In the last instalment, (Africa and the ICC: Only the guilty are afraid, Sunday Standard 16, October, 2013), I made an observation that as a country we took an informed position regarding the usefulness of such a supra-international institution as ICC in interfering in judicial affairs of developing countries, especially African ones. I made it very clear that our stance was understandable in the face of generally weak judicial structures that dominate in many of these countries. I reiterated the point that, at least for now, we should not be so much worried about ICC in our own backyard given the relative strength of our judicial system.
By the way, part of the accusation by African governments advanced in Addis Ababa was that ICC was just targeting African leaders. I noted that it was logical for ICC to intervene in Africa given the fact that it is the same African governments that invite ICC in their gardens because they do not have sufficient capacity within their judiciaries to prosecute over cases of genocide, war crimes, and crimes against humanity, among others. We were an exception solely because we had over years build very strong institutions, including judiciary, to guide in management of our own affairs. Hence, there was no reason for outsiders to come to our rescue!
What I thought to be a very straight forward argument turned out to be a source of uneasiness amongst many of my colleagues. In particular, I was accused of being haste in addressing the matter that related specifically to pronouncement made by our Chief Justice, Maruping Dibotelo. The conclusion I reached, for those who did not get a chance to read my piece, was that he deserved to be commended for challenging the legal profession to introspect and take appropriate action on Forum Shopping. Certainly, that circular by the Chief Justice talked much about the need for reform and renewal in our judiciary. He was simply calling for transformation and, in turn, striving to enhance the institutional capacity of our legal system. Again, I still maintain that his call is a commendable one.
Of course, there has been a concerted effort on the part of key stakeholders for measures to be put in place to address issues of concern in the judiciary if we were to maintain the credibility and efficiency of our institutions. Rather than just focusing on Forum Shopping, stakeholders in the judiciary are calling for a sweeping reform of the judiciary, including among others, the manner in which judges are appointed. The current ways in which judges are appointed, critics argue,gives the Executive too much scope to manipulate and bring its own favoured applicants. This to them has a potential to compromise the independence of the bench. Certainly that is not what we want because the judiciary plays a central role in advancing democratic practise in our republic – by maintaining the rule of law.
To me these people and institutions are merely expressing similar sentiments to those of the Chief Justice. Where they differ, I suspect is on how far that changes ought to go. Naturally, Maruping Dibotelo prefers a kind of a narrow approach ÔÇô where we simply tweak around the corners to address issues with a potential to affect the system negatively. However, critics would rather prefer a complete overhaul of the system. They don’t want piecemeal approach to transforming the judiciary.
To be honest, the difference expressed by both parties is just a matter of scope instead of substance. They both acknowledge the need for judicial reform if we are to maintain our position as a functional democracy.
As I have indicated above, I received harsh criticism for implying that the Chief Justice acted boldly in calling for an end to Forum Shopping. As an illustration of my hastiness in dealing with the matter, my attention was brought to subsequent strike by Lobatse judges, the threat from the Botswana Law Society – including possible impeachment of the Chief Justice, unless he apologised for his circular. To my critics these actions do not reflect well on his intentions. Instead, he only helped open old wounds. But for reforms to institutionalise we have to go through pain.
Someone has to start the ball rolling. And in this case, the Chief Justice did that. He provided a fertile ground for debate.
We cannot deny that a point of convergence arises from both the Chief Justice and his critics: there is a need for reform in our judiciary. That alone is something that should not be viewed lightly. Indeed, it is an indication of the exceptionality that we demonstrate to others about the democratic culture we enjoy in our country. When the time is ripe for reforms we debate issues despite our differences. Even in the current climate of suspicions between the Chief Justice and members of the legal fraternity, they are all free to express their views. However, what is important is the need to talk to each other instead of past each other because it is only through dialogue that we can reach a common position. A position that potentially serves better to address concerns from both side of the isle.
Consequently, I still maintain that what the Chief Justice did proved a necessary evil in so much as reforming the judiciary in our republic is concerned. Let us not resist change but embrace it so that we can enhance the capacity and capability of our judicial systems. Otherwise, the alternative is to do nothing. Inaction, unfortunately, leads us to nowhere. But if we are to maintain or improve on our standing as a shining example of democracy in an otherwise dark continent, we should brace ourselves for changes in the way we do things. Perhaps the unintended consequences of the circular by the Chief Justice, has been a wider call for comprehensive reform of the judiciary from other key stakeholders. The hope is that he will act on their suggestions. In the end, we will all be winners amidst heated and sometimes personal debate that dominate at the moment.
