Thursday, July 18, 2024

Is the law society missing the forest for the trees in its case against Masisi?

Those who are as broke as I am know that when you go a fuel station, you get the nasty experience where you tell the petrol attendant to put in fuel costing P100, and you notice the fuel needle has not moved much. You drive from your home to the office, and you get called to a meeting across Gaborone, which unfortunately does not improve your pocket, drive back to your office then home, and you realize that you need to refuel in the morning to reach the office the next day. Strange as it may seem this approximates to how our justice system is supposed to work. Needles must move.

The way I understand our criminal justice framework is that first there must be a report or belief that a defined offence has been committed or is about to be committed. That is the stimulus for moving the police or other law enforcement agency. The agency knowing the elements of the offence investigates and must come to a conclusion that indeed an offence has been, or is about to be committed. Once they have evidence that supports that a defined offence has been or is being committed their needle moves, and they forward the docket to the Director of Public Prosecutions.

The Director of Public Prosecutions then uses its own test to determine whether there is a prima facie case. I must confess I do not know what test they use, but a professional prosecution agency will know the elements of the offence and the required evidence to sustain a conviction. The expectation is that for the prosecution authority it is only after they form a professional opinion that they have a case that they can sustain in court that a decision is taken, that their needle moves.

I have come to realize that the general public has its own needle. The general view is an arrest signals guilt, and a prosecution even more so. The reality is that the public has no respect for what some call “legal niceties” of respect for constitutional order. The presumption of innocence is jettisoned the moment a person is arrested.

It is this disregard for needles of the state machinery to move, that buttresses the view, held by the public, that our courts grant bail readily without regard to offences that the accused are charged with. Our courts have developed principles for how bail applications should be handled, but such principles cannot, and should not triumph over the constitutional presumption of innocent until proven guilty.

Once the prosecution needle moves the matter is taken to court. The court’s needle never moves at this stage. The prosecution presents its case and the accused has an opportunity to move the court to hold that the prosecution has not presented evidence to prove that the accused has committed any offence. At this point the court has one needle to be moved, whether a court properly applying its mind may convict the accused. If the court holds that the accused has a case to answer the accused is called upon to present his or her defence.

It is instructive to note that at this point the accused may have disclosed its defence to the prosecution and the court during cross examination of the prosecution witnesses, and that the prosecution may have a burden to disprove the defences put forward by the accused.

When exchanges of allegations are made by the judiciary in the public domain one wonders what needle the protagonists want to move. I am here assuming there was some intention to have the exchanges find their way into the public. The problem is that the public has no official needle to move. We just comment, take sides or form opinions but we have no needle that moves.

The Motumise judgment has made it clear that in the case of judges the real appointing authority is the Judicial Service Commission. A judge is however not an employee of the Judicial Service Commission. The Chief Justice is appointed by the president but is not an employee of the president. The removal of a judge and the Chief Justice is a constitutional process not an employment law process.

I have come across reports that the Law Society has given the President notice of its intension to take him to court if he does not establish a tribunal to investigate the allegations made against the Chief Justice by Justice Ketlogetswe. From my reading of the constitution the tribunal has clearly defined scope. It investigates in order to establish whether a judge should be removed from high judicial office for inability to perform or for misbehavior. But before the tribunal is established the President must form the opinion that the question of removal of a judge ought to be investigated.

Should the matter go to court it will be ground breaking.  One of the questions that immediately arises is whether a President’s failure to form the opinion that the question of removing a judge from office for inability to perform or misbehavior can be subject to review by a court of law.

By way of context let us look at the distinction between Section 47 of the constitution, on exercise of executive power and Section 97(3) of the constitution, on removal of a judge. In the case of executive power the President is exercising a function. Can we say the same thing about him forming an opinion to consider removal of a judge? Does the President have a function to consider removal of a judge for inability to perform or misbehavior? If the answer is no, then what will the court be reviewing? The answer has to be yes, for the court to review the decision of the President not to establish a tribunal.

One of the things that will weigh on the President’s mind is that the position of judge is a constitutional office with security of tenure up to the age of 70. Further the President does not have supervisory powers over judges. The appointing authority of a judge is the Judicial Service Commission. In terms of the Interpretation Act the power to appoint includes the power to remove. One would therefore think that the Judicial Service Commission must have a say on whether removal of a judge should be considered or not. If the Judicial Service Commission has not received a complaint it has nothing to consider. It has no reason to approach the President.

If as some newspapers have reported, the Chief Justice has complained to the Judicial Service Commission, it is that complaint that it will consider, not the one sent to the President. Conflict of interest will arise with regard to both the Chief Justice and the Law Society. They will have to recuse themselves. The matter will then be dealt with by the President of the Court of Appeal and a person of integrity appointed by the President. If the Judicial Service Commission is seized with the complaint that is intertwined with allegations made by Justice Ketlogetswe the President may have reason enough not to form any opinion that the removal of any of the two judges be investigated and wait for the Judicial Service Commission to complete its work.

We very often hear talk about the need for the judiciary to be independent. One would therefore think that the expectation is that a President should not readily form the opinion that removal of a judge from office be investigated. If we do not treat this provision strictly then we open room for an attack on the very independence of the judiciary that we purport to desire.

The solutions to the difficulties affecting the judiciary do not have to be found within the judiciary and the legal fraternity. In the field of physics the attitude is that if a theory you formulate is proven wrong, you move on to look for a better one. Albert Einstein formulated the theory of general relativity, but apparently his mathematics was not good did not support it. There was even a formidable mathematician who took upon the task of providing the mathematics to support the theory. It is said that Einstein remembered an old mathematical solution that he had abandoned and he got help from a brilliant mathematician, it worked. The mathematician also got it right.

In the old days the issue of seniority within the legal fraternity was taken seriously. I am not suggesting that the capability and brilliancy of younger practitioners and judges should be overlooked. We are human beings and generally people learn over time, values, decorum, get entrenched, tested, reviewed and improved. Mistakes are made and learnt from.

After formulating his theory Einstein looked to the field of astronomy to prove him correct. Those who tried were frustrated by the vagaries of the weather and war, got inconclusive or conflicting results, but ultimately got lucky and proved him correct. The judiciary may have to look to other fields like human resource management, conflict resolution, philosophy of ethics, to rebuild itself. These may move the needle in the right direction.

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