There is a famous story within the legal fraternity of a wrestling match that unfolded between Mpaphi Phumaphi and a former Chief Justice during the opening of the legal year back in the day. Phumaphi, now a former High Court Judge, was by then a fiery young attorney who also led the Law society of Botswana (LSB) as Chairman. During his address, Phumaphi is said to have shot from the hip, lambasting the Chief Justice and firing salvos at the judiciary. Exasperated and embarrassed in front of national and international guests, the said Chief Justice lost his temper and jumped onto the stage, wrestling the microphone from Phumaphi in a bid to stem his tirade.
Perhaps it was Phumaphi who set the tone for what would be a strained and often acrimonious relationship between the judiciary and the executive on one hand, and the LSB on the other hand. This acrimony reaches a crescendo and is laid bare at the opening of every legal year. Every year the Chief Justice and the Attorney General take turns to lash out at lawyers; then the LSB Chairman hit back during his address. It has been like that since that fateful day when the Chief Justice wrestled Phumaphi.
After the Phumaphi debacle, the LSB once again riled the executive and the judiciary in 2006 when it questioned the appointment of Justice Ian Kirby as Judge of the High Court. Then Chairman Omphemetse Motumise queried Justice Kirby’s appointment as High Court Judge hardly a year after retiring from the public service as Attorney General and asked whether certain positions within the judiciary were reserved for specific individuals.
Kirby had previously served as Deputy Attorney General and was later appointed a Judge. He later returned to the executive arm of government as Attorney General; and was upon reaching retirement age reappointed to the judicial bench as a Judge. Kirby is currently President of the Court of Appeal.
Said Motumise at the time: “We should not create an impression that some positions are reserved for certain individuals. Anyone should be able to rise to the highest position in the land.” He further cautioned that having one individual shuttling between the judiciary and the executive will corrode the principle of separation of powers and blur the lines between the judiciary and the executive.
During the opening of the 2008 legal year, Duma Boko caused uproar when he declared that Botswana’s judiciary was infested by “sing-along-Judges who subscribe to a truncated and ineffectual application of the constitution”.
“We have been assailed with a jurisprudence of limitation and defensive anxiety. These are sing-along judges who still allow the executive to wave that internationally tarnished talisman of ‘national security’ to hold people in detention without trial,” said Boko, much to the chagrin of the Judges.
He urged the legal fraternity to reaffirm its unwavering commitment to the rule of law, exercising judicial vigilance and protecting its independence and integrity.
“Judges must have the moral authority and the courage to check any lapses and excesses by government.”
In 2009, then LSB chairman Tebogo Sebego threatened to arraign President Ian Khama before the International Criminal Court (ICC) after a string of extra judicial killings that climaxed with the mafia style shooting of John Kalafatis.
“Botswana’s security forces are answerable to President Khama. Lawyers have resolved to petition the President to seek assurances that extra-judicial killings will not continue; and that the killings thus far recorded will be fully investigated and the perpetrators brought to book. If we do not get a satisfactory response we will take up the issue with the ICC,” said Sebego at the time.
The LSB also sided with the media fraternity against government with regards to the Media Practitioners Act, refusing to avail a representative to sit in the Appeals Committee of the Media Council of Botswana.
Perhaps the most bruising war between the LSB, the executive and the judiciary has been playing out over the last few years.
Even Chief Justice Maruping Dibotelo admitted during the opening of the legal year that 2015 was a turbulent year for the judiciary, characterized by a litany of litigation against President Khama, The Judicial Service Commission (JSC), The Attorney General and other arms of government. Current LSB Chairman Lawrence Lecha confirmed the Chief Justice’s lamentations when he announced that the LSB will join in the various cases against the judiciary. He also announced that the LSB will challenge the appointment of Jacobus Brand to the CoA.
“The JSC continues to appoint Judges using a system that is being challenged before the courts. It would have been prudent to allow the courts to pronounce on the proper process to follow first,” said Lecha.
The LSB Chairman rubbed government the wrong way when he opined that the constitution of the High Court and CoA were not representative of the gender, race and age demographics of Botswana. Government later condemned Lecha’s statements as inappropriate, insensitive, xenophobic and laced with racial undertones. Government then delivered an ultimatum, demanding an unreserved written public apology, failing which the Ministry will not interact with the LSB in any official capacity. Unperturbed, the LSB dismissed government’s threat to sideline it as “irrational and abuse of authority”.
“Any suggestion that the statement was racial, xenophobic and discriminatory is mischievous and indicative of a serious dearth of knowledge on social issues. The LSB sees no disrespect in mentioning its intention to challenge the appointments of Justice Brand in his presence because the challenge is not about him but against the process of his appointment,” said Lecha.
Justice Ian Kirby, Judge President of the CoA later joined the fray and labeled Lecha’s remarks as “rude” and “disrespectful” during the closing session of the CoA on February 4.
The LSB hit back, saying Justice Kirby’s statement was misplaced as it implied that the LSB’s challenge was based on racial considerations and further explaining that it was questioning the lack of transparency in approaching Justice Brand to sit on the CoA. The LSB also dismissed Justice Kirby’s suggestions that its statement had racist undertones as regrettable and unfortunate.
It further poured water on Justice Kirby’s reported apology to
Justice Brand on behalf of the legal fraternity, saying: “The LSB is not aware in what capacity His Lordship did so. It can however categorically state that the apology was not on behalf of members of the LSB which represents all legal practitioners. The LSB is on record saying that it will not apologize as it did nothing wrong. That position remains unchanged,” said the LSB.
Sunday Standard is informed that unlike other regulatory bodies established by law, the LSB doesn’t enjoy any subventions from government to enable it to run and carry out its regulatory duties. Reports indicate that the LSB’s previous pleas for financial assistance from government have always been rebuffed as it was viewed as a rogue organ that was always hostile to government. As such the LSB has always sustained itself through membership subscriptions and practicing fees. Members of the LSB include all legal practitioners in the country. However, public service lawyers are exempted from applying for practicing certificates and therefore not bound to pay any subscriptions to the LSB. According to Lecha, government lawyers continue to enjoy full membership rights and benefits including voting and standing for office, though they don’t pay subscriptions. The LSB’s efforts to get government to pay for its lawyers have always hit a snag.
The LSB also accuses government of repeatedly sabotaging efforts to amend the Legal Practitioners Act. At the opening of the 2016 legal year, Lecha once again decried government’s seeming reluctance to amend the Legal Practitioners Act.
“This limits the LSB’s capability to fully discharge its mandate,” said Lecha.