Criminal procedure bill, a deliberate

Gaontebale Mokgosi | Monday February 7, 2022 06:00

RAP briefly reviews how the concept of neoliberalism – a political theory guiding politics of Domkrag, has contributed to the founding of the Criminal Procedure and Evidence (Controlled Investigations) Bill.

It elucidates the overall architecture of the institutional maze which contains it, and the deep causes of the shift to the punitive management of poverty.

The Criminal Procedure and Evidence (Controlled Investigations) Bill has to be seen from the longer histories and wider contexts of the political economy of Botswana Democratic Party (BDP) politics. It requires a sustained analysis of how economy (poverty, wealth, independence, competition, and so on) and formal and informal politics are also co-produced under BDP system of rule. The Criminal Procedure and Evidence Bill is not aimed at fighting crime, as its supporters insist, or criminalising elites in the opposition, as its critics assert but rather it is about having to further BDP state neoliberal economic policies prioritising capitalist market relations and profit accumulation. For RAP, the Criminal Procedure and Evidence Bill illustrates the wide and complex web of power relations enacted around the criminalisation of poverty, and related ideas and practices.

It reveals a close link between the ascendancy of neoliberalism, as ideological project and governmental practice mandating submission to the “free market” and the celebration of “individual responsibility” in all realms, on the one hand, and the deployment of punitive and proactive law-enforcement policies targeting delinquency and the categories trapped in the margins and cracks, on the other hand.

Like the Anglophone nations, the BDP State has strongly consolidated its nature as a neo-liberal market economy, leading to significant downsizing of government and strong pay restraint.

Neoliberalism is the hard edge of individualised constructions of risk and responsibility where vulnerability is reconfigured as individual (and at times family or community) failure, deception, and criminality. As a practical matter, Neoliberalism reframes the structural creation of vulnerable individuals and populations (and the refusal of collective risk and responsibility for the non-wealthy) into a neoliberal vision of responsible and irresponsible (or simply bad) individuals in competitive markets.

This trend is part of broad socio-economic dynamics in contemporary liberal capitalist societies where state and private practices have increasingly come to over-regulate people with severely limited economic resources. BDP as a party that subscribes to neo-liberalism, holds that one of the limitations preventing enhancement and competitiveness of the economy is the inefficiency, unreliability and high costs of public services.

To solve these problems in providing public services, the privatisation programme is considered a “strategic component of the economic policy” and it comprises several objectives: a) to reduce the number of state entities; b) to transfer public sector activities to the private sector; c) to sell some companies or assets. The UNDP report (May 2021), on Inequality in Botswana states that – “As in other developing countries, Botswana is experiencing a process of structural transformation with a premature tertiarisation of the economy.”

Paradoxically, faithful compliance with these economic recipes, imposed by international financial bodies such as International Monetary Fund (IMF) and World Bank, has made services more expensive, weakened the agricultural, livestock sectors, caused a deterioration of living conditions, increased the inequality gap, accelerated the debt spiral and significantly widened the gap between those who have more and those who haveless.

Moreover, changing the national economy to tertiarisation economic determinant perplexes in that our economy is still wanting in ensuring food security and manufacturing demands as well as related quality labour skills needed for the sectors.

The transition to neo-liberalism by BDP has produced a widening gap between rich and poor and sharpened inequality in Botswana. All these measures, have given rise to a strong transfer of purchasing power towards the richer sectors to the detriment of the income of the poorer sectors of the population.

The (IMF, 2012) report states that “Botswana’s economic model has not always been inclusive, and it has disproportionally benefitted a small portion of the population.” Botswana is, presently, one of the most unequal countries globally with the 9th highest Gini coefficient according to the UNDP report, 2020.

The average Gini coefficient is 0.50 for Botswana, which is higher than the African average of 0.44 and the OECD average of 0.32 (UNDP - Inequality in Botswana, May 2021). The BIDPA report (May 2019) on - Consumption Inequality in Botswana pronounces that - “Despite the rising inequality in Botswana, less work has been done to decompose both poverty and inequality.”

It further states that the benefits of economic growth in Botswana “are not shared equally amongst population groups, and economic growth benefits the non-poor and non-nationals proportionally more than it does the poor and nationals.”

In essence, the BDP government has failed to chart a path that ensures a fairer and more inclusive society in Botswana and this has led to several undesirable political and economic impacts including; slowing the country`s GDP`s growth, reducing income mobility, rising household debt, political polarisation, and higher poverty rates.

