Wednesday, December 6, 2023

A code of conduct for the judiciary is long overdue

Just this week, the highest court in the United States of America, the Supreme Court adopted its first ever code of conduct. The code of conduct did not simply come from nowhere. It came after a series of reports that some of the Supreme Court judges were simply not disclosing the relationships they had with some powerful organisations and individuals in that country as required. Those reports triggered what was by any measure heated and pointed debates about the independence of that country’s most powerful court and its judges.

“The absence of a code ….. has led in recent years to the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any other rules, “ the court said when adopting the new code. “To dispel this misunderstanding, we are issuing this code, which largely represents codification of principles that we have long regarded as governing our conduct.”

Adopting this code has by and of itself been a watershed. As it happened in the case of the United States Supreme Court, an absence of a code of conduct inevitably thrown the judiciary into a crisis. That crisis could become irreparable especially in younger democracies such as Botswna’s where oversight institutions are not fully developed, or when the executive branch is overly powerful and does not believe in the independence of the judiciary.

A code of conduct of and by itself is neither enough nor a panacea. It has to be enforceable. And there has to be a way to ensure that such enforcement inspires public trust and confidence. Issues of conflict of interest for people working in different sectors are a daily occurrence. And when they arise they are dealt with in different ways. For some a recusal is required. For others a mere declaration is sufficient. For others a failure to declare could result in a jail term if found out later. For yet more others, it is a non-issue.

For judges concerns of bias are always not too far away, especially when there are suspicions of personal relationship, personal interest or personal finance involved. Subsequent to a court case that has pitted the opposition Umbrella for Democratic Change  against the Independent Electoral Commission, a public debate has arisen on the impartiality of Judge Gaolapelwe Ketlogetswe. There is nothing wrong with that debate. For the record, Ketlogetswe’s admirers have praised him for his steadfast fearlessness and attachment to law, while his detractors have pointed to his history of personal proximity to politics of the left, especially as espoused by the Botswana National Front, a member of the UDC. Back to the code of conduct.

The judiciary in Botswana has been under severe strain for quite a while now. That strain can easily be traced to the deteriorating politics in Botswana, especially the sour relations between president Mokgweetsi Masisi and his predecessor, Ian Khama. As a result of such bad relations, there have been unprecedented courts cases between government and the former president. Judges are expected to rise above partisan politics. That does not seem to be always easy. It certainly is not always obvious to a lay man. In several instances, the security services, DIS has simply refused to uphold judgements found against it or in favour of Ian Khama. There is no question that political-media issues stemming from such cases have over time destroyed the image of the judiciary.

That has not been helped by a related matter in which High Court judges, chiefly Ketlogetswe and Chief Justice Terrence Rannowane literally turned on each other in a dispute that was not only nasty but potentially irreparable. Justice Ketlogetswe had made a damning accusation that the Chief Justice had wanted to interfere in his ruling which would have meant leaving a former Minister, Thapelo Matsheka behind bars for prolonged time. In the end Ketlogetswe ordered the immediate release of Matsheka from prison. The independence of the judiciary has to be defended against all cost.

Admittedly, that independence is a moving target. We must never forget that in a democracy, an independent judiciary is the last line of defence. Even more crucial is the fact that perceptions do matter. The judiciary should not only be independent it must be seen to be so. Judges should always act with optimal reserve. We must never regard judges as sages. They are not. They are just human beings who happen to  be lawyers. And because of that, we must always move towards reforming the judiciary to make not only relevant but also fit for purpose. To protect the judges, the public and even litigants it is important at least for clarity to have a code of conduct for judges. We can no longer rely on the goodwill of judges alone.


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