Wednesday, October 28, 2020

BCP questions the impartiality of the Industrial Court

The opposition Botswana Congress Party has once again decried the politicization of Botswana’s judiciary, saying it makes the independence and impartiality of Botswana’s judges’ suspect.

They particularly expressed disappointment at the conduct of some Industrial Court judges when handling cases that were related to the recent public sector strike.

In the third installment of their Democracy Alert publication, titled “A chronicle of the Intransigence of BDP Government as led by President Khama against Public Servants” the BCP said the cases that were brought by public sector unions against government brought into sharp scrutiny the credibility of Botswana’s judicial system.

“The Trade Unions went on record saying they were uncomfortable with some judicial appointments at the Industrial Court. They were so aggrieved by the appointment that they vowed never to take their disputes to the Industrial Court but to the High Court,” said BCP president, Dumelang Saleshando.
In the past, opposition politicians have also expressed reservations about the independence of the judiciary, after it emerged that President Khama has overturned the recommendations of the Judicial Services Commission. They complained that the appointment of judges is shrouded in secrecy.

“The JSC is dominated by presidential appointees and thus exposed to political manipulation by the executive,” said the BCP.

Khama has in the past declined the JSC’s recommendations to appoint Lizo Ngcongco and Gabriel Komboni to the High Court bench, sparking a furor amongst political commentators. He did not give any reasons for refusing to accept the recommendations of the JSC.

Accusations flew thick and fast that Khama refused to endorse Komboni’s appointment because he was a known member of the BCP.

Ngcongco is also said to have angered Khama because he differed with the executive while he was Parliamentary Counsel. At the time, Ngcongco rendered a legal opinion on the legality of the privatization of Air Botswana that was contrary to the position taken by the Attorney General.

In fact, Ngcongco concurred with the opposition’s stance that the way government sought to privatize Air Botswana was wrongful and unlawful.

“We are of the reasonable view that, President Khama declined to appoint Ngcongco on account of his independence and principled stance. Komboni was refused because he is a member of the BCP and served the party as its Legal Secretary,” said BCP President Dumelang Saleshando.
He insists that the Ngcongco and Komboni saga are proof of the Khama administration’s politicization and executive interference with the judiciary.

Industrial Court judge Tebogo Maruping does not see eye to eye with trade unions, who have questioned his conduct during the public sector strike. In fact, the unions recently applied for Justice Maruping to recuse himself from their cases, saying he has never afforded them an opportunity to present their cases to the best of their ability.

It was clear during the proceedings of the Public Service Unions cases at the Industrial Court that the court itself was on trial. One of the lead Attorneys representing government in one of the cases had in fact just been appointed a Judge of the Industrial Court.

Saleshando said Justice Maruping’s “midnight justice” should be viewed against the backdrop of the fundamental flaws inherent in the appointment of judges.

“This is particularly so because Judges of the Industrial Court are appointed by the President without the involvement of the JSC,” he said.

While BCP does not question the competency and credibility of Court of Appeal President Ian Kirby, they say such impeccability is stained by the fact that he is President Khama’s uncle, and that his appointment is the sole prerogative of the President. The BCP also accused Court of Appeal judges of not being prudent in their job as they fail to write quality judgments, rather opting to state that they concur with the decision of the judge whose judgment is being appealed.

“This might explain why the judgments of the Court of Appeal hardly find their way into the Commonwealth Law reports. We suspect it has to do with their poor quality and reactionary decisions,” said Saleshando.

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