While Botswana does fairly well in the 2015 Global Competitiveness Report in terms of judicial independence, results in the next edition may be less than positive.
Asked to state the extent to which Botswana’s judiciary is independent from influences of members of government, citizens, or firms with a score of 1 representing “heavily influenced” and 7 “entirely independent”, respondents leaned towards the latter producing a total score of 4.9. In terms of ranking, Botswana got an impressive position 35 from a total of 144 countries.
However, for the first time ever, Botswana’s judiciary is being roiled by turmoil of epic proportions. Some two months ago, 12 Associate High Court judges petitioned for the impeachment of Chief Justice, Maruping Dibotelo, because of apparent unhappiness with his stewardship of the Department of the Administration of Justice. Subsequent to that, one of them, Professor Kholisani Solo, withdrew his signature from the petition and in a letter through which he did so, pledged his loyalty to both Dibotelo and President Ian Khama. Sunday Standard did a story on this issue, quoting Solo’s letter at length.
Republican constitutions like Botswana’s prescribe a strict standard (separation of powers) through which the executive, judiciary and legislature must exist as separate, independent arms of government. Solo’s assertions are now being questioned by Levi Holonga, a Botswana Public Employees Union member who wants the judge to recuse himself from a case in which he is suing the Civil Aviation Authority of Botswana (CAAB) for unfair dismissal. Referring to the Sunday Standard story, Holonga argues that “These allegations, if proved to be correct, will definitely compromise the standing of his Lordship (Solo) as an impartial adjudicator in cases where the appointing authority, who is also the head of the executive, has an interest, as the case in the present matter where I am suing CAAB.”
A fortnight ago, when Botswana celebrated its 49th anniversary of independence, Khama honoured two Court of Appeal judges, Ian Kirby and Isaac Lesetedi, with presidential honours. He awarded Justice Lesetedi the Presidential Order of Honour on Independence Day for “notable judgments in a number of legal areas ranging from commercial law, land law, procedural, family, administrative, customary and constitutional and customary law.” Last week, the Botswana Federation of Public Sector Unions strongly criticised both the president and the judges saying the award undermined judicial independence.
“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? asked BOFEPUSU’s spokesman, Ketlhalefile Motshegwa, in an open letter to the president and the two judges.
Also before the High Court is a case in which the Law Society of Botswana wants to lessen presidential prerogative in the appointment of judges. Khama rejected a recommendation made by the Judicial Services Commission that he should appoint Omphemetse Motumise as High Court judge.
Ultimately though, what the 2016 Global Competitiveness Report says about judicial independence will be based on the perceptions of those who are interviewed for the report. The World Economic Forum (which produces the report) has a network of over 160 partner institutes worldwide that have the capacity “to reach out to the business community” and “follow detailed sampling guidelines to ensure that the sample of respondents is the most representative possible.” In Botswana, the WEF partners with the Botswana National Productivity Centre and in the final analysis, what score the country gets will be a reflection of what the local business community perceives to be accurate about judicial independence.
Besides the WEF, there will be other institutions measuring judicial independence in Botswana and it is reasonable to assume that the outcome of the judicial-independence cases currently before the courts will impact on the country’s ranking.