The Gomolemo Motswaledi case at the High Court this weekend raised unprecedented interest in the legal interpretation of ‘official’ immunity of the presidency from legal suit as enshrined in the constitution of Botswana. Below, Dan Legala, makes the case of a liberal interpretation of the law in the highest courts of the land that interpret the fundamental law of the land.
Justice is not a cloistered virtue. Judges are human beings and in adjudicating upon disputes, their judgments are influenced by their upbringing, ideology and values. The law is what judges say it is. It is no more than that. Judges are therefore able to shape the law and able to influence its development. It is therefore important in a democratic society that the values of judges reflect those of the people. For at least the last 10 years the judiciary has been packed with conservative judges as opposed to liberal judges, commonly known as judicial activists. The last decade has therefore seen very little by way of an advancement of our human rights law.
The over-bearing dominance of the conservative taste in both superior courts ÔÇô the High Court and the Appeals Courts – is illustrated by the fact that, in the few High Court cases in which a panel of three judges has been appointed to listen to cases, and in the Court of Appeal cases where all cases must be heard by at least three judges, almost all judgments, without exception, have been unanimous and no separate reasons for concurring have been given by the judges who concur.
The few judicial activists who were appointed to the High Court, Moatlhodi Marumo for example, left out of frustration. Marumo was denied the opportunity to develop Botswana’s human rights law in the Good case when it was taken away from him and given to Judge Sappire, and then to a panel of judges which did not include Marumo. Hayfron Benjamin’s tenure as Chief Justice was one of the shortest in the history of the country because he too was a judicial activist who was not willing to toe the line.
The Motswaledi case was also taken away from one of the few liberal judges on the bench, Oagile Dingake, an avid constitutional scholar, was left out of the panel of three under curious circumstances.
The inclusion of Ian Kirby in the panel of three judges was also a most curious decision. Kirby is a long standing friend of the Khama family. When he was in practice, he was also the Khama family lawyer. One of Kirby’s grandchildren is called Seretse.
It is for these reasons that Motswaledi raised concerns that with Kirby as part of the panel of judges, he would not get a fair hearing. The vast majority of persons who sat in the public gallery at the hearing of the case also expressed misgivings about Kirby being assigned to the case on account of his historical association with Khama.
The judgment did little to quell any suspicions of bias, however misconceived they may be, because it failed to deal with the arguments raised by Motswaledi on the issue of immunity.
Although, the case was decided on the point of immunity, it does not in any way address the argument that Motswaledi raised concerning the President’s immunity from the jurisdiction of the courts.
It was common cause, during the hearing, that the President’s immunity, in his private capacity, is absolute. It was common cause that where action is taken in an “official” capacity, then the President does not enjoy immunity from civil proceedings.
The only issue between the parties that the court had to determine in this regard is whether the word “official” is limited to the President’s capacity as head of state, or whether it also extends to any other capacity in which he acts as an office holder. The court failed to define “official”.
It follows that whilst Motswaledi lost the case, it determined nothing because it did not deal with the line of argument raised by Motswaledi with respect to the issue of immunity.
The long and short of all of this is that citizens should be given a greater say in the appointment of judges through their Members of Parliament.
The United States provides one of the most transparent systems of appointing judges to the judiciary. Judges are voted into office by elected representatives of the people, following vigorous interrogations in which their entire history from their high school years is scrutinised.
The judges, who are appointed to the higher federal courts there, are not simply team-players, but men and women of great ideals and values that they passionately believe in.
Schools and many public places in the United States were desegregated after 1954 following centuries of discrimination against African American and minorities, not because the American constitution was amended, but simply because there was an activist court led by Justice Warren Burger.
The Burger court was able to interpret the constitution to recognise and expand the scope of many rights which had hitherto only been tepidly acknowledged. The Motswaledi and Good cases may have been decided differently had there been a liberal bench.
I therefore have a dream, that one day our country will also have judges appointed following a transparent process, and that liberal views will be represented in our judiciary so that there is competition of ideology and an advancement of people’s liberties. Judicial activists can be very instrumental in protecting citizens against tyrannical rulers.
* Dan Legala is a Sunday Standard contributor