IEC is very weak: Botswana experiencing governance collapse – US think tank

  • IEC is very weak, MANIPULATED BY BDP
  • IEC policies, outdated, unenforceable
  • State resources abused during campaigns
    IEC, JSC, DISS, Ombudsman badly governed
  • Kgathis’s misguided altruism
  • Botswana still homophobic
  • Democracy index’s decline further

Gazette Reporters

The 2017 Global Integrity Report has joined the chorus of international agencies noting the steady decline in Botswana’s human rights, transparency, rule of law and governance.
Global Integrity, an agency that partners with the Mo Ibrahim Foundation has given Botswana an index rating of 43 in Transparency and Governance. The rating is 2 points above Global Integrity’s rating of “Weak” governance. In comparison to 5 years ago in 2013 when Botswana obtained a score of 57. The report was particularly critical of the Independent Electoral Commission indicating that it is a “very weak” institution due to its lack of enforcement of political finance laws.
The Global Integrity indicator in respect of Money, Politics and Transparency (MPT) -designed to assess the state of political finance transparency and regulation- gave Botswana a score of only 18. The MPT research was undertaken to provide fresh data for understanding relative strengths and weaknesses in global practices around political finance regulation, transparency and enforcement. The score placed Botswana outside the top 20 out of 54 countries.
“In the main, political finance is unregulated in Botswana. No direct or indirect mechanisms of public funding exist, and non-financial state resources are regularly abused during campaigns. Restrictions on contribution and expenditure exist, but are so outdated that the Independent Electoral Commission (IEC) has not enforced them for many years.
“According to the law, candidates are supposed to report their financial information after campaigns, but in practice, no such reporting occurs, as the IEC also declines to enforce these provisions. The political actions of third party actors are not at all regulated. The IEC is weak, and plays little role in the enforcement of political finance laws,” said the report.
The 20-year-old IEC has been criticized by opposition political parties, the media and civic societies who say it lacks independence and is always systematically manipulated by the ruling BDP.
The Global Integrity Report does not give countries comparative international placings but instead provides a score on the perceived strength and weaknesses in open governance, rule of law and other governmental transparency indicators. The ratings are scored on an accumulation of points with the best rating being “Strong” with a score of 81-100; “Moderate” with a score of 61-80; “Semi Weak” with a score of 41-60; “Weak” with a score of 21-40 and “Very Weak” with a score of 0-20.
As with other international agencies that look into governance and democratic indicators, Global Integrity has downgraded Botswana’s governance with particular reference to the lack of autonomy of the IEC and the Judiciary. Executive control over structures like the JSC, IEC, DISS, Ombudsman, Judiciary and legislature have strayed from international best practices and democratic governance, the intrusions into these key structures are seen to undermine the essential independence required by these institutions to protect the constitution and with their erosion comes the current downward trend by the various governance agencies.
The current administration relies heavily on international rating which continues to display Botswana in a positive light when compared to other countries in the region and the continent as a whole. The administration however does not publicly address the downward trend that has become increasingly more pervasive.
A prime example occurred recently when presenting his submissions for expenditure for the financial year 2017/2018 on March 2017 to the Parliamentary Supply Committee, Minister of Defence, Justice and Security Shaw Kgathi glossed over Botswana’s waning international ratings in the rule of law and defence of human rights.
Prefacing his address with the recognition of Botswana’s international ratings Kgathi advised parliament that Botswana persistently ranked well in the Mo Ibrahim index and the World Justice Project when compared to other sub-Saharan countries. There is no doubt that the international ratings from both these organisations rate Botswana well.
In seeking to justify the budget for both the Administration of Justice and the Attorney Generals Chambers, Kgathi relied on three key international ratings for human rights and social development indices; the Mo Ibrahim index, World Justice Project and the “World Peace Project”.
The Mo Ibrahim rating ranks Botswana 2nd in the region after Mauritius.   The World Justice Project ranks Botswana in the category of “Rule of Law” as 3rd in the region after Mauritius and South Africa.
There is no international organisation called the “World Peace Project” as specifically alluded to by Kgathi. There is however an organisation called the Institute for Economics and Peace, working with the Economist Intelligence Unit that does release an annual Global Peace Index (GPI) and Positive Peace Index (PPI) rating. This ranking places Botswana 31st in the world. In spite of the “faux pas” as to the “World Peace Project”, what is absent from Kgathi’s address is his failure to advise parliament that all the rating agencies have noted a considerable decline in Botswana’s index for rule of law and respect for human rights.
