Sunday, September 20, 2020

Meddling with the judiciary puts our democratic foundations at risk

Early indications are that the judiciary, that last bulwark that stands between us and tyranny, is now under threat.

If its custodians do not exert and assert its independence, it too will fall victim to the same abyss that has swallowed up the legislature and the media.

It’s an ugly and scary prospect, but the thin line that separates the executive from the other branches is fast fading away. Everybody is now expected to sing from the same hymn book and march to the same drumbeat, if only to demonstrate discipline and patriotism.
Allowing the judiciary to become yet another lapdog of the executive can only bring grave consequences.

When that happens, not only will the judiciary lose its independence and impartiality, in the long term, and inhere lies the greatest danger of all, the people will simply lose faith in it.
The loss of integrity and credibility is the easier part. Restoring those attributes is next to impossible.

This is why we may allow our political busybodies to emasculate everybody else, but not the judiciary!

In a strictest sense, the onus of protecting the integrity of the judiciary, including from the jaws of an excessively powerful executive, rests with the Judicial Service Commission.
But is the JSC living up to its mandate? May be that is a debate best left to those trained in law.
It’s not enough to say the JSC is made up of capable and independent men and women as the Master of the High Court likes to say.

The independence of the JSC should not only be stated on paper, it must be demonstrated in real life.

Coming to think of it, there is a legal adage which says justice must not only be done, it must be seen to be done, or something to that effect.
It would be hoping against hope to say that so far this important body of the judicial system is measuring up.

If anything, they are actively facilitating and expediting the takeover of the judiciary by the executive.

Take for example their conspicuous silence last year when President Ian Khama crudely refused to appoint as judges the three names that had been suggested by the JSC.
To use yet another legal adage, that was a bad precedent!
It’s futile criticising Khama for a control freak that he is.
It’s his nature. He wants to control and micromanage anything and everything that moves under the sun.

The danger lies with the JSC allowing him so much space as to meddle with an institution that best serves the nation when it exists as a distinct and separate entity from the presidency.
Allowing the President such a direct say in the appointment of the judiciary, as it effectively started as of last year, amounts to politicizing a sacred institution that should, by its very nature, be detached from politics.

The authority of the judiciary should be respected, whatever it takes.
As a Republic, we are going through a difficult phase where uncertainty reigns.
When things are so bad, the only doses of sanity we can expect are from the judiciary.
Khama’s cheerleaders would rather they had him directly appoint the judges.
They see nothing wrong with that.

What’s the fuss all about, they like to quip in unison!
In fact, they relish calling Khama the appointing authority, a title he accepts with astounding glee.

An executive minded president, with an interventionist leadership style, that kind of goading, even as it comes from unthinking admirers only serves to stir up an already high appetite for control.
That kind of goading blinds him to the pitfalls inherent in every situation where politicians interfere with the judiciary.

The truth of the matter though is that politics and the judiciary are two different things that should at all times be kept separate.
Politics is about expediency. The judiciary is about law and principle. It is about integrity and fairness.

Thus under no circumstances should the judges be made to appear like they are handmaidens of any politician, however revered that politician may be.

The judiciary is able to do their job diligently, without fear or favour, because judges are trusted by all of us, including those of us who have not received any training in law. Immediately they are perceived as indebted to politicians, public trust flies out through the window.
The independence of the judiciary should never be taken for granted.

Perhaps here we should pause and mention that the frequency with which some of the country’s most celebrated judges have been resigning under unexplained circumstances has not gone unnoticed.
It is demeaning to say the Judicial Services Commission only advises the President and that the President can disregard such advice if it is not in line with his political motives, as it happened last year.

The JSC should be the custodians of our legal system.
In every sense they are the true guardians of the independence of the judiciary.
Hence it was all the more painful when we heard no word of protest from them when the president rejected their choice of who qualified to be High Court judges.
In case the JSC is not aware of it, the judiciary is the only thing that stands between us and dictatorship.

Remove that bulwark, and we become a true autocracy with all the terrors that it entails.
By failing to speak out, the JSC is guilty of complicity in the ongoing political maneuvers to manipulate the judiciary.

It cannot be true, neither can it be plausible, that by allowing themselves to act as a politician’s mascots, the JSC members are doing a favour to the sanctity of both the law and the judiciary.

There is another urgent angle of reform which the JSC should consider if they are to remain relevant.

In other countries the hearings where potential judges are interviewed are conducted in public.
In Botswana the JSC continues to hold its hearings in private.
May be there is a reason for it, but that lack of transparency allows too much room for abuse, not least by politicians who want to be everybody’s masters.

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Sunday Standard September 20 – 26

Digital copy of Sunday Standard issue of September 20 - 26, 2020.