The Law Society of Botswana, itself established by the Section 55 (1) of the Legal Practitioners Act which reads ‘There shall be established a body to be called the Law Society of Botswana…’, has written an open letter to the Honourable Chief Justice of the High Court of the Republic of Botswana Justice Terrence Rannowane titled ‘The Legal Profession’s Concern over the State of our Judiciary’ wherein the Society raises four fundamental concerns. These are (1) The recent Retirement of Justice Mothobi and inconvenience to litigants, (2) The Recently Published Directive on Hearing of Bail Appeals, (3) Inefficiencies that do not seem to be Getting Addressed and (4) Concerns About Independence of Judicial Officers. These are compelling concerns whose failure to addressing them proactively, genuinely and honestly will have far-reaching consequences to the administration of justice in this country. Further to this, the overall judiciary at all its levels will lose credibility and legitimacy in the eyes of the public who consume services from the judiciary. I wish to specifically deal with the fourth concern. In short, the independence of judicial officers amongst others obtains where appointment of judicial officers is largely beyond reproach in terms of no loud voices raised in those appointments particularly by relevant stakeholders such as the Society. The judiciary must not only be seen as impartial but that such impartiality must be so demonstrated.
For starters, the Society is on record particularly during its speeches at the official opening of the legal year over the years and generally at other fora on matters affecting the judiciary and other attendant issues. It has talked sharply about forum shopping, the seemingly unfair process of appointing judges, the veil of secrecy in which Court of Appeal judges are appointed. Most recently, the Society has called upon the Director of the Directorate of Public Prosecutions Advocate Stephen Tiroyakgosi to resign his position following a number of ‘school boy errors’ in dealing in particular with the P 100 billion case and generally other highly political cases involving high profile members of the society. The list is endless. Two Lady Lordships were recently appointed to the judicial offices of Justice of the Court of Appeal and Judge President of the same court respectively. It has since become a fact that these Lady Lordships were appointed to these positions largely as a result of appointing women to key judicial positions as confirmed by the President in his last week’s State of the Nation Address. I am incompetent to pass judgement as to whether these Lady Lordships are fit and proper to occupy the positions they have been appointed to. I do not intend to disparage them in any form or shape. What is worrying however, is the manner and process in which those appointments were made and effected.
The question that should be answered by the appointing authority is what yardstick if any, was used to measure them and whether there were no others who could potentially compete for these positions? My belief is that there are other Lady Lordships let alone other male judges in the judiciary who given a chance, would have thrown their names in the hat to be considered. In the circumstances, it stands to reason the appointed Lady Lordships were appointed as ‘favourites’ more than anything else of the appointing authority. By any stretch of the imagination, appointments perceived to be skewed towards favoured individuals even if they are competently capacitated to exercise the obligations of their offices, will be viewed negatively within the judiciary and elsewhere. The unavoidable consequence is that peace, harmony and collegiality in the judiciary will be significantly be threatened. Further to this, the issue of the independence of judicial officers appointed in the manner described above would inevitably come into sharp focus here and elsewhere hence the Society’s concerns.
At paragraphs 4.8 and 4.9 respectively of the open letter to the Chief Justice, the Society remarks that ‘Unless the process of appointment of judges becomes more transparent and political acceptability ceases to be the main criteria for appointment to judicial office in the country, confidence in the judiciary will continue to wane’. (My underlining for emphasis) ‘….The Constitution does not prohibit transparency in the appointment of judges, it follows that there is nothing that stands in the way of the JSC opening up its interview process. Transparency will aid in the identification of judges with; integrity, the right work ethic; fidelity to the Constitution; sense of fairness and an acceptable level of knowledge of the law’. In neighbouring South Africa for example, an open process is underway or should I say it is at the tail end of the appointment process of that country’s Chief Justice where members of the public and organisations had a say in one respect or the other in the process. Objections and approvals with respect to nominates candidates were lodged. Those who know say the President of South Africa could have in terms of Section 174 (3) of the Constitution on the appointment of the Chief Justice and the Deputy that ‘The President as head of the executive, after consulting the Judicial Service Commission and leaders of parties represented in the National Assembly, appoints the Chief Justice’ just followed the provisions of the said Section and appointed the Chief Justice. But in the spirit of transparency and fairness, a process that is not strictly provided for was put in motion. It is in this context I want to believe, that the Society says ‘The Constitution does not prohibit transparency in the appointment of judges….’ in this county.
The transparent appointment of judges erases perceptions, real or imagined, of ‘political acceptability’ wherein judges appointed outside the principle of transparency and fairness would be viewed to have been appointed to have one eye on the law and the other on ‘political acceptability.’ Let’s face it: our courts will always as a matter of course, be called upon to adjudicate over highly political cases involving high profile political personalities. As the final arbiter in such cases, Justices of the Court of Appeal will have to be manned by men and women who adjudicate even the politically charged cases only on the basis of facts and the law. When political acceptability is a consideration, facts and the law become inconsequential. The rest will be history.
It was more convincing at the time of independence to say other arms of government were independent of each other particularly with respect to the executive. Anybody who still attempts to run with the independence-era thinking is not only mischievous but taking people for granted. Batswana are now more enlightened to read between the lines where they can no longer be misled by the powers that be.
It is my considered view that the Society as an institution constituted by men and women versed in matters of law, and that it has an inherent duty to support the administration justice, are raising pertinent issues with regards to the state of the judiciary in this country. If there were no such pertinent issues of concerns as raised in the open letter to the Honourable Chief Justice, the Society would not have raised them in the first place. They say there is no smoke without fire. It is in the interests of the judiciary and the society at large that the Honourable Chief Justice responds to the Society’s concerns as a matter of urgency given the weight of their concerns. The urgency of the concerns is borne out of the fact that the judiciary is the last line of defence to democracy and other rights as enshrined in the Constitution and therefore, all measures humanly possible must be taken to safeguard this last line of defence. Without it, it will be a doom and gloom. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe’. Let us all continue to adhere to all Covid-19 health and safety measures. It is our civic duty to do so.
