Tuesday, December 7, 2021

Law Society, not the Judiciary is now the bulwark of our democracy

Botswana is fast becoming a victim of own success.

Institutions that used to be star pupils are now becoming living shadows of its themselves.

The judiciary is one such.

What is currently happening to the judiciary is truly lamentable.

The suspension of a group of judges a few years ago was the judiciary’s lowest point.

Chief Justice Terrence Rannowane has a huge task to prove skeptics wrong.

Uneasy lies the head that wears a crown.

Never high to start with, public faith on the judiciary is now at its lowest.

The Chief Justice needs to restore that faith.

There is no shortage of motivation to get the judiciary back on track.

Cracks started to be visible just after the General Elections in 2019.

Expectation was that the judiciary would provide direction to the litigants but also to the nation that was gobsmacked by the allegations.

Everybody wanted the courts to go to the bottom of the whole question, so that it was never to be raised again.

That was never to be.

Instead the judges became activists by and large, opting for technicalities instead of merits thus denying the country a big opportunity to benefit from a wealth of jurisprudence.

The result was general lack of direction from the bench and a further deepening of doubt among the public.

One does not need to be a cynic or a disbeliever to see what is really playing out.

After those court cases, for the judiciary it was a race to the bottom.

Botswana’s judiciary is in the mire.

In fact it is slowly sliding into a crisis mode.

The public is a worried but arms-length spectator.

They have their own suspicions, but they have chosen to keep them close to their chests.

There is a deep sense of disorder about the whole thing.

This much was confirmed recently when the Law Society of Botswana entered the fray and registered their concerns surrounding perceptions of the judiciary turning itself into a political referee.

That is true, but the public suspicions go way beyond the rules of the courts.

Lawyers are often known to join popular struggles on the side of the people.

And the Law Society of Botswana is not unique in that regard.

We applaud the Law Society of Botswana for filling a void left by the judiciary.

The Law Society of Botswana has claimed a moral high ground in defence not only of justice and the judicial system, but of Botswana’s democracy itself.

The judiciary is often the last bulwark in defence of democracy.

It is the judiciary that often steps in to stem the excesses of the executive.

Clearly and rightly so, the Law Society of Botswana takes issue with the law being used for social and political control, which is the goal of a dark alliance being forged by representatives of the executive and some of those on the bench.

At issue here really is corruption, and with that the use of judiciary to whitewash the same.

The Law Society should be more aggressive in its defence of the ordinary people and also the independence of the judiciary.

The issue for the judiciary is not so much administration – even though one has to be really pushed hard to believe it too does not require reform.

Rather what is wrong is the very essence of what the judiciary should ordinarily stand for.

For ordinary citizens, what is happening at the bench is yet another clear cut case of human frailty collapsing under strictures of integrity and credibility.

What needs to happen is a big restructuring. Others would further say we need transformation of the judiciary – implying that the change, for it to be effective,  has to leave the current state totally unrecognizable.

We wholly subscribe to that.

But we also are awake of the fact that given the prevailing climate and the underlying thinking, there is no appetite for such a transformation within the administration.

The current overarching lodestone is to defeat Ian Khama and his surrogates or at best keep them at bay – by hook or crook.

Anything that stands on the way becomes collateral damage.

The transformation we have in minds has to start with how judges are appointed.

Does the current set up really give space for justice to happen?

The current mechanism for appointment of judges and indeed the promotion of the same only serves to further alienate a majority of our people while caricaturing itself, risking in the end to even discredit those appointed or promoted in the eyes of peers and colleagues.

At the moment too much sway and power are given to the executive – who are happy to be seen to be making decisions.

For the public, there are worrying perceptions of meddling on the judiciary from some government quarters, which meddling is actively facilitated and indeed approved by some judges themselves.

The requisite detachment between the judiciary and executive no longer exist today.

This is why we approve the courage shown by Law Society to draw our attention to the red flags.

All this meddling can very easily be traced to the ongoing fight between the former president Ian Khama and his successor, president Mokgweetsi Masisi.

Each side wants to be sure it has placemen inside the judiciary.

If he wants, the Chief Justice still has the power to stop this decay.

For members of the public danger has been complacency.

What is happening to the judiciary is a reason why in a democracy we should never lose guard and why we must never stop to question.

What is happening to the judiciary is an example of a state eager to control everything under the sun.

The state is forever eager to fuse every realm of society under its direct orbit and control.

The state never wants to be questioned. It never embraces accountability.

The state feels insecure in the company of its own citizens.

There has also been a public assumption that all people appointed to the judiciary are inherently morally upright people.

Nothing is farther from the truth.

The fact that current appointment system of judges has consistently failed to pick personality defects is particularly worrying.

Also worrying is the fact that the process actively seeks to alienate the public from itself.

In South Africa a president who has a right to appoint a Chief Justice on his own, recently invited the public to the process.

That was not only humbling but breathtaking – pleasantly surprising.

It is a welcome case of applying power  generously.

What is needed is to redeem the judiciary because this is one institution that is too important to fail.

It is easy to trace the demise of the judiciary to a spike in politically motivated investigations and cases.

This has allowed for vested interests to target some judges.

But there is much more than that. And the Law Society has a lot in its hands to deal with.

RELATED STORIES

Read this week's paper