Gaborone High Court Judge, Justice Michael Mothobi, this week delivered a scathing criticism of the Court of Appeal judges for failing to respond to criticism levelled against them by the Botswana Federation of Public Sector Unions (BOFEPUSU) leaders recently.
Citing the recent critical views by the BOFEPUSU leaders on the two judgements of the Court of Appeal and the appointment of its President, Justice Ian Kirby, Mothobi criticised the judges for failing to answer back.
“…There is an observation I would like to make. The judges are obliged to reassure citizens of their own independence in the problem solving process when criticisms are made.”
Mothobi made this observation when delivering a judgement in a case in which employees of the Rural Industries Promotions Botswana, who are members of the National Amalgamated, Local Government and Parastatal Workers Union, had taken the company to court.
Though the judgement centred on why Rural Industries Promotions Botswana reneged on its agreement to offer its employees exit packages, (the court ruled in favour of the employees), Mothobi took the opportunity to voice his concerns about the recent controversy surrounding the integrity of the Judiciary system.
“What I may have to say may provoke further thought by others who, like myself, are concerned with the dichotomy between values and text in a liberal democracy concerning potentially volatile matters such as industrial relations more so at a time when the focus of attention is supposedly on the integrity of an independent Judiciary such as ours.”
He added that what should be decisive are the values of a rule-based system.
Suggesting that the Court of Appeal judges should have hit back at BOFEPUSU’s criticism, Mothobi said, “For instance, in regard to Court of Appeal decision recently in the Attorney General and Botswana Land Boards and Local Authorities Workers Union, Botswana Public Employees’ Unions, National Amalgamated, Local Government and Parastatal Workers Union, Kefilwe Toteng), (judges) may add their voice towards countering misleading impressions the likes of which have been carried in the print media recently.”
In the 78 page ruling that was filled with harsh language, Mothobi noted that, “The misleading impressions I am talking about appear at first blush to draw heavily from a perspective that regards law and the courts (rightly or wrongly) as an emanation of the state and so serving the general interests of the class or section of the population in power.”
Yet, Mothobi said, the challenge of those who hold this ideological conception of law, more particularly within the labour movement in the country, is determining precisely what social rules are enforced by courts which supposedly further class and partisan interest; how they are enforced and how effective that enforcement is instead of refraining from making value judgments themselves about the personality of those who man the courts.
Mothobi’s ruling also underlined his apparent disappointment at the sour relationship between government and unions.
“I’m saying so because the ‘struggle’ of labour (to be sure) is carried on within the framework of certain ‘rules of the game’ , the same rules mutually agreed on by the government of the day, labour and private sector interests which (on one view) limit the methods by which they can use to challenge the status qou,’ said Mothobi.
According to Mothobi, it is in the public interest that good industrial relations should be allowed to flourish adding that this object is attained when all agreements are observed. He said the trade union’s decision to litigate, contrary to what some may think, illustrates labour’s total investment in the democracy project and that should be commended.
Mothobi also voiced concerns that the controversy of judicial rulings today cannot be explained on the theory that the superior courts are reluctant to resolve labour disputes against the executive branch of the government.
“To maintain that they possess such powers even if they were not restrained by the constitution would, in my view, be a heresy. True, the issues arising from labour disputes are not always to be treated as of purely technical character concerning the interpretation of this statute of that statute,” said Mothobi.
The judge further observed that when the grievances complained of transgress the ordinary contractual relationship between employers and single employee and touch on the wider industrial relations involving the employer or employers’ associations and the trade unions or employees as a class, the engagement of the core of the Constitution of the Republic becomes more tense.
“”Seemingly, labour disputes of the immense proportions as have been witnessed in the recent times simply did not always reach the superior courts. Why this should be so is something of a mystery,” said Mothobi.
He added that “perhaps it is explained by lack of access to the courts, or lack of means by the trade unions, or (as some would argue) placidity, But is only one perspective.”
The judge also noted that resolving labour disputes is far from easy.
“It is not a task to be carried out arbitrarily, nor, in my opinion, have the courts done so, thus far anyway. The courts in this country, and I say so without any pangs or compunction have persistently striven to attain this cardinal principle,” said Mothobi.
The real question, Mothobi said, is what should be understood from these decisions that appear to be inconsistent with the principle.
“The ways of the bench have not only been understood by our citizens. Judges carry out reasoning in quite different settings with individual histories and unique contemporary philosophical and political contexts at play in influencing their decisions,” he observed.
Not unnaturally, Mothobi said, “we expect individual experiences in the way such matters are handled”.
He said there is no single doctrine or set of principles about legal reasoning or general legal theory to which the judges collectively subscribe.
“There are many perspectives, as, for instance, legalistic, formalistic, liberal, and progressive and while the methodology in use may be similar or substantially the same or a similar set of facts may be treated from the same point of view, it is hardly ever identical,” observed the judge.