Some Challenges in the Reintegration of Ex-offenders for Appointment as Directors in Botswana

Abstract

The aim of this paper is to interrogate key legal perspectives of reintegration of ex-offenders into society with specific reference to their appointment as directors of private enterprises in Botswana. The paper contends that re-integration of ex-offenders is a continuation of their rehabilitation that should start during their incarceration. The paper argues that the Companies Act Chapter 42:01, the principal statutory law governing private enterprises in Botswana, generally fetters the rehabilitation and reintegration of offenders by placing unlimited discretion on the courts in the determination of whether ex-offenders should become directors of companies. Such wide and unrestrained powers of the courts may violate the right of ex-offenders to employment and managing their businesses. The paper adopts a qualitative research design with interpretivist paradigm because of the critical and hermeneutical approach when one is interpreting and analyzing diverse legal instruments. The International Covenant on Civil and Political Rights is considered so as appropriately locate the current discourse. With a view to assessing the magnitude of the treatment of ex-offenders in the private sector for director positions, the paper examines the law on the qualifications for appointment as a director in selected public sector boards. The finding is that whereas the Companies Act Chapter 42:01 leaves the fate of an ex-offender in the hands of the judiciary, that is not the case in the appointment of directors in State-Owned Enterprises (SOEs) that are established by legislation. The paper therefore recommends legal reform for the Companies Act Chapter 42:01 to adopt an approach that clearly re-integrates ex-offenders without any court process. For a proper appreciation of the approach found in the Companies Act Chapter 42:01, the paper examines South Africa’s Companies Act 71 of 2008. The paper finds that there is need for legal reform in Botswana so that the fate of ex-offenders regarding managing their own companies and serving in other companies is not left to the courts without any statutory safeguards.