Sunday, May 22, 2022

Botswana’s judicial independence has ‘deteriorated significantly’

Africa’s “shining example of democracy” has been described in uncharacteristic terms in a report co-authored by the African Union Commission, the United Nations Economic Commission for Africa, the African Development Bank Group, and the United Nations Development Programme – Regional Bureau for Africa.

“Overall, Western Africa has improved in relation to rule of law since 2014 and is now doing better than Southern Africa, whose score has fallen,” says the four organisations in a report that analyses Africa’s progress towards the Sustainable Development Goals. “Central and Eastern Africa have remained consistently low. In Western Africa, a number of States have ended violent conflicts and are now building institutions to enhance the rule of law, such as in Liberia and Sierra Leone. Southern Africa’s score remains relatively high due to strong institutions, but Botswana, Mozambique and South Africa have deteriorated significantly due to government involvement in judicial independence.”

Officially, Botswana’s three arms of government are equal but the reality is that the executive is more powerful than both the legislature and the judiciary. For decades until the Court of Appeal definitively clarified constitutional provision on the appointment of judges, the president had free rein on whom to appoint to the bench. That changed when President Ian Khama rejected a candidate (Omphemetse Motumise) recommended to him by the Judicial Services Commission (JSC). The Law Society of Botswana (LSB) successfully challenged that decision through the court system. While Khama would end up appointing Motumise, the presidency still wields immense power over the judiciary because it retains the right to appoint members of the JSC.

Until the Motumise case, lack of judicial independence was conceived and talked about in quite broad terms. Following this case, there were more examples that were mentioned in the context of executive overreach. Top of the list was the case of the four High Court judges who were suspended by Khama. The judges had made a double claim on their housing allowance but it would later emerge that many more judges had done the exact same thing. Khama didn’t suspend the latter, lending credence to widespread speculation that the four judges had been singled out for punishment because they had raised grave concerns about the way then Chief Justice Maruping Dibotelo was running the Administration of Justice.

Another issue that has been interpreted as interference in the judiciary is “forum shopping.” The latter is a practice adopted by litigants to get their cases heard in a particular court that is likely to provide a favourable judgment. The gravity of concern about forum shopping is such that, beginning in 2012, it is routinely raised at the opening of the legal year in early February. All along it has been representatives of the LSB who raise this issue but last month it was no less a person than the Attorney General, Abraham Keetshabe, who did. Late last year, the Chief Justice, Terrence Rannowane, was himself accused of forum shopping when he re-assigned a criminal case involving Khama – who stepped down in 2018.

Peace is one of the five pillars of the SDGs and a fair and independent judiciary is an important component of that pillar. The report’s authors consulted with stakeholders and policymakers throughout Africa, including African government representatives, academia and civil society.

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