Savouring what he considers to be his victory against the government in the “Butterfly” case, former president Ian Khama lamented precipitous decline in the “rule of law” in a country whose executive leadership has been inherited by his nemesis and successor, President Mokgweetsi Masisi.
On the basis of research done by a Canadian think tank whose findings Khama thought credible enough to periodically incorporate into his presidential speeches, the rule of law is the last thing he would want to talk about in the manner he did.
The latest edition of the “Economic Freedom of the World Report” published by the Fraser Institute shows progressive decline in Botswana’s scores for the area of Legal System and Property Rights. This area focuses on the importance of the legal system as a determinant of economic freedom.
“Many would argue that it is the most important function of government,” says the report, adding that the key ingredients of a legal system consistent with economic freedom are rule of law, security of property rights, an independent and unbiased judiciary, and impartial and effective enforcement of the law.
Two years after Khama took over as president from Festus Mogae (that is in 2010), Botswana’s score on this area was 6.68 but five years later, had declined to 6.11 and further to 5.34 in 2016. Legal System and Property Rights has nine components which indicate how effectively the protective functions of government are performed. In the case of Botswana’s decline, notable among these are Impartial Courts, Judicial Independence and Military Interference in Rule of Law and Politics. In 2005, Botswana scored 6.57, two years later, that score had dropped to 6.32 and the following year dropped further to 5.42. The country’s score for Judicial Independence in 2010 was 7.27, dropped to 6.11 in 2015 and in 2016 was 5.34. Two years after Khama took over, Botswana was still scoring a perfect score (10.00) on Military Interference in Rule of Law and Politics. However, that changed in 2015 when that score dipped to 8.33 and remained unchanged the following year.
The years of 2015 and 2016 were perhaps the most turbulent in Botswana’s judicial history and it comes as no surprise that the country’s scores for those years is as low as it is. In a saga that began in 2015 and ended after two years, the legal fraternity locked horns with the executive. First, Khama disregarded a recommendation by the Judicial Services Commission to appoint attorney Omphemetse Motumise as High Court judge. This prompted the Law Society of Botswana to launch a long-running and ultimately successful legal challenge. Then, 12 judges petitioned then Chief Justice Maruping Dibotelo, raising a litany of complaints about his stewardship of the Botswana judiciary. Four of those judges (Dr. Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang) would be suspended by Khama (who is the appointing authority) for having unlawfully received housing allowance that they were not entitled to. The quartet maintained that the suspension was instigated by Dibotelo to punish them for being party to the petition against him.
These and other developments put a country once touted as “Africa’s shining example of democracy” under controversial focus. From around the world, institutions that once used described Botswana with superlatives expressed grave concern about what they saw as erosion of judicial independence. Among those joining the fray was the International Commission of Jurists (ICJ) which released a press statement condemning Khama’s government.
The “Butterfly” is a now two-year old saga that involves Khama, the former Director General of the Directorate of Intelligence Services and Security, Colonel Isaac Kgosi, a DISS employee called Wilhelmina Maswabi – codenamed “Butterfly” as well as South African tycoon, Bridget Motsepe-Radebe. Khama, Kgosi and Maswabi – who became the face of the saga, are alleged to have trucked out P100 billion from the Bank of Botswana foreign reserves and laundered the money into a bank account controlled by Motsepe-Radebe. On Wednesday, international forensic investigators cleared the quartet, noting that the so-called evidence was actually fabricated by the Botswana government.
