Friday, September 25, 2020

A fully independent judiciary remains our last hope!

For many years now as a country we have basked in the glory of a democracy that ensured a strict separation of powers, with the executive, the legislature and the judiciary working in harmony but independent of one another.

At least in theory such an arrangement has guaranteed the checks and balances that are necessary for our survival premised on the rule of law.

While the judiciary, headed by a Chief Justice, has always provided a legally guaranteed bulwark against abuses from a powerful, excessively influential and filthily wealthy executive, in the past we also counted on the liberal instinct of the people who manned the executive to guarantee our basic freedoms.
That is no longer the case.

Events of the last five months indicate that more than ever before politicians are a real threat to our democracy.
Events of the last five months have proved right what we have always suspected; that politicians will invariably abuse whatever power is given them.
For the last five months, the alcohol industry in Botswana has been engaged in the battle of its life.

It is a battle that has all the hallmarks of fighting for freedom.
While I can think of nothing more depressing than the attitude of this government towards the alcohol industry, what has been more horrifying and decidedly shocking is a discovery that the current government, led by President Ian Khama, has not the slightest drop of a liberal instinct in their bloodstream makeup.

In fact, they scorn and look down upon anything they perceive liberal.

Government’s attitude towards the alcohol industry, which is based entirely on prejudice, vengeance and ignorance, is a constant reminder that we are living in an era where we can no longer take our freedoms for granted.
Any instinct there might once have been inside the government that our systems should be based not on emotional whims but rather a dispassionate application of policy seems to have whittled away.
Since Khama ascended the presidency the alcohol industry has literally been forced to take residence at the courts of law in order to stay afloat.

Just this past Friday Kgalagadi Breweries had to run to Lobatse, essentially complaining that Khama and his lieutenants had taken an illegal decision to close them down. A few months earlier the entertainment industry was at the same place, complaining that Khama and his police officers were illegally harassing them.

As a country we should be ashamed.
While for now the courts have guaranteed the industry’s continued abode by way of consistently ruling against the arbitrary conduct of government, we cannot say with any element of certainty how long that existence will continue.

You know there is trouble coming when a government finds it perfectly acceptable that a legally registered industry like the alcohol industry in Botswana is from time to time forced to seek refuge from the courts for it to be allowed space to operate.

With this situation in hand and given this government’s near demonic determination to limit our liberties (starting with alcohol and God knows what next) a possible onslaught on the independence of the judiciary should become an issue on which we should start registering our anxious and apprehensive displeasure.

With the judiciary now having been rendered the last guarantor of our freedoms, there is an urgent and absolute need for a public discussion on how best to come up with portent guarantees to protect the judiciary from itself becoming a victim.

While the alcohol industry may be the target of the day, the executive looks set to expand their anti-liberalism onslaught further afield.
Already the media has a date with the hangman.

My instincts tell me the judiciary is the next natural target.

The absence of any strain of liberalism, coupled with prejudice and tolerance have combined to portray President Ian Khama as a power man who invariably falls on the wrong side whenever populism fights for space with our liberal culture.

Given that, so far, the judiciary has proved a formidable hurdle to government’s relentless encroachment into people’s freedom space, we can comfortably predict that open attacks on judges who are perceived to be against this illiberal crusade are not far behind.

Given that under the current system the judiciary is our last hope, it is high time a public debate is kick-started on how to further fine-tune the judges’ appointments.

The judges appointments system has to be taken further and further away from anywhere near the Office of the President.

Unless the judges’ appointments system is totally detached from the Office of the President and allocated to an authority that is clearly biased against political correctness, we can rest assured of judicial deterioration that will leave the judges under more and more threat of political interference.

It has happened in Zimbabwe.
Faced with an independent judiciary that resisted his arbitrary crusade in favour of the law, Robert Mugabe promptly populated the judiciary with cronies many of whom were beneficiary of his crazy land reform largesse.
The tragedy of it all is that not only do Khama’s little scuffles – which he loses at the courts demean his office, he also is badly distracted from engaging the big issues of the day.
Which is why save for his off-the-cuff, half-baked decrees, since taking office our supposedly action man has done little to confront the underlying problems of poverty, unemployment creation and a collapsing public health system.

But in all this an independent judiciary is our last hope.


Read this week's paper

Masisi creates his own “deep state”?

The government enclave is discussing a new law that will expand the president’s overreach and make it easier for the Directorate of...