Commentary on Justice Mercy Garekwe’s judgement in which she dismissed with costs Mme Wilheminah Maswabi’s (also known as Butterfly) attempt to be compensated for defamation by the State went into overdrive-cum-confusion. Part of the confusion particularly to some of us who are not versed in legal matters, emanated from the fact that we confused Justice Garekwe’s judgement with that of Justice Dr Zein Kebonang in which the latter recently ruled in favour of Butterfly wherein he discharged and acquitted her on charges preferred against her by the Directorate of Public Prosecutions. How could public officers found to have fabricated Butterfly’s case not be liable to personal legal suits so went the confusion? In the defamation case, Justice Garekwe ruled that Butterfly was simply barking at the wrong tree by seeking personal compensation from public servants listed in her relief papers and who, by virtue of their official positions, were acting on behalf of the State. I will later on discuss the unintended consequences of official immunity where and when it becomes clear such immunity protects public officers who masquerade as performing official duties when in fact, there is demonstrable malicious intent.
In her judgement, Justice Garekwe held that ‘As a result, the right party to have cited in these proceedings was the Attorney General and not one of the first five defendants. This issue makes a mockery of the attempts by the plaintiff (Butterfly) to hold the 2nd through to 5th defendants liable for actions of the 1st defendant when they are not employers of the 1st defendant but the Government of Botswana. In my judgement, therefore, the manner in which the plaintiff has pleaded her case falls way short of disclosing a cause of action against the 2nd through to the 5th defendants.’ These defendants as cited are the Director of Public Prosecutions, the Directorate of Corruption and Economic Crime, the Directorate of Intelligence and Security Services and Botswana Police Services. The 1st and 6th defendants are Jako Hubona who was the lead investigator and the Attorney General respectively.
In trying to find out on what basis Justice Garekwe may have been coming from to absolve public officers cited by Butterfly in her defamation suit, I came across an article titled ‘Immunity for Public Officers’ by Vermont League of Cities and Towns. It defined official immunity as ‘A common law doctrine that protects public officers from personal liability for civil damages sustained from wrongs alleged to have been committed while acting in furtherance of their official duties. It rests on the theory that public officers should not face personal liability exposure for doing their jobs….’ The article goes further to categorise official immunity into Absolute and Qualified Immunity wherein it posits that ‘Courts recognise two types of official immunity (1) absolute or unqualified immunity and (2) good faith or unqualified immunity. Both immunities protect public officers from suit for their official acts and omissions…..As the name suggests, absolute immunity offers public officers complete protection from suit for acts committed within the scope of their official duties, regardless of whether they were performed in good faith or not….By contrast, qualified official immunity is, as its name suggests, qualified in the sense that it requires a public officer to satisfy several elements as a condition of attaining immunity. Officers must demonstrate that they were (1) acting during the course of their employment…and within the scope of their authority; (2) acting in good faith…’ In conclusion, the paper posits ‘Of course, no defence is perfect and the best protection against tort suits continues to be the exercise of reasonable care in all official activities with the goal of preventing harm from occurring in the first place. After all, if there is no harm, there can be no damages.’
On the basis of the points raised in the above article, the decision of Justice Garekwe to absolve 2nd through to the 5th defendants accords well with it. And absolving the defendants cited therein because they were acting singularly and collectively in furtherance of the State case in their official capacities against Butterfly appears to be the underpinning consideration so I think. While the defamation matter before Justice Garekwe was purely to seek compensation and other reliefs as stated in court papers by Butterfly, one would always not lose sight of the judgement of Justice Dr Kebonang who held that the charges levelled against her were more than anything else, fabricated. I am duty bound to be fair to Justice Garekwe on the basis that she was dealing with the ‘narrow issues’ of defamation and compensation by Butterfly. The bigger question I ask myself is whether the 1st defendant Jako Hubona through to the 5th defendant cannot be classified as having maliciously targeted Butterfly in order to defame her?
I respectfully rely on Justice Kebonang’s judgement in this regard. Targeted malice is defined by those competent as ‘when a public officer intentionally abuses their position with the motive of inflicting damage upon the claimant’. That is, is it not the expectation of public officers to conduct investigations against members of the public in a manner that does not in any way injure the dignity and reputation on those they investigate? I want to believe that while public officers act in official capacities in their duties, there must be semblance of them doing so such that in the end, no defamatory suits follow or, they are found wanting in any form or shape.
Official immunity is a catalyst to State institutions and its operatives running amok if not rogue in inflicting untold and probably irreparable harm to those they investigate. I will readily accept official immunity is relevant and desirable in circumstances where it is demonstrable that public officers acted in a rational manner within the parameters of call of duty and more importantly the law in the execution of their duties where bad faith and malice in any form or shape do not arise or suggested. In the absence of demonstrable bad faith and malice amongst others, public officers will continue to run amok with the understanding that even if their actions are discovered later to have been wrong, they do not personally suffer in terms of bearing punitive financial punishment for their wrong actions. In the era of State institutions becoming deadly political weapons of mass destructions towards political and other targeted persons, public officers become the enabling tool to perpetuate political and other interests. These are highly unacceptable in the context of the Rule of Law and accountability.
So what am I saying? I am saying much as Justice Garekwe’s judgement on Butterfly’s defamation suit was dismissed with costs presumably on official immunity doctrine though she stated categorically therein that Butterfly had to sue the Attorney General instead of those cited as defendants, the downside of overly protecting public officers flies in the face of expected accountability by those holding public office on behalf of the State. Public officers who during the course of their duties commit genuine and honest but regrettably costly mistakes must be protected while those who choose to pursue nefarious agendas must be left to dry alone on the laundry line. Otherwise, the State will continue to incur high compensation costs as a result of malicious defamations perpetuated by its errant and rogue agents. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe.’ Covid-19 virus is still very much active in our midst. Consequently, adherence to all health protocols remains paramount and not negotiable. At the same time, let us all avail ourselves to be vaccinated.