The Mo Ibrahim index notes that Botswana is going against the regional trends with its downward trajectory. The index notes that Botswana “…is also one of only four countries in Southern Africa to register a downward trend in Overall Governance in the region”. The pan African rating organisation notes with particular concern the considerable downward trajectory for Judicial Independence giving Botswana a -12.4 (negative 12.4) index rating, the largest most defining downward rating in the region.
The World Justice Project records under the Rule of law index in the category of “Constraints on Government Powers”, that the independence of the judiciary has declined giving a downward trajectory with an index of 0.55.  Botswana’s worst since the rating began.
In justifying the budget requests Kgathi noted that Botswana prides itself on what is known internationally stating that “Against this background, the Administration of Justice will continue to initiate a number of strategies aimed at educating and sustaining the existing local and international confidence in the Botswana Judiciary”. Critical considerations such as a constitutional amendment to ensure the independence of the judiciary went were not addressed by Kgathi in his address to parliament.
In 2015, the Administration of Justice, promoted a study headed by Justice Key Dingake to assess developments in Namibia and South Africa that allow the judiciary to be separated entirely from the other arms of government and manage its own funding with direct access to the consolidated fund. The Administration of Justice has repeatedly noted the lack of funding though more importantly direct access to the consolidated fund would ensure greater judicial independence. Kgathi’s submission was silent in this respect- an aspect that would have positively influenced Botswana’s ratings going forward.
Ironically of the downward trend in the Botswana’s international ratings is lost on Kgathi when, in referring to only Botswana’s rank and not the downward trends he emphasises that “This case is yet another example that demonstrates existence of judicial independence in Botswana and further, the extent to which the courts in Botswana can interpret and review norms and pursue their own reasoning, free from the influence of rulers or powerful groups and individuals”. Kgathi’s submission overlooked the pending litigations in respect of the appointment of judges in the Motumise case and the recently settled case pertaining to the suspension of judges in the Dingake and others and the current impasse in respect of the Court of Appeal, all matters in which the executive is asserting its authority over the judiciary by interpreting the constitution in a manner that promotes executive inroads into the judiciary as opposed to limiting its power in a manner that would promote the courts being “free from the influence of rulers”.
Kgathi and the executive continue to ignore the downward trends in Botswana’s international ratings, instead applaud the overall rank against other countries. “We believe as government that these good ratings are earned largely from our respect of the rule of law and general implementation of the Court Orders”. International ratings are based on much broader concepts than the fulfilment of court orders. Kgathi neither seeks to explain the values of the rule of law, the restriction to the arbitrary exercise of power nor does he acknowledge that Botswana’s downward trends in international ratings.
Kgathi’s submission for a budget for the Attorney General was no less self-serving of government than his request in respect of the Administration of Justice. Kgathi praised the Attorney General’s defence of government in various key litigations by noting that such litigation “define and strengthen our public institutions inter-relationship as well as the separation of powers”. Again, Kgathi omitted to note that such litigation would be entirely unnecessary had the Attorney General advised the executive to promote as opposed to restrict an interpretation of the Constitution that adhered to internationally recognised norms on the separation of power.
The international perception of Botswana has been done considerable harm over the years by the Attorney General advancing, on government’s behalf that the LGBT community are not “people” as defined by the constitution; that death row inmates do not enjoy constitutional rights; that the appointment of judges is the sole responsibility of the executive; that Unions must have limited powers of collective bargaining and strike action.
The Global Integrity report further finds that Botswana continues to score weak marks in Transparency and Accountability category under the Global Integrity Index with a loss of 3 index points from 2016 placing it in the “somewhat weak” category and a mere 2 points above the second lowest bracket on the Global Integrity scale.
Global Integrity has in the past found that laws are silent on the accountability of public servants with regards to abuse of power. It also states that pending the establishment of the Human Rights Commission, abuse and human rights violations by the police are only investigated internally.
In the Social Development Indicator, the report finds that Botswana remains a homophobic country with no specific legal frameworks or mechanisms for the protection of ethnic and sexual minorities. It also concluded that customary laws continue to exclude women’s rights to access land and non-land property, inheritance, divorce and travel.