Home » Columns » Declaration of Assets & Liabilities: non-negotiable tenets (Part 2)

Declaration of Assets & Liabilities: non-negotiable tenets (Part 2)

Publishing Date : 13 August, 2019

NDULAMO ANTHONY MORIMA
EAGLE WATCH


Last week, we discussed what we refer to as the ‘non-negotiable tenets of a Declaration of Assets & Liabilities law’. This, obviously in view of the Declaration of Assets & Liabilities Bill which has been the subject of heated debate in Parliament.


Just to remind ourselves, we identified those tenets as the ability to effectively combat the scourge of corruption; the ability to build integrity; and provision for effective codes of conduct, whose object is avoidance of corruption. The other are the provision for use of useful software to verify information declared; provision for the application of new training techniques to reach civil servants; and provision for conducting effective communication campaigns to foster transparency.


Not only that. Persons to whom declaration is made should be impartial; asset declaration information should be accessible to the public and there is need for passage of a law on Freedom of Access to Information. The other essential tenet is the target of a few officials with high levels of perceived risk in different areas of public administration and application and enforcement of appropriate and proportionate sanctions.    


As promised last week, this week, we critique the Bill against the aforesaid tenets, of course taking Botswana’s peculiar socio-economic and political circumstances into consideration. However, in doing so, we shall not lose sight of the fact that there are universal standards in respect of such law. First, the tenet that persons to whom declaration is made should be impartial. This is important because it will ensure that all are treated equally and fairly regardless of position, socio-economic status or political affiliation.


This is even more important considering the fact that there is a general feeling that some individuals, especially leaders of Opposition political parties, are often targeted by government through politically motivated investigations and charges. In our view, one of the most troubling aspects of the Bill is that declaration is to be made to the Director General of the Directorate on Corruption & Economic Crime (DCEC).


It is common course that the independence of the Director General of the DCEC has always been an issue, with many arguing that the fact that he or she is appointed by the President, acting alone, makes him or her susceptible to influence by the President. This concern is not without basis. Section 4(1) of the Corruption & Economic Crime Act, Cap. 08:05 provides that “The President may appoint a Director on such terms and conditions as he thinks fit.”


Being a politician, the President is unlikely to appoint a person whose political affiliation he does not know. So, the chances that the President would appoint someone sympathetic to his own political party are very high. In the unlikely event that the President exercises restraint and makes an apolitical appointment, the concern, which was raised by, among others, the Leader of the Opposition, Honourable Advocate Duma Boko, is that as per 4(1) of the Corruption & Economic Crime Act, Cap. 08:05,  such appointment is on such terms and conditions as he thinks fit.


What if such terms are as to favour him, his relatives, friends, members of his political party, etc? What if the terms are that he, for instance, cannot be the subject of any investigation by the DCEC? With specific reference to the Declaration of Assets & Liabilities Bill, what if the terms are such that the Director cannot take any action against him, his relatives, friends, members of his political party, etc if issues arise from their declarations?


It is for this reason that the call that declaration should start with the President himself disclosing the terms and conditions under which he appointed the DCEC Director are justified. No doubt, if the DCEC Director were appointed in an impartial manner, with checks and balances, and on terms and conditions determined by Parliament, for instance, he or she would be the most appropriate office to which declaration is made. But that is not the case.


So, because of this defect alone the Bill also fails another crucial test-the integrity test. Because of these two defects alone, the Bill will fail in its most important object- the ability to effectively combat the scourge of corruption. Second, the tenet that asset declaration information should be accessible to the public. International best practice has shown that one of the most effective ways to ensure this is passage of a law on Freedom of Access to Information.


Of course, the Minister of Presidential Affairs, Governance and Public Administration, Honourable Nonofho Molefhi, is right in saying the Declaration of Assets and Liabilities Act will work in liaison with such other already existing laws as the Data Protection Act and the Financial Intelligence and Agency Act, but the Freedom of Access to Information Act is the best suited. Through the law on Freedom of Access to Information, individuals, the media and civil society are able to access public information, including on declaration of assets and liabilities.


Again, Honourable Molefhi is right in stating that, under the proposed Bill, the media or the public will be free to apply to the DCEC Director General on the information they want to source; why they want it and the purpose for which they will use it, but the reality is that such can not be effective if it is not done under the Freedom of Access to Information Act.


Of course, since like all information, information on one’s assets and liabilities, raises such issues as the right to privacy and dignity, such law is essential not only to allow access to information, but also to regulate how the information is used with respect to human rights and liberties. Thirdly, is the tenet regarding targeting a few officials with high levels of perceived risk in different areas of public administration.


Making too many public officials the subject of the declaration of assets and liabilities requirement can only make the task too onerous and costly, with the result that it becomes ineffective. It is in this regard that government has to be commended for agreeing to amend the Bill to reduce the classes of public officials who are subject to the declaration requirement.


I agree with the President of the Alliance for Progressives (AP), Honourable Ndaba Gaolatlhe’s view that office bearers should, at a minimum, include Members of Parliament (MPs), Members of the Judiciary, Councillors, Chief Executive Officers (CEOs) and other executives of Parastatals, Permanent Secretaries and key officers involved in procurement. Cabinet also deserves commendation for agreeing to amend the definition of private enterprises with regard to CEOs as they also receive government money.


Cabinet also deserves commendation for agreeing to increase the years of applicability of the Declaration of Assets and Liabilities Act to officials who left office from two (2) years to five (5) years. Next week, in last part of this series, we will compare Botswana’s Declaration of Assets and Liabilities Bill with that of selected countries, with examples taken from various continents, not just Africa.

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