To anyone who follows news about the judiciary, it was clear whom the opposition MPs were referring to when they debated the Court of Appeal Amendment Bill.
Like other opposition MPs, Molepolole North MP, Mohammad Khan, proceeded on a strict no-names-no-pack-drill basis but he certainly did say a mouthful. According to the intelligence that the MP said he has received, “this particular bill was drafted by that particular person at his home.” That person, he added, is 74 years old, “tired”, “has been serving the interests of the Botswana Democratic Party” and has reportedly “done a lot of harm” to the country.
Ramotswa MP, Samuel Rantuana, was more pointed. He lamented a profusion of “old” male white judges in the Court of Appeal and a glaring lack of black people. Some BDP MPs expressed concern about the racial tenor of Rantuana’s contribution but he refused to relent.
“Currently, five Court of Appeal judges are old white men and only two are Batswana. What is the problem with saying that?” he queried after an objection by the Minister of Agricultural Development and Food Security, Patrick Ralotsia. “Should we not say what is true when we debate?”
While he never elaborated on the point, the MP also raised concern that some CoA judges hold dual citizenship which he said has the effect of dividing a judge’s loyalty between Botswana and the other country. And while, never mentioning anyone by name, Rantuana said that some BDP MPs “are fronting for whites” and not representing the interests of their constituents.
Khan was not as forthright but he also alluded to racial favouritism that was putting Batswana (meaning blacks) on the back foot.
“I do not want to name the judges but we know them that have been there for so many years and have been protecting certain interests of some people in this country. The manner in which we do things … I do not want to use the word “white” – I have just used it – but the thing is we have Batswana that are qualified to be Judge Presidents. We have Batswana who are qualified to be Judges of the Court of Appeal. Why are we getting people from outside? Why are we undermining the intelligence of the children of this country? We have the cream of the crop. We have fantastic and intelligent people here that can do exactly that and maybe even better than some of these people,” he said.
To the Minister of Foreign Affairs and International Cooperation, Pelonomi Venson-Moitoi, the opposition bench was providing way too much detail as to compromise the identity of the person they were referring to. She remonstrated with Khan for revealing the age of the person he was talking about. The minister said that as much as MPs have the freedom to speak as they wish, they are not allowed to abuse that right by “pounding on the integrity” of outsiders who can’t defend themselves.
“I think we have done as much damage to those people in their own personal integrities as much as they can take. They are individuals and human too. They may be a particular colour and I think, Madam Speaker, it is time you stand up and protect them. They are of a particular age. Now, when we specifically say a 74-year old man, we are sticking to a particular individual,” Venson-Moitoi said.
The problem though is that there was nothing that the Speaker, Gladys Kokorwe, could do and when she tried, she only succeeded in undermining her own credibility as a referee. There is a parliamentary rule that prohibits MPs from naming outsiders during their debates. Both Rantuana and Khan had fully complied with this rule. Kokorwe’s first misstep was to agree to a demand by the Minister of Health and Wellness, Dorcus Makgato, that Khan should provide evidence of the allegations he was making way after the latter had completed his debate and had resumed his seat. Khan himself expressed disbelief at Kokorwe’s decision.
“Let me tell you something Madam Speaker, my time was up. You are asking me this question after my time expired. I have never seen this happen before,” the MP said.
Kokorwe also tied herself in knots when she asked Khan to both name the person he was talking about and provide evidence to back up his allegations. However, as Khan pointed out, naming that person would have been in breach of the very rules that Kokorwe as Speaker is supposed to enforce.
“Let me explain this to you,” the MP responded. “If you are requesting for evidence, if you are requesting me to speak now and quote the name of the person, are you not violating your own Standing Orders?”
It was then that Kokorwe shifted to safer ground, asking for evidence only. The resolution was that Khan would bring the evidence to Kokorwe’s office.
What is perhaps the most interesting aspect of this debate is that the opposition MPs were merely repeating what some in the legal fraternity have also publicly stated. The latter may have used slicker and more cautious language but the message is basically the same. At the 2016 opening of the legal year ceremony, then Chairperson of the Law Society of Botswana, Lawrence Lecha, raised concern about the racial complexion of the Court of Appeal. Some interpreted that as “racism” and this year, Lecha’s successor Kgalalelo Monthe, refuted such charge at the same ceremony.
“At the legal opening of the legal year in the 2016, the Society made a point that in the dispensation of justice, the presiding officers of court must reflect the demographics of the society that they serve. Further, the Society noted and still notes that this remains a challenge not so much in the High Court as in the Court of Appeal in that court gender, race and age are disproportionate to the demographics of the country. In making the above statement, the Society was hauled over coals, tarred, feathered and shamed as outcasts who were ill-mannered, racist and xenophobic. The executive was so agitated that a statement was immediately issued expressing the above sentiments and notifying the Society of an immediate embargo in relations,” Monthe said at the 2017 opening of the legal year.
Sunday Standard learns from good sources that the executive was also unhappy with how the former Attorney General, Athaliah Molokomme, handled this issue. The powers-that-be had expected Molokomme to rebut what Lecha had said about the racial complexion of the CoA in her own address but she didn’t do that. Some very powerful people at the high table are said to have exchanged knowing glances when it became clear that Molokomme was going to end her address without challenging Lecha’s statement. This will raise the question of whether Molokomme’s redeployment to the Botswana Embassy in Switzerland was some kind of punishment.
Some people (who include ministers) may not be comfortable with racial talk about the judiciary but there is a very strong sentiment about race in the judiciary.