Citing legal scholarship to back up its case, the Botswana Federation of Public Sector Unions (BOFEPUSU) has expressed grave concern about President Ian Khama honouring Court of Appeal judges, Ian Kirby and Isaac Lesetedi.
“BOFEPUSU and its constituent unions are no doubt regular litigants before these courts, and, thus, have every right to be worried when the President, who is the head of the executive arm of government, rewards judges. The President and his executive arm of government are regular litigants before the Court of Appeal and the High Court. It is unethical conduct for any judge to accept awards or gifts from the President or any other government functionary in respect of their judicial functions,” reads an open letter penned by Ketlhalefile Motshegwa.
In buttressing the latter point, Motshegwa, who is the Federation’s Deputy Secretary General, quotes an assertion made by Rebecca Annan-Welsh and George Williams in the Monash Law Review in an article titled “Judicial Independence from the Executive: A First Principle Review of Australian Cases.” The relevant quote reads: “Personal independence further requires that judges are not rewarded or punished for the conduct of their judicial functions. Hence, any practice of the executive awarding, or recommending the award, or an honour of a judge for his or her judicial activity should be avoided. This kind of improper reward is contrasted with civil honour awarded by an independent body, and with awards given after the judge’s retirement.”
Khama awarded Justice Lesetedi the Presidential Order of Honour on Independence Day last Wednesday for “notable judgments in a number of legal areas ranging from commercial law, land law, procedural, family, administrative, customary and constitutional and customary law.” The argument that Motshegwa makes in his letter is that the doctrine of judicial independence requires that Lesetedi, an associate judge of the appellate court, should have refused this award and that the judgements for which he was honoured should have been stated. The suggestion with the latter seems to be that those qualified would have been enabled to make an independent assessment of whether such judgements merited Khama’s award.
“Was he being thanked for favourable judgments? What criteria was used to determine that his judgments are better than those of his peers on the bench? These are vexing questions which could have been avoided if Justice Lesetedi had refused to accept the award,” Motshegwa asserts.
Kirby, who is president of the Court of Appeal and owner of Mokolodi Game Reserve, was similarly honoured for his achievements as a private lawyer and wildlife conservationist. Motshegwa contends that Kirby last practiced as a private lawyer about 30 years ago: “It beats logic that one can be awarded a presidential award for having practised law some 30 years ago. Why wait for him to be a judge of the Court of Appeal before awarding him? Why not wait for his retirement?”
Warning that this development can undermine judicial independence, BOFEPUSU proposes that the situation should be righted in two very dramatic ways. The first is for the two judges to “publicly” return the awards to Khama and the second for the latter to publicly announce that he shall never bestow awards on any judicial officer.
“It is very clear that this new practice does not augur well for the independence and impartiality of the judiciary as entrenched in Section 10 (9) of the Constitution of Botswana and international conventions and consensus. As regular litigants before these courts against the executive arm of government, we are worried that these awards may cause Their Lordships to develop a liking for the executive arm of government to our prejudice. We are also worried that these awards could influence other judges to render favourable judgments to the executive with the hope that they, too, will be honoured by His Excellency the President,” Motshegwa says.