Before I dwell on the subject matter for this instalment, I found it irresistible to ignore the issue which has recently come to dominate locally in both print and electronic media. For instance, this morning on Gabzfm The Point show, the controversial issues on Reggie’s table centred on a recent circular penned by the Chief Justice, Maruping Dibotelo, and addressed to the Attorney General together with other legal practitioners across the breath and width of this nation. In the same circular, the Chief Justice expresses concern about a potentially disastrous practise by legal practitioners. To cut the long story short, the contents of the circular warned legal practitioners and judges to refrain from engaging in Forum shopping. In an article Sakarea Makgapha writes, “Forum shopping is a process by which a plaintiff chooses among two or more courts that have the power — technically, the correct jurisdiction and venue — to consider the plaintiff’s case. This decision is based on which court is likely to consider the case most favourably.
In some instances, a case can properly be filed in two or more courts. It often involves weighing a number of factors, including the reputation of the judge in the particular court.” (Sunday Standard, 13 October, 2013).
This is a very dangerous development. I should indicate from the onset that this practise is also a source of concern even in much more affluent Western democracies. And to show the potential negative impact of this development, the Chief Justice has found it fit for him to raise the alarm. This is what we call leadership. Rather than wait until the situation gets out of control and start running like headless chicken, in here we see a principal who doesn’t shy from calling a spade a spade.
Don’t forget, the reputation of the judiciary was on the line if such behaviour was to institutionalise. But He seems to be a man in a mission: ready to fix a glass before it breaks. In that respect, I think as a nation we should commend Justice Maruping for taking action before it’s too late. A corrupt judiciary is the last thing we want for our republic.
I should point out here that the judiciary’s role in a democracy is crucial. Without a proper functioning judiciary, we are likely to have anarchy. And that is not what we want. We need a judiciary that, as a nation, we have confidence in; one that can discharge its functions without fear or favour. I don’t think I will be wrong to suggest that unlike in many other African countries, we have been an exception in that ours has long been regarded as a professional judiciary that facilitate justice in our republic. It has been an exemplary case for others elsewhere in the continent to follow, as far as upholding the rule of law is concerned.
In this instalment, I consider the recent stance by African Union (AU) regarding International Criminal Court (ICC) and the issue of rule of law. For those who have been out in the bundus, in your absence African leaders met in Addis Ababa to review AU’s ties with the Hague-based war crimes tribunal. Obviously, our president did not attend. After all the meeting appeared to be amongst the guilty ones!
On a more serious note though, ICC is a permanent tribunal that was created by the Rome Statute which came into force on 1st July 2002 to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although jurisdiction for the crime of aggression will not be awakened until 2017 at the earliest). Chiefly, ICC is intended to complement existing national judicial systems, and may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes. I guess, those establishing ICC fell short of pronouncing in uncertain terms that they will intervene where judicial system is broken. That alone, then, should not come as a surprise to African leaders when ICC goes after them. They are the very ones who relish when presiding over broken systems.
The ICC, however, has not avoided controversy. In particular, AU has accused it for targeting Africans. To date, all the ICC’s cases have been from African countries. And to be honest, we still have a handful of leaders in office who are under the radar of ICC. In that sense, it would appear the African leadership is justified when it sought review of its position as far as ICC is concerned. The Ethiopian foreign minister’s assertion that ICC has become a political instrument used to target people from Africa did not come as a surprise to many in attendance, save for our own Skelemani.
As is a norm lately, Botswana has decided to be the lone wolf on this issue. We have opted to stand on a principle. Yes, I mean principle. If you are going to mess around and think Botswana will stand by you, sorry. Indeed, a commendable stance taken by Gaborone. But that alone is not enough. If you look at the list of those charged, suddenly a pattern emerges that suggest ICC is only after Africans, be they political or rebel leaders. This is a matter of concern with a likely potential to enhance negative public confidence on this institution by many in the continent. This is not what the ICC wants. What is needed is for it is to take stock of itself and ensure that it goes after all suspects irrespective of colour, place or station in life. At the moment it does not appear this is its priority. Instead, ICC is busy hunting Africans at the expense of other nationalities. Perhaps, Africa at the moment offers a conducive ground for blood thirsty trophy hunters.
What is important though is to remind Africans that they themselves are partly responsible for creating this favourable environment that gives ICC a chance to go after them. African leaders in particular destroyed their institutions and, in turn, succeeded in crafting corrupt and hopeless one, including judiciaries. They have a choice, hard as it may be. They either have to invest in building strong and functional institutions or continue with an ICC that has unfettered access into their own backyards. This is why I found it fitting to applaud our Chief Justice for timely and accurate words warning against the dangers of allowing corruption to institutionalise in our judicial system. This will help go a long way in securing rule of law and democracy.
