After an eight year stint on the bench, outgoing Justice Moses Chinhengo’s parting shot is a call for reform in the appointment of judges. The Zimbabwe national joins the chorus of pleas for more transparency and less controversy in the process.
Botswana’s Constitution provides for the appointment of judges by the president on advice of the Judicial Service Commission. However, President Ian Khama has on occasion rejected lawyers who had been recommended for appointment to the bench by the Judicial Service Commission, thereby sparking a heated debate on the issue.
“The process of appointment of judges must always be transparent in order to maintain faith in the judiciary and its independence. Judicial independence is not for the judge alone or for the benefit of the judge. It is the right of the people because the Constitution provides that you have the right to your case being decided by an independent and impartial court. The transparency in the appointment process enhances the public perception of their judiciary as independent and impartial,” said Justice Chinhengo.
He said the appointment of judges must be legal and procedural as the Constitution, being the supreme law, has to be followed to the letter.
The judge also called for the establishment of a Law Reform Commission to guide the implementation of the many recommendations made by the courts aimed at modifying the country’s laws. He said he would have been happier if some of┬áthe recommendations he had raised at judicial conferences┬áhad been┬áadopted.┬áAn example is a recommendation that accused persons in criminal┬ámatters should be required to file a defence outline. This, he insists, would save a lot of time in criminal matters.
Also, he expressed worry that civil cases in Francistown did not carry as much scope and depth as in Lobatse, which services the capital, Gaborone. “The more involved cases of civil nature are filed in Lobatse,” he said.
Perhaps a more pressing concern for him was the issue of cases that are not included in the country’s law reports, despite judges ranking them as important. His observation was that the Law Reporting Committee was not reading all the judgments.
Another area that concerned him was the conditions of service for the judges which he believes improving. Given that the bench is becoming increasingly younger, judges need to be better paid.
“The younger judges want to live comfortably,” says Chinhengo. “They are not able to engage┬áin other income generating activities and as such their remuneration has to be competitive.”
Asked to comment on the touching and vexing cases he had presided over, he responded that to a judge there is no small or big case. All cases are treated seriously.
“Every case is complex. You can preside over a big case with huge public interest but without big legal issues. A case of murder attracts a lot of public interest especially if it has reviled a certain community or if the crime was committed in a gruesome way. For the judge, the case is decided on the facts and there is nothing complex about that.”
For example, he presided over a small case that attracted a lot of attention although his judgment was only three pages. The case was an insurance issue involving subrogation. “It raised a lot of interest outside Botswana. It involved a big legal point,” said Chinhengo, adding that a judge listens to the evidence and decides every case on its merits.
Asked for his views on the death penalty, Chinhengo said a judge must not express his personal views on any legal matter because if he does, he is liable to be misunderstood when he makes a decision.
“Let’s suppose I came out publicly against or in support of the death penalty and a case is brought before me and I do not pass the death sentence. The public will say it is because I am against the death penalty. In the