Thursday, October 5, 2023

Localising COA still appears a bridge too far with recent appointments thereto

The Judicial Service Commission (JSC) released a press release through which it was announcing three appointments to the Court of Appeal (COA). These are Justices Johan Froneman and Bess Nkabinde from South Africa on one hand and the outgoing Judge President of Botswana’s Industrial Court Justice Goemekgabo Loeto Tebogo-Maruping on the other. On their cumulative impressive CVs as stated in the said press release, there is no doubt in my mind that they bring a wealth of experience to our jurisprudence with Justice Froneman having served in the Supreme Court of  Appeal of South Africa and Justice Nkabinde at the South African apex court, the Constitutional Court. Two issues stood out for me in these appointments.

First is the now normal modus operandi of the secretive manner through which appointments to the COA are made by the JSC and secondly, the appointment of Justices Froneman and Maruping to the said court with the same strong background in labour matters. The secretive manner of appointing COA judges emanates from the fact that unlike for the High Court judges where there is a semblance though contested, of processes like applications being routed and processed consequent to advertisements in the media. For COA appointments, they just fall from the sky for those who are at the right place and at the right place to grab and run away. It’s a smash and grab kind of a game.    

Botswana will be celebrating 56 years of independence this week and when I read the JSC press release, I could not stop but to wonder if we have not yet produced enough local jurists to be appointed to COA. I am alive to the fact and reality that Botswana is not an island where external expertise and whatever it could be, is not undesirable. I am also verily aware that our very own Justice Professor Key Dingake is serving in the Supreme and National Courts of Papua New Guinea while Justice Sanji Monageng served in the high courts of the Gambia and Eswatini respectively before proceeding to serve at the International Criminal Court at the Hague.  It should be asked why Justices Dingake and Monageng were not appointed to the COA firstly as our very own and secondly the fact that other jurisdictions found them fit and proper to be appointed to their very own. The answer in my view should lie squarely at the doorstep of the JSC. But who constitutes it?  99.9 % of the JSC are political appointees who may very well have towed the line of their appointing authority in ignoring for whatever reason the appointment of the home grown talent and expertise.     

That said, it neither precludes Botswana from populating the COA with Batswana for obvious reasons nor does it amount to any xenophobic tendencies as could be suggested. The elephant in the room that has beset the appointment of COA justices still continues unabated. As it has become the norm for the JSC to appoint COA justices under a cloud of secrecy and if I may dare to say such coupled with underhandedness of some sorts as already stated, it is not known from where I stand why and how the three appointees were approached for appointment. Were they headhunted? Were they the only individuals who could be appointed?

While I do not blame the South African judges for the ‘silver platter’ on which they received their appointments, they know that in their country, the process through which judges are subjected to is over and above everything else, rigorous and transparent. Every applicant who would have been short listed is publicly interviewed by individuals from almost all spheres of the South African population. I have personally watched the television interview of the immediate past Chief Justice Mogoeng Mogoeng and that of the recently appointed, Justice Ray Zondo. I have also watched that of the recently appointed Deputy Chief Justice Mandisa Maya. By all accounts, it should be accepted there was no perceived or real underhandedness of sorts in these interviews for the simple reason that members of the JSC in that country are not directly appointed by the President.

I want to believe Justices Froneman and Nkabinde believe in the transparent manner of interviewing judge applicants.  If that is so, why would the South African judges agree to be appointed through a process so secretive? Are they comfortable in their consciences to say: why should we accept an appointment so fraught with secrecy? Would we have been allowed to accept similar appointments in our native South Africa under similar circumstances? Let me harp on the point that Botswana process of appointing COA judges is not out of their making and so the blame should not be placed at their doorstep. They are the recipients of a very generous process.

When the appointing authority for judges the President pronounced on his roadmap of the Reset Agenda whose one of its pillars is the Mind Set change, I had hoped Batswana would witness a general change in departure from how matters of national interest have been processed. One such Mind Set would be a change in the process of how COA judges are appointed. While I do not have qualms with the Mind Set Change of the Reset Agenda, I do so on the ground that the President is comfortable and eager to sell the principle to Batswana when he himself is dismally failing to walk the talk. If the President is not honouring and demonstrably showing that he means what he says, how does he expect Batswana from all walks of life to embrace the Mind Set Change of his Reset Agenda?

They say charity begins at home.  Batswana do not have any hand in changing the manner in which judges are appointed let alone the procedural and substantive processes to that effect. This is the duty of the President to ensure there is Mind Set Change in the appointment of judicial officers particularly those to the COA. At the level of appointment to the High Court, we always see adverts in the newspapers through which would-be judges apply. While this process (appointment of high court judges) has been manifestly criticised in particular by none other than the Law Society of Botswana and generally the citizenry for obvious reasons, the President has been tone-deaf to this criticism put mildly. And this tone-deafness is amply demonstrated in the continued appointment of COA justices.

With the President demonstrably unwilling to reform the appointment processes of high court judges in general and that of COA justices in particular, serious misgivings will continue to be levelled against the judiciary with labels like executive-mindedness and the capture of the judiciary firmly entrenched. It will strengthen the view by some that elevation to the COA is not on merit but for some other considerations. Whereas these labels cannot be completely eradicated in a vibrant society, openness in the appointments will go a long way in instilling public confidence in the judiciary. The end result of the opaque nature of appointments is that localising the COA bench will forever remain a pipe dream and more crucially, a bridge too far for the local legal practitioners who may aspire to one day sit as justices of the COA. It goes against the letter and spirit of the Mind Set Change of the Reset Agenda.

Sourcing judicial expertise from outside our borders is not in and of itself a bad thing because we are part of the global village. But it should not come with unintended consequences where the home grown talent is put at abeyance in favour of outside talent. If we can take a conscious decision to protect our horticultural produce by prohibiting some from outside, what stops us from doing the same in judgeship at the COA by simply placing a moratorium of sorts in the name of saving Brand Botswana? If there was a will, there would be a way.  I am prepared to be persuaded otherwise as always. Judge for Yourself!

‘No one is safe until everyone is safe. We are not out of the woods as yet with respect to Covid-19 pandemic. Let us continue to adhere to all Covid-19 protocols.

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