Democracy - A way of life

JOY PHUMAPHI | Friday March 19, 2010 00:00

 

For it to work effectively, it requires institutions that nurture the culture of openness, transparency and accountability so essential for its survival. I have the happy birthright as most of you, of being part of this beautiful  country, Botswana, which prides itself in its ability to embrace this system of governance, for the benefit of every citizen; thus shouldering the heavy responsibility of putting the people first.  It is this responsibility, which demands respect for the basic tenets of democracy. In no particular order, I believe that our history and achievements call for the comprehensive embracing of:

*Majority rule*No tyranny by the majority*Freedom of expression, speech and the press*Freedom of religion and belief*The right to be treated equally under the law*Rights of minority and disadvantaged groups*A constitution which is respected and upheld*Separation of powers, *An independent judiciary, and*An institutional system of checks and balances

For purposes of this open discussion with fellow citizens, I shall focus on a specific instrument that has proven to be essential in directly preserving tenets numbers 5 and 10, as well as several others, such as 2, 3, 6, 7, indirectly; The declaration of Assets and Liabilities by office bearers. Given the level of debate on 'Declaration of interests'; I feel it useful to open a public dialogue on what this innovation (for us at any rate!) would look like. We are part of a Global community that has over time honed its democratic values, and the institutions required to protect them.

Why do we need the declaration of interests?When I served you as a Member of  Parliament, I was inspired by our noble goals, and the leadership Botswana demonstrated in the sub-region as an island of peace, stability, democracy and good governance. 

Mature democracies globally have introduced institutions, or mechanisms, to ensure that the majority of citizens, who are not in positions of influence, have an equal opportunity to participate in development.  Botswana embraced many of these innovations and realised the benefits for Batswana. In addition to the Independent Electoral Commission (IEC), a Directorate on Corruption and Economic Crime (DCEC) was established, as was the Ombudsman's office.

In seeking to further protect and entrench the rights of Batswana, it was time that Botswana took another bold step to strengthen our institutional checks and balances. The enactment of a law to protect the integrity of both elected and appointed office bearers was long overdue.

I believe that there is a potentially destructive gap in Botswana's democratic structures, since there is no mechanism to ensure public confidence in the integrity of elected (councillors, Members of Parliament, political office bearers) and appointed public officials (government and private sector).

The integrity of these office bearers is vital to both the operation of our system of governance, and to the survival of our democratic culture as a way of life. Confidence is jeopardised when financial and personal interests of these office bearers' conflict, or are perceived to be in conflict, with their official duties.

It is clear that having been elected or appointed to high political or administrative office, these people often inadvertently find themselves in positions where it would be easy to exploit their professional or official position for their personal benefit or that of close relatives.

Having worked for many years as an auditor, I understand that preventing errors is more prudent than trying to shut the gate after the horses have bolted. At the same time for the benefit of both the office bearers and fellow Batswana, a relationship of trust has to exist, based on confidence in the integrity of the office bearers.

I believed in the past, as I still do today, that the introduction of a law by Parliament on 'Declaration of Assets, Liabilities and other interests' by all office bearers, is central to our values and the cherished democracy that we have worked so hard to build.

The implementation of the law would have a preventive function, as it would help people anticipate potential conflicts-of-interest before misconduct occurs.

It would also have an investigative function as its declaration would provide valuable information that may help uncover misconduct, and any illicit enrichment after it takes place.Introducing my motion to parliament at the time, I sought to allay unfounded fears by explaining that there is often confusion between the existence of a conflict-of-interest and the commission of improper acts as a result of that conflict.

The conflict exists when personal and/or financial interests are competing with, or overlap with official duties. The wrongful act occurs when you benefit, or attempt to benefit as a result of your position.  Therefore the presence of a conflict of interest does not in itself mean that you have benefited unfairly. The beauty of declaration of assets and liabilities is that  conflict-of -interest will be identified early and voluntarily defused so to speak before any impropriety, or corruption occurs. It is clear therefore that one primary purpose of the law is to direct the diffusing process. It is not enough just to declare the assets and liabilities and other interests.  Once an office bearer has declared their interests, areas of conflict are identified.

Mitigating conflicts of interestBecause every interest must be declared, and the identification of areas of conflict has to be impartial; many democracies have set up an independent body or institution to manage the implementation of the law. This entity works with the office bearer to mitigate (minimise or eliminate), the conflicts of interest. This entails one or more of the following actions, depending on the nature of the conflict.*Management of and ensuring compliance with a code of ethics or conduct. I will discuss this in a little more detail later.*Removal of the conflict. This will sometimes mean that the office bearer has to decide whether to continue in office, sell the investment, or repay the liability immediately. Having just come from the World Bank the requirements were clear. Any senior bank official who had an investment in an industry in a country where the industry was financed by the bank, had two choices, sell the investment or vacate the bank position. 

*Disclosure. This alone, of course only works where the likelihood of impropriety is remote. Nevertheless in such instances, the failure to disclose is a crime in itself. *Recusal. This approach works with board members on many Boards, as well as with magistrates and judges. However, it will not mitigate conflict when the act occurs in the day to day activities of an office, where the office bearer holds a position of supreme authority such as CEO or Minister.*Third-party evaluations. This approach is employed where the position held by the office bearer makes it difficult to be impartial in carrying out a transaction, where the option of removal of conflict does not exist. A common example is where a CEO or owner of a publicly held corporation decides to buy out minority shareholders. (Maybe taking the corporation private). In order to establish a fair price, an independent third party would normally be brought in.

Given the real life stress (for all concerned, most particularly the public who may feel cheated!) that occasions perceived lack of integrity, and therefore accountability; the development of a code of ethics or conduct that all potential office bearers can familiarise themselves with before assuming office is a must.

