Judicial determination is institutional, but dismissal is personal

I have had the rare privilege of witnessing at least two judges tell blatant lies in open court. I, therefore, have no illusions about the human frailties of judges. I have likewise witnessed lawyers tell lies in open court. There can never be an excuse for a judge to tell a lie in open court, but as I have said I have personally witnessed such conduct. To suggest that because judges are appointed in accordance with the constitution they are therefore angels is to fool ourselves. They are as human as the next guy. What we should rather say is that their position is a test of character. As in any test some will fail.
 
The recent decisions by the Court of Appeal on the essential service employees have interested me a lot. Also interesting has been the reaction of the judiciary to accusation of bias and lack of judicial knowledge on the part of some of the judges by the aggrieved unions. In my view the judiciary was out of line to make the pronouncements that it did in reaction to the public sector employees.
 
What would the judiciary do if people started accusing it of conduct bordering on corruption? As any lawyer knows, the judiciary makes pronouncements on issues properly placed before it. In the instant case on the question of so called “bordering on contempt”, what issue had been placed before the judiciary? As any lawyer knows the judiciary does not give advice, it determines issues. The judiciary therefore had no business giving advice about what “borders on contempt”.
 
It is dangerous to the public for the judiciary to make comments about issues not properly before it. I know for a fact that there is a decision by Kirby J, whilst a High Court judge, whereat he set out that contempt of court was a criminal offence requiring a standard of proof higher than in civil cases. What standard is to be applied in determining the commission of an offence called “a statement bordering on contempt?” It is not competent for the judiciary to create new offences and thereby apply subjective standards unknown to the general public.
 
One of the issues involved in the Kgosi Kgafela criminal case about floggings is whether there can be an unwritten criminal offence in Botswana. The general view of the government is that only criminal offences that are in a written law exist in Botswana. Is the judiciary suggesting that there is a new class, pseudo offences, that are not tried in court, but which can be relied upon to instil fear in the people, or to somehow moderate the conduct of citizens? As already stated the High Court has already made a determination that contempt of court is a criminal offence. Is it then competent for the judiciary to talk of something bordering on contempt.
 
We have seen Ministers charged of corruption acquitted by the courts even though the general public held that the Ministers had committed corruption. This the courts were entitled to do because they determined issues properly before them, applying well established rules. Would the general public be entitled to approach the courts on the basis that the Ministers had committed acts bordering on corruption? Would the courts entertain such issues? The answer is a definite no. Why then should the judiciary think it can make pronouncements akin to saying the unions are engaged in acts bordering on corruption?
 
I remember that in the not too distant past the Chief Justice made certain observations about investigation and prosecution of corruption cases. I do not remember the Chief Justice going out of his way to say that Ministers were going free even though their conduct bordered on corruption. Instead he observed that the courts determination of issues was controlled by the law. If the prosecution did not provide the evidence then the culprits go free. At the heart of this restraint on the Chief Justice’s part lay an understanding of limitation placed on the jurisdiction of the judiciary.
 
The judiciary cannot hide behind seemingly administrative announcements to extend its jurisdiction. The jurisdiction of the judiciary is limited to matters properly before the courts as determined by our constitution. The judiciary cannot therefore hide behind the constitution and at the same time violate the constitution. The constitutional appointment of judges does not take precedence over the limits placed on their jurisdiction by the constitution. I know there are some who have sought to find refuge for the comments of the unions in our democratic dispensation. That is not necessary. The judiciary has limits and any conduct that is not brought within those limits is not sustainable and may be treated with contempt.
 
I have no problem with the Court of Appeal decision on the unlawfulness of the strike by essential service workers. The general position of the law is that no party can waive a statutory provision that is not solely intended for their benefit. Since the law governing the public service is not intended for the employer and the employees it is not for them to decide when to waive its provisions. That there had been agreement between the employer and the unions regarding the strike is irrelevant for determining the legality of the strike by essential service employees. The two have no right to waive the provisions of the law for it was not intended for their benefit but for the general public good.
 
I have a problem with the finding on the dismissal. If newspaper reports are to be believed the Court of Appeal was determining an issue that was not before it. Rather it was the High Court that accurately reflected what the issue was about. The Court of Appeal suggested that the issue was about the rights of dismissed workers. This was never an issue. The issue was about the rights of workers before dismissal. There is even no logic in the statement of the issue by the Court of Appeal. If you are dismissed from work a decision adverse to you has already been taken.
 
There is also a play on words that I find disturbing. Instead of accusing the workers of contempt of court there is talk of “disobedience of a court order”. As already stated contempt of court is a criminal offence requiring a high standard of proof. Can anyone tell us what standard is used in determining “disobedience of a court order”? Talk of disobedience of a court order masks the shift from placing the onus on the accuser to the accused. It is this shift in onus, achieved through a play on words that can lead to accusations of bias.
 
In the first place were the issue about contempt of court then there would have been a need to prove that the accused was aware of the order and knowingly took a decision not to comply with the court order. There would have been an onus on the accuser to prove that the accused had been made aware of the order or can be deemed to have been aware of the court order. Stating the matter as contempt of court would have opened the door to the acquisition of a right to mitigate.
 
In order to avoid raising the need for mitigation you move away from contempt of court to disobedience of a court order. These types of shifts are bound to lead to suspicion of bias. In my view it is not for the courts to talk of matters bordering on contempt of court when the court itself has shifted from contempt of court to disobedience of a court order in order to avoid the inevitable conclusion that indeed there was a need to have heard the employees before dismissal. A contempt of court hearing of necessity requires mitigation. Mitigation can only take place by hearing the other side.
 
The logic involved is also suspect. If a nurse is on strike how does dismissal of the nurse improve the situation? Surely if I dismiss a nurse I do not thereby give rise to another nurse instantly. How then can one assume that the dismissal of a nurse improves the situation of the patient? It is this lack of logic that may lead people to become aggrieved and to attack the judiciary.
 
The judiciary may hide behind its institutional framework but dismissal is personal. There should therefore be no surprise that those who are affected personally would want decisions to be made on an issue before the court rather than on an issue that misstates the matter before court. The reaction of the judiciary suggests that matters became personal for its officers. How can the judiciary become blind to the fact that dismissal is personal? Even in our traditional Tswana Courts I have heard it said that some people on whom punishment has been inflicted sometimes take liberties to insult the kgosi, and get away with it. A judiciary must likewise have a thick skin.