Of particular note would be 2015 and 2016 when Botswana’s judiciary was mired in a series of ugly controversies that pitted former Chief Justice Maruping Dibotelo against 12 judges. This came after the judges petitioned Dibotelo for his leadership style and called for his resignation. Then followed a long-running court battle in which four judges who had been faulted for drawing double housing benefit were suspended. Some rapprochement was reached when the judges apologised to President Ian Khama for the petition and their suspension was lifted. Another set of four judges held out for some time but ultimately gave in. The more this drama played itself out in public, the more the judiciary’s dirty linen was exposed to the public. At one point, one judge pleaded loyalty not to the constitution but to Khama.
The latest figures from Fraser Institute, a Canadian think tank whose research Khama himself has quoted in his speeches, show that in 2010, Botswana’s score for “judicial independence” was 7.27 points. Then Khama had been president for only two years. In the year that Khama began fighting with High Court judges and sought to assert his authority over them, Botswana’s score for this indicator dropped to 6.11 points. Two years later, in 2017, the score had dropped farther to 5.45 points – a historic low.
A related indicator of “impartial courts” also shows that Botswana didn’t do well under Khama, who formed a new party this year as part of effort to claw his way back to power. Under President Festus Mogae in 2005, Botswana scored 6.57 points for this indicator. Five years later when Khama had been president for only two years, the score had declined to 6.32 points. It continued to decline further, dropping to 5.88 in 2015 and 5.31 in 2017.
Under the broad component of “Legal System and Property Rights”, Botswana also experienced a decline in the indicators of “military interference in rule of law and politics”, “integrity of legal system” and “reliability of police”. Khama infamously ignored recommendations of the Judicial Services Commission and appointed a judge of his own choice.
The EFW index, which investors pay close attention to, provides a comprehensive measure of the consistency of a country’s institutions and policies with economic freedom. The index is designed to measure the degree to which the institutions and policies of countries are consistent with economic freedom. Fraser Institute’s belief is that governments enhance economic freedom when they provide an infrastructure for voluntary exchange, and protect individuals and their property from aggressors using violence, coercion, and fraud to seize things that do not belong to them.