22 August 2008
opinion
Gaborone — Yesterday afternoon I tried to coax a reaction to the Nkate-NIIT saga from the Office of the President, or to be more specific, from the President Ian Khama. Futile attempt. But as every journalist may know, the best way a presidential hunt could end is with Colonel Duke Masilo, Khama's private secretary.
He is on the line right now.
"We are driving right now and... unless you won't be long I can't..." starts Masilo, hesitant.
"I will be brief though," I quip, adding quickly that: "I wanted to know if the president could react to the Nkate-NIIT issue, I mean where he is alleged to have received contributions from the tertiary institution."
"And what about it?" Masilo asks.
"What is the President's opinion on this?" I ask.
"He has not declared his opinion on it," answers Masilo.
After attempting to get a reaction from the Minister of Education, Jacob Nkate (he said he would not want to comment, but rather: "You could get all information from Gazette, I answered every question about that issue") the President, as the minister's boss, would have made for a better option.
Just a month ago, this newspaper broke the story of the Chief Justice Julian Nganunu who sought to have a judgment against his relative altered. The controversy, which casts a dim shadow on the ability of the judiciary to act without fear or favour, drew muted reaction from the justice system and uproar from the public amid calls for action to be taken against Nganunu. At the time, the reaction of the government spokesman, Jeff Ramsay, was that the president was not in the habit of commenting on allegations about the Chief Justice made by the media. That was that.
What these stories may reflect is the ineffectiveness of the legislative environment in its current presidential state, to really ensure accountability from some of the most senior of public figures. It reflects a constitution thin on oversight provisions, an executive impotent and centralised around the president and a legislative process devoid of the dynamism to bridge these gaps.
According to the Constitution of Botswana, both Nganunu and Nkate are appointed by the state president. In Botswana there is neither the legislation to ensure some sort of ethical propriety from public officers, nor is there a code of ethics. There is neither provision for oversight from, say... Parliament over a member of the executive such as a minister. But ultimately, the whole system is predicated on the assumption that the president, personally for that matter, would have teeth.
According to legal opinion, if allegations against Nkate are true - he has not denied them so far - a few things would need to happen for him to be brought to book. If it were recognised that the matter has serious implications for his position as a minister, he would be removed from office. That is if a consideration has been made, and this should done by, well, the president. Provided the president, personally, adjudges a minister to have compromised his ability to deliver, he can dismiss him or her. Or the minister could be pressured to resign, by the president. Section 43 of the Constitution states that: "The office of any Minister or Assistant Minister shall become vacant- ... if the holder of the office is removed from office by the President."
Of course compared with any other system, one may argue that this is normal practice, the president appoints and hires ministers and other public officials without security of tenure. In South Africa, the constitution provides that the minister is accountable not just to the president but Parliament. There is provision governing the conduct of cabinet members and deputy ministers. It guides the general ethical standards of a minister, and provides for a Code of Ethics. Section 96 of the South African Constitution states that "Members of the Cabinet and Deputy Ministers may not - (a) undertake any other paid work; (b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or (c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person". This aspect is strengthened by a piece of legislation called the Members Ethics Act, which among others provides for disclosure of the private interests of ministers, assistant ministers and other senior public figures.
There is no such a thing in Botswana. So the environment is radically different. So what are we saying? The fact is that, it is all up to the president to act on any situation threatening proper and ethical delivery from ministers. It is a presidential prerogative at its extreme.
In the case of a judge, the constitution is equally clear. "An investigation into the conduct of a judge can only be called by the president". However, the constitution provides for a tribunal to investigate a judge. If he does consider the case to be worthy of investigation, the president may convene a commission to look into the issue.
"The tribunal shall enquire into the matter and report on the facts thereof to the President and advise the President whether the judge ought to be removed from office under this section for inability as aforesaid or for misbehaviour". If the commission reports that the judge is, say... guilty, then: "the President may suspend the judge from performing the functions of his office, and any such suspension may at any time be revoked by the President and shall in any case cease to have effect if the tribunal advises the President that the judge ought not to be removed from office". The president is not required to report to any other body, nor consult any other body. In the South African context, a judge can be removed from by a majority vote in parliament and or "the President must remove a judge from office upon adoption of a resolution calling for that judge to be removed". Ultimately the decision rests with the president. However, the dearth of constitutional width on these matters ensures that any other mechanism remains inert and helpless.
The president, personally, has to be very responsive to public concerns if he is to protect the sanctity of public service under such a limited legislative environment. The current environment calls for a president loaded with individual goodwill.
After Masilo indicates that he cannot disclose the president's position I attempted another manoeuvre. "Well, can you ask him for me then?" I asked Masilo. He paused. "Can you ask him what he thinks of it all?" After a long silence Masilo said with finality: "I cannot even get that information for you."
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