Botswana’s judicial independence is at the lowest it has been since a Canadian think tank started tracking it in 2005. In turn, that has affected the country’s overall score in the area of “legal system and property rights” in Fraser Institute’s Economic Freedom of the World (EFW) Index 2017.
When the tracking started, Botswana scored 7.22 and five years later, the score rose marginally to 7.27. In 2014, the score dropped to 6.39 and farther down to 6.11 in 2015. Botswana also does poorly in two related components: “Impartial Courts” and “Integrity of the Legal System.” When Fraser Institute started tracking the first component in 2000, the country scored 6.76 and five years later, was down to 6.57. In 2010, the score dropped further to 6.32, even farther to 5.63 in 2014 and in 2015 had risen marginally to 5.88. The integrity of the legal system was scored at 6.67 in 2000 and 2005, dropped to 5.83 in 2010 and remained at that level in 2014 and 2015.
Legal System and Property Rights (Area 2) focuses on the importance of the legal system as a determinant of economic freedom.
“Protection of persons and their rightfully acquired property is a central element of economic freedom. Many would argue that it is the most important function of government. 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. The nine components of Area 2 are indicators of how effectively the protective functions of government are performed,” Fraser Institute says.
Beginning in 2015, Botswana’s judiciary has been mired in a series of ugly controversy that have pitted Chief Justice Maruping Dibotelo against 12 judges. This came after the judges petitioned Dibotelo for his leadership style and called for his resignation. Then followed a long-running court battle in which four judges who had been faulted for drawing double housing benefit were suspended. Some rapprochement was reached when the judges apologised to President Ian Khama for the petition and their suspension was lifted. In no way is the controversy over because another set of four judges ÔÇô who just lost a case at the High Court ÔÇô are still holding out. The more this drama plays itself out in public, the more the judiciary’s dirty linen is exposed to the public.
The EFW index provides a comprehensive measure of the consistency of a country’s institutions and policies with economic freedom. The index is designed to measure the degree to which the institutions and policies of countries are consistent with economic freedom. The report says that governments enhance economic freedom when they provide an infrastructure for voluntary exchange, and protect individuals and their property from aggressors using violence, coercion, and fraud to seize things that do not belong to them. It adds: “In this regard, the legal system is particularly important. The country’s legal institutions must protect the person and property of all individuals from the aggressive acts of others and enforce contracts in an even-handed manner.”