Friday, July 3, 2020

Integrity of the judiciary has to be safeguarded

The judiciary in Botswana has always been held in the greatest of respect and the highest of regard.
At the core of that regard and respect has been an underlying belief that judges dispensed of justice without fear and without favour.

Because, as a people, we believed and trusted in the system, we gave our judges a blanket faith that they were men and women of honour ÔÇô men and women of irreproachable integrity.
The upshot of it all was that we took their word for it, literally.

As is so often the case in a democracy, our faith in the judiciary made them the bulwarks against excesses by the powerful.

We took it as an article of faith that because judges presided on the judgment of other people, as a rule they should themselves be people of impeccable record.

If it ever crossed our minds, we never said it, at least not publicly that judges were just ordinary human beings like the rest of us with human weaknesses, human defects and many fallibilities.

It has been a kind of trust that no doubt brought immense loads of responsibilities on our judiciary.

Even as we differed with their judgments and were indeed often pained by them, it never crossed our mind as the general public to even start to question the sanctity of this important institution.
Sadly doubts over the judiciary are growing and indeed spreading.

The cracks of trust are beginning to show and we can only deny the existence of such cracks at great cost to ourselves as a people, but also at the expense of this very indispensable institution.
These are not just philosophical doubts. They also are very practical doubts of independence, not least from the executive.

Linked to that is the fact that the public is increasingly beginning to interrogate the moral rectitude of some of our judicial minds. And the outcome is not always encouraging.
Perhaps it was always inevitable that the wall of trust would at some stage eventually start to crack.

Powerful as it may seem from outside, the judiciary is an intrinsically fragile institution.
It is premised on inherently delicate principles of trust, decency, integrity and credibility.
Integrity and credibility are just some of the key components that should not be lacking in any judiciary worth its salt. Reliability and decency are the institution’s only stock in trade.
Because the judiciary does not have any weapons to enforce its rulings, it relies very heavily on that public trust.

That our judiciary has to do something to reassert faith and trust among ordinary people is plain enough. It has to start with the manner the judges are themselves appointed.
The manner of choosing judges no longer inspires confidence.

An impression has been allowed to take root that the current President stacks the judiciary only with his soul mates whom he expects to carry the can for him should there be a need.
Whether that is true or not, it is a perception that the judiciary would do well without.
That unfortunately is not the only blight the judiciary has to contend with.

There is also a concern that quality and indeed standards have been going down.
It would seem like the Judicial Service Commission, which used to be the de facto appointing authority of judges before that mandate was usurped by the President, has not altogether escaped the charges of complicity.

The JSC, which by law is composed of some of the country’s most respected, has in some instances been accused of colluding with the executive (consciously or not, we shall never know) to allow for the meddling that detractors are alleging.

For their part, the executive does not seem to have any problems with the growing public disquiet over both quality and indeed general reputation of the judiciary.

For the current administration, the judiciary, as has happened with other semi-autonomous institutions of governance has to be defeated and brought under total control of the executive.
One legal scholar has argued that in a democracy, judges are expected to be moral agents who can be relied upon to dispense of their duties independent of venal considerations. Judges should perform their duties without fear or favour, not even from the state or any of its institutions.
As a country are we in a position where we can confidently say our judges are beyond such suspicions?

The judiciary itself should never lay claim to any aura of omnipotence.
Justice Johann Kriegler of South Africa once said judges are lawyers not sages, and I cannot agree with him more.

In their quest to cover themselves with glory, judges should never pretend that they are anywhere closer to God than the rest of us. They may judge over us, but beyond that they remain human.
A decision to publicly advertise judicial appointments was a commendable step that cannot be easily, much less fairly dismissed.

But having taken a brave step to advertise judicial posts, the authorities and, of course, the Judicial Service Commission should now not resort to fixing appointments through the backdoor.
That in my opinion would amount to deceit. And as a country we cannot afford to have judges that have themselves been appointed through a deceitful process.

Which is perhaps why more and more people are calling for more transparency regarding the appointment of judges. A suggestion has been made that prospective candidates should be interviewed in public.

Those who think the appointment of judges is too weighty a legal matter to involve the public are simply deluding themselves.


Read this week's paper

Sunday Standard June 28 – 4 July

Digital copy of Sunday Standard issue of June 28 - 4 July, 2020.