'Botswana has not fully promoted the rule of law'
Ryder Gabathuse | Monday July 18, 2022 06:00
Mmegi: In your honest view, in so far as the rule of law is concerned, how would you describe the state of affairs under the presidency of Mokgweetsi Masisi?
Mfundisi: The present government under President Masisi, like its predecessors, has not fully promoted the rule of law. If any, they have realised the rule by law. We should differentiate between the rule of law and the rule by law. The use of arbitrary power amounts to rule by law.
The rule of law promotes restraints on the exercise of political power. It protects citizens from tyranny and dictatorship. The current regime promised to promote the rule of law when voted into power.
But the political rhetoric has faded amidst serious erosion of fundamental rights and freedoms of the individual as enshrined in the Constitution. For example, the Directorate of Intelligence and Security (DIS) acts with impunity and immunity in its operations. It was created as an intelligent outfit to provide data and information upon which decisions are made.
But it has arrogated itself powers that are outside its legal remit, for example, law enforcement that is a preserve for the Botswana Police Service (BPS) while corruption issues fall under the mandate of the Directorate on Corruption and Economic Crime (DCEC).
The DIS has the power to detain people without warrant and it violates the presumption of innocence until proven guilty by a competent court of law. Recently, it detained a serving MP on his way to Parliament, which contravenes the Constitution and laws governing the country.
This is an anathema to the rule of law, which subjects state institutions and operatives to the dictates of the law.
State institutions must be bound by the law otherwise arbitrary power and tyranny CRIP?? into our democratic space. The use of the criminal justice system to investigate and prosecute political opponents is legendary in the current government. Upon assumption of the highest office of the land, the President adopted an aggressive approach toward real or potential political adversaries, which culminated in the rift between him and his predecessor, Ian Khama.
The political rhetoric the President articulated upon ascendance to office soon evaporated.
The promised drastic changes to governance of the country evaporated and Masisi adopted an autocratic style of leadership. He promised a government based on good governance, the rule of law, and inclusivity, among other things. All the lofty promises have not been met and what we witness are a reversal of the gains the country had attained in terms of democratic development and consolidation. Selective justice is meted to the opponents in violation of the Constitution and the laws of the country.
Political persecutions have been a rarity in Botswana’s political history until lately. President Masisi and his regime are geared toward investigating and prosecuting his predecessor and associates. Outrageous charges have been launched with limited legal successes. Remember the P100 Billion allegations and the gun racketing charge preferred against SKI and other people? The rule of law cannot be achieved in a corrupt ridden environment. When the President took oath to abide, defend and protect the Constitution, people were excited. He promised to fight corruption but the reality is that corruption has become institutionalised.
A culture of corruption has taken root. Recall, the ‘Banyanagate’, relating to acquisition of Banyana Farms by the President upon assumption office? Conflict of interests is the primary driver of corruption and maladministration. The fight against COVID-19 pandemic exposed the fallacy on the rule of law in Botswana. The enactment of the State of Emergency (SoE) showed disregard for the rule of law by promoting the rule by law. And subsequent serious misdemeanours including grand corruption under the cover of the SoE legislation.
Equality, fairness, and justice before the law are myths rather than a reality in the current political environment. The rights and freedoms of the marginalised and the poor are undermined with impunity and immunity by the state. Inclusivity has become exclusivity. Currently, the President unilaterally designed a process to review the Constitution, shutting out key stakeholders. The judiciary as the custodian of the Constitution and the rights and freedoms of citizens has been gradually undermined or captured as some commentators would describe. Over the last decades and continued since 2019, an attempt by the Executive to infiltrate the judiciary and undermine its independence has been witnessed. The secretive appointments of certain judiciary officers have raised eyebrows in the country. The handling of the UDC petitions against the most controversial elections has put the judiciary under the spotlight. The appointment of the Chief Justice (CJ) and the President of the Court of Appeal not withstanding other judges have been controversial.
The appointments of seemingly Executive minded judges are worrisome for the rule of law premised partly on the tenets of separation of powers. The judiciary was the last line of defence having had one of the weakest Parliaments in the history of the country after the 2019 general elections. Parliament is a lap dog due to the spineless Botswana Democratic Party (BDP) backbench, which does not demand an ethical and accountable Executive. In the history of the BDP, there is never a time when it had this extremely weak backbench composed of perceived cheerleaders and bootlickers devoid of effective representation of their voters.
Mmegi: In so far as the rule of law is concerned, what are the indicators that as a country we are doing well or badly?
Mfundisi: The indicators are covered above: supremacy of the law, separation of powers, equality before the law, fairness and justice, just laws, independent judiciary, popular participation, and protection of persons and property.
Mmegi: What areas would you classify as of concern and requiring immediate correction?
Mfundisi: I have covered a lot of areas that are anathema to the rule of law. Separation of powers must become the cornerstone of future constitutional architecture. Democracy cannot be realised in the absence of the rule of law. The independence of the judiciary is a vital area for reform. Appointments to the judiciary should be transparent and accountable to ensure professionalism and insulate them from political influence and manipulation. We should as a country learn from Kenya and South Africa where the Judiciary Service Commissions (JSCs) conduct open and transparent interviewing of potential judges. This will ensure confidence and trust in the people on the process and outcome.
The President should not be the sole determiner in the appointment of judicial officers. Ethics and accountability by state institutions and officials must be promoted and enforced in order to realise the rule of law not men or women. The government must promulgate and enforce just laws that advance the interests of the collective rather than the political elite. The rule by law must be a taboo never permitted not promoted in a democracy. Laws must be applied equally irrespective of status. We need robust and accessible law enforcement agencies insulated from political influence. The Botswana Unified Revenue Service (BURS), Police, DCEC, DIS, etc. must be independent and staffed by professionals who owe their allegiance to the Constitution and the people of Botswana.
The cult of leadership must be abhorred and shunned at all costs. Politicians and bureaucrats must be held accountable for their actions or inactions, decisions or indecisions as per the dictates of the law. Popular participation is an important ingredient in the affirmation of the rule of law. Active involvement of the people in legislative process is critical for democratically consolidation and the advancement of the rule of law. The rule of law and democracy are interrelated, interdependent and intertwined.
Mmegi: Why do you think the rule of law is important to us as a nation?
Mfundisi: The question is covered above save to say that democracy and the rule of law are fundamentals for socio-economic and political development. Fundamental rights and freedoms enshrined in the Constitution would be sterile if the rule of law is a nullity. Arbitrary investigations and prosecutions are anathema of the principles of the rule of law.
It prevents arbitrariness and abuse of power by state organs and officials. Laws should be applied uniformly not to benefit or punish certain people. Government should be subjected to the law that applies to everyone else. The rule of law undergirds equality, justice, opportunity, peace, development, accountability of government and respect for freedoms and rights of the people.
Mmegi: Governments need to have good laws, institutions and processes in place to ensure accountability, stability, equality and access to justice for all. In just a few words, how would you describe the situation in our country?
Mfundisi: Botswana, over many decades has been showered with accolades in terms of democracy and the rule of law. Strict scrutiny has unearthed serious pathologies in the system. Contrary to the credentials bestowed on Botswana, there are glaring weaknesses. Some latecomers to the democratic club have surpassed us, for example, Kenya and South Africa. Botswana has stagnated socially, economically, and politically.