Botswana’s judicial system has taken a knock in the latest Economic Freedom Index which measures the degree to which the policies and institutions of countries are supportive of economic freedom. Forty-two data points are used to construct a summary index and to measure the degree of economic freedom in five broad areas, one being legal structure and security of property rights. Among the data points considered for the latter are judicial independence, impartial courts and integrity of the legal system. In as far as judicial independence goes, Botswana’s score has been declining since 2010. In that year, it was 7.27 and three years later, had dropped to 6.46. In 2014 (the last year for which the most recent data is available), Botswana’s judicial independence score dropped further to 6.39.
When first measured in 2000, Botswana scored 6.76 for “impartial courts”. This score has also been steadily declining because in 2005 it dropped to 6.57 and 6.32 in 2010. Three years later it was at 5.21 but crept up to 5.63 in 2014. If there is any one word that best describes the “integrity of the legal system”, it is stagnation. For 2000 and 2005, Botswana’s score was stuck at 6.67 and for 2010, 2013 and 2014, it has stagnated at 5.83. The years of 2015 and 2016 were perhaps the most turbulent in Botswana’s judicial history and on that basis it would be fair to surmise that when results for these years are released, the scores for the said data points would have fallen further. In a saga that continues to date, for that period the legal fraternity locked horns with the executive. First, President Ian Khama disregarded a recommendation by the Judicial Services Commission to appoint attorney Omphemetse Motumise as High Court judge.
This prompted the Law Society of Botswana to launch an unsuccessful legal challenge. Then 12 judges petitioned Chief Justice Maruping Dibotelo, raising a litany of complaints about his stewardship of the Botswana judiciary. Four of those judges (Dr. Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang) would be suspended by Khama (who is the appointing authority) for having unlawfully received housing allowance that they were not entitled to. The quartet maintains that the suspension was instigated by Dibotelo to punish them for being party to the petition against him.
The judges have since dragged Khama to court to challenge their suspension. As the saga unfolded, one of the judges withdrew his name from the petition, in the process pledging loyalty to Khama and Dibotelo. With a tribunal to investigate the alleged misconduct of the suspended judges having been appointed, the process to impeach them is already in train. Although three other judges have been found to have done the exact same thing under similar circumstances, no action has been taken against them. These and other developments have put a country once touted as “Africa’s shining example of democracy” under controversial focus.
From around the world, institutions that once used described Botswana with superlatives have expressed grave concern about what they see as erosion of judicial independence. The latest to join the fray is the International Commission of Jurists (ICJ) which has released a press statement condemning the government.
“The ICJ reminds the Botswana authorities of their duty to guarantee the independence, impartiality and accountability of the judiciary under international law, including the African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights, treaties to which Botswana is a party,” the Commission says. Perceptions that Botswana’s judiciary is not independent will come at great financial cost to the country because in their nature, investors are reluctant to put their money in countries where courts cannot be relied upon. Says the 2016 Economic Freedom Index:
“The key ingredients of a legal system consistent with economic freedom are rule of law, security of property rights, an independent and unbiased judiciary, and impartial and effective enforcement of the law.”