Assets and Liabilities is the provision, in the law, of proportionate penalties for the various offences provided by the law.
 

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