Code of ConductMost codes of conduct forbid conflicts of interest, or at the very least, spell out clearly, the extent to which conflicts of interest should be avoided. Where certain conflicts are permitted by a code of ethics, then clear instructions are included in the code on mitigation of the conflict.  There are many versions of codes of conduct, some bolder than others. Given Botswana's persistent focus on accountability, responsibility, and values; I find the 1979 Bowen report principles on a code of conduct, most instructional! Though designed for Australia, they have been endorsed in corporate and political arena again and again by progressive democracies, and public corporations, globally.

Bowen's Principles*An office bearer should perform the duties of their office impartially, uninfluenced by fear or favour. *An office bearer should be frank and honest in official dealings with colleagues. *An office bearer should avoid situations in which their private interests, whether pecuniary (monetary) or otherwise, conflict or might reasonably be thought to conflict with their public duty.*When an office bearer possesses, directly or indirectly, an interest which conflicts or might reasonably be thought to conflict with their public duty, or improperly influence their conduct in the discharge of their responsibilities in respect of some matter with which they are concerned, they should disclose that interest according to the prescribed procedures. Should circumstances change after an initial disclosure has been made, so that new additional facts become material, the office bearer should disclose the further information.

*When the interests of members of their immediate family are involved, the office bearer should disclose those interests, to the extent that they are known to them.*When an office bearer posses an interest which conflicts or might reasonably be thought to conflict with the duties of their office and such interest is not prescribed as a qualification for that office, they should forthwith divest themselves of that interest, secure their removal from the duties in question, or obtain the authorisation to continue to discharge the duties. (this does not apply to office bearers who have the broad position of MP only, but would apply to a minister with a sector  responsibility, senior government official, or a CEO)*An office bearer should not use information obtained in the course of official duties to gain directly, or indirectly a pecuniary (financial) advantage for themselves or for any other person.

An office bearer should not:*Solicit or accept from any person any remuneration or benefit  for the  discharge of the duties of their office*Solicit or accept any benefit,, advantage or promise of future advantage , whether for themselves, their immediate family, or any business concern or trust with which they are associated from persons who are in, or seek to be in, any contractual relationship with the government (or company if position is in a public company).*Except as may be permitted under the rules applicable to their office, accept any gift, hospitality or concessional travel offered in connection with the discharge of the duties of their office.*An office bearer should be scrupulous in their use of public property and services and should not permit their misuse by other persons.

*An office bearer should not allow the pursuit of their private interest to interfere with the proper discharge of their public duties.The above establishes a common platform for discussion. It broadly lays out the general expectations of other progressive democracies that our own would want to be associated with. Examples of good governance, where there is both a Code of Conduct, and declaration of interests, to lock in integrity and hold office bearers accountable to the people they serve. Leading the Africa Group is South Africa, a relatively new democracy.

One critical control mechanism once the declaration mechanism is in place is fair and transparent enforcement, as well as public access and oversight. Countries implement this in different ways. Some will publish the information in the management entity's annual report, some use government notice boards, some registers of interests open to the public, others personal financial disclosure databases.

Introduction of Legislation on Declaration of Assets and LiabilitiesAs I said at the beginning, introduction is never easy. Some Heads of State and Government have set an example by being the first to make a declaration (e.g. President Ellen Johnson Sirleaf of Liberia, or most recently Prime-Minister Sibuso Barnabas Dlamini of Swaziland's, declaration to their commission) In both cases, this leadership has been critical in enlisting buy-in and facilitating institutionalization.Other lessons from the more progressive democracies are that:*The regulations should spell out very clearly what assets, liabilities and interests must be declared.*The reporting process  must be as simple as possible.*There is clarity as to nature and degree of declaration for close relatives, and personal relationships. Some countries for example include co-habiting partners' assets and liabilities.*There is clarity as to outside employment and remunerations. Experience has found that some remuneration is in kind and never declared, unless if it is specifically asked for.*There is clarity on how often the declaration should be made

*There is engagement and building of capacity of civil society groups, media, journalist, and local communities, to promote effective monitoring and oversight of the implementation.Even where the above lessons can be learnt, the bigger stumbling blocks in those countries that have either not been able to enact a law, or are failing to implement an existing law, have been:*Office bearers' fear that this is an invasion of privacy.*Lack of political will. It must be understood that the path that we have chosen as a democracy is not easy, but it is worthwhile. The self-actualisation of every citizen can only be assured when our values and ethics guide governance in both the public and private sectors. In 1993, President Kim Young Sam of South Korea publicly disclosed his wealth, calling upon ministers and senior officials to do so. He had successfully set the stage for a mandatory disclosure requirement later in the year!  His action inspired me at the time.

Our turnIt is time we passed this milestone. The Challenge currently facing Botswana is critical for our continued survival as a credible democracy. By allowing this matter to fester without resolution over the years, we have lost valuable time in shaping a better governance system for Botswana. Many democratic constitutions require a declaration of interests by elected and appointed office bearers, directly or indirectly. The global winds of inclusiveness, transparency, accountability and results that are blowing through today's democratic societies brook no denial.

On March 15 this year, the World Bank's, Africa Development Indicators 2010 report, sent all of Africa a very important message. 'Quiet Corruption' is leading to an increasingly negative expectation of service delivery systems. This is leaving the poor and more vulnerable who are reliant on public sector systems, out in the cold. What this speaks to more than anything else is a lack of integrity, a corrosive culture born of a lack of accountability and a lack of focus on results. I believe that Elected and appointed office bearers must carry the torch first! Lighting the way for the rest of society. 

As a leader you can only ask for the same values and ethics that you are demonstrating yourself. The declaration of interests enables our leaders to show us the right path for our democracy.

Without asking for angels, Botswana can do this, and do it well! We can live up to the expectations of coming generations.