The BDP neoliberal agenda has left significant sections of society behind; over 56% of Botswana citizens are identified as living in extreme poverty, (Global MPI Country Briefing 2020). As a matter of fact prosperity in Botswana is dependent on household borrowing and rising property prices.

The neo-liberal credit derivatives has allowed middle-income households in Botswana, in particular, to “eat credit” in order to maintain their living standards, while their real wages stagnated. This situation is fuelling popular anger against the status quo and so-called metropolitan elites.

Because neoliberal economic policies lead to ever greater inequality, it inevitably brews recalcitrance and triggers resistance; it translates into diffusing social instability and turbulence among the lower class; and it practically leads to undermining the authority of the state. This has brought discomfort and trouble to the privileged people (including very rich - business owners and representatives of the ruling party) experience with confronting poverty, and their relation and even responsibility to that poverty.

In the conscience of the BDP ruling elites this increase in inequality and decrease in socialised responsibility for ordinary folk is perceived as the natural (or only possible) order of things. And it is because the BDP State favors the financial system over the well-being of its population.

For the BDP ruling class, this requires institutional contraptions that will anchor and support, an enlarged and energetic penal institution in the criminalisation of poverty.

Moreover, given that economic scarcity has been a key political rationale for BDP state and that it has continued to refuse serious budget transfers to facilitate social investments that benefit the non-wealthy, such as gainful employment, affordable housing, quality education, and social grants to the unemployed and retired citizenry, it has now resolved to resort to dimensions of “governing through crime” initiatives. This is achieved by drawing not only on neoliberal theory and policy-prescriptions, but also on techniques of criminalisation as a response to poverty.

The Criminal Procedure and Evidence Bill is part of the answer to the question of how to manage the increased economic and social insecurity that BDP politics of socio-economic discrimination and deprivation generates for people at the lower end of the socioeconomic spectrum.

Its linked ideas and presumptions masks the structural sources of vulnerability produced by BDP government including; poor education, poor paying jobs, mass unemployment, and criminalisation through cultural stereotypes and hyper-policing and -incarceration.

This process has made the State more important and has placed it at the service of major transnational companies that need it to maintain the conditions of accumulation and competitiveness , to preserve labour discipline and to increase capital mobility while blocking labour mobility. As a consequence of these, BDP government finds it logical to “naturalize” having to punish the poor as part of the ‘common sense’ of resolving joblessness and idleness.

Rather than having to come with a radical economic plan for funding job creation, the BDP system sanctions criminal charges to those who are in the weakest social and often financial position to meet the basic needs of life. The prison and myriad other forms of social control have become one of the easier and faster ways through which BDP government can address poverty.

Hyping “insecurity” and promoting crime-fighting in and around districts of dereliction to the rank of government priority, ahead of fighting unemployment, has definitely shifted government priorities in favour of penal posturing and action.

It is the postulation of RAP that the Criminal procedure and Evidence (Controlled Investigations) Bill defines a “Neoliberal road” to the penalisation of poverty. It is the defining backdrop of the BDP State to make a brutal swing from the social to the penal management of poverty. Yet focusing on criminality obscures the effects of regulatory barriers to obtaining employment, housing, public benefits, and other critical areas of need.

The Bill is a punitive revamping of public policy that weds the “invisible hand” of the market to the “iron fist” of the penal state. It is guided by the same philosophy of moral behaviourism and seeks to employ the same techniques of control, including stigma, surveillance, punitive restrictions, and graduated sanctions to “correct” the conduct of the poor.

The proposed law is a very deliberate political tactic that seeks to move individuals and groups to action through what Jonathan Simon calls “governing through crime”.

The itch to enact such a Bill is the BDP State’s response to people at the bottom end of the neoliberal labour market and their reaction to public socio-economic coercion. With this Bill it is very clear that the profound aim of BDP is not to eliminate poverty; but to simply remove it from the public realm, discourse, and politics. For BDP, solutions are to be found in the “management and regulation” of the poor, “rather than political intervention” that addresses the long-term and structural conditions that have produced their situations. In this way the law is a weapon and a damaging failure for the poor: it is used against them by virtue of their being poor.

Concurrently, the Criminal procedure and Evidence (Controlled Investigations) Bill once passed into a law will not only affect those already facing high levels of social exclusion, but will also undermine the democratic interests of all citizens and our ability to interact as communities. It is in light of the above discernments that Real Alternative Party shuns the Bill with utter - most disgust because it is constitutively corrosive and profoundly injurious to democratic ideals!