In Psychology, a great story of discovery is told of a man called Ian Pavlov and his dogs. In 1927, Ian Pavlov learnt during his research that, rather than simply salivating in the presence of meat powder, the dogs he used began to salivate in the presence of the lab technician who normally fed them.
Form this incident, Ian Pavlov predicted that if a particular object was present in the dog’s surroundings when the dog was presented with meat powder then that object will become associated with food and cause salivation on its own.
When Pavlov used a bell to call the dogs to their food, after a few repetitions, the dogs started to salivate in response to the bell.
Here in Botswana, appellate justice ÔÇô“meat powder”- is tethered to foreign judges- “the lab technicians” and we have become Pavlov’s dogs; we salivate when foreign men seasonally fly into this country to seat on the bench of the Court of Appeal to make permanent and ultimate legal decisions even on questions of tremendous and national significance.
Why must we have it determined by a foreigner whether this country is ready for the liberation of homosexuals?
We salivate regardless of what the outcomes of this system are. Even after forty four years, we still salivate and wag tails not caring to ask what the implications of this system are and, more importantly, whether this system is doing justice to our human rights jurisprudence or not. Like infants, we open our mouths by reflex and gobble up these decisions without question. We have been reduced to a nation without self-esteem and confidence; we have been instilled with fear for our own people, distrust for our own capabilities, infused with an inferiority complex to think less of ourselves.
As any citizen who cares will know, since the days of its birth, which predate independence, the Court of Appeal of the Republic of Botswana has been empanelled by foreign judges. It is only as recently as 1st October 2010 that Justice Kirby, a citizen, was appointed Judge President of the court taking over from Justice Patrick Henry Tebbutt, a foreigner, who had been at the helm of the Court of Appeal for not less than fifteen years and who at the end of his tenure received the Presidential Medal of Honour for Meritorious service from his appointer.
To save the phenomena, some validation or justification has been thrown about to defend this ‘sexist citizen-phobic’ practice. Perhaps the justification held some validity in the early years of Botswana’s independence when there were few Batswana who constitutionally qualified to be appointed judges of the Court of Appeal.
However, it is difficult to see how a country can go for more than forty years without a single citizen qualifying to hold the office of a judge in the Court of Appeal. It also cannot be true that after forty four years of independence Justice Ian Kirby is the only citizen who qualifies to be appointed to the Court of Appeal. The conclusion that there is a deliberate policy and design by the Government to exclude citizens from sitting on the national Court of Appeal is made inescapable by these very pertinent considerations. It compels one to probe and ask questions, what is it that the Government gets in foreign judges that it horribly fears it will not get in its own people? How did we get here?
The institution that is meant to be the final arbiter of our disputes, the harbor of public justice and morality of our laws, has been relentlessly trained not to have faith in its own people, to shut its people out, to see its people as a handicapped and helpless people that does not have amongst itself men and women capable of reading and giving meaning to their country’s laws and resolving disputes, a nation absent of those worth the station of an appeal judge.
The next generations must be pardoned for thinking that they had nincompoops for forefathers, as we too must, for leveling the same accusation at our senior attorneys for their negligent silence and endorsement of this worrisome state of affairs.
The theme of this article is that the time for a localized Court of Appeal is long overdue. In this article we discuss the legality of this system and argue that it is not only wrong but brazenly unconstitutional to have foreign judges outnumber local judges.
Moreover, the article conducts a brief survey of the implications of the system of appointing foreign judges to the Court of Appeal. When we conclude, in a separate installment, we look at some of the landmark decisions of the Court of Appeal and opine that there is a worrisome trend that runs through those decisions.
Unlike in the early post-independence era, today there are qualified citizens to be appointed judges of the Court of Appeal.
The former Chief Justice Nganunu, former judges of the High Court Justice Mosojane, Justice Marumo and Justice Collins, just to mention these few, are good examples. In addition, there are several senior legal practitioners who qualify for the posts. At the University of Botswana, there are resident and some naturalized expatriates such as Professor Ngo’ng’ola and Kiggundu who also qualify for these posts. Before the International Criminal Court spotted his talent and aptitude and appointed him Judge President of the Appeals Division of that Court, Professor Nsereko qualified to be a judge of the Court of Appeal.
Due to this fundamental change of circumstances, which occurred a long time ago, it can be argued that the continuation of appointment of foreign judges to the Court of Appeal can no longer enjoy constitutional support and protection.
We believe a Constitution is a living and organic instrument. It must be broadly, liberally and purposively interpreted so as to enable it to continue to play a creative and dynamic role in the expression, articulation and the achievement of the ideals and aspirations of and values bonding its people. An interpretation of section 100 of the Constitution which regulates the appointment of judges of the Court of Appeal can no longer accept for a reading that allows for the appointment of foreign judges overlooking qualified citizens.
Being an organic and living document, the Constitution must grow with the people and exhibit the development of the nation. We argue that while the Constitution allows the appointment of foreign judges to the bench it does not authorize that they continue to be appointed alone when there is clear evidence that they are citizens who qualify, to persist with such appointment amounts to unequal treatment and discrimination which conduct undeniably offends our constitutional ethos.
Further, the notion of a sovereign Republic that is etched under Section 1 the Constitution of Botswana is not a facile, meaningless and redundant phraseology, it sets a conceptual foundation of this country. Its location in the first seat of the Constitution is not fortuitous. It carries with it an ideology and a tangible constitutional philosophy that only a fool can dismiss as inconsequential and pure romanticism.
It vests the supreme power of governance in the people of Botswana. We submit that Section 1 of the Constitution espouses the idea of self-government, self-determination, of a free people with their own government made out of their presidency, their lawmakers and their own judges. The idea of sovereignty is not limited to the presidency and the legislature, it includes a country with its own judges vested with the duty to adjudicate their disputes and interpret their laws.
This idea does not, in our view, endorse the surrender of the entire judicial power to foreign men of other states without a demonstration of lack of qualified locals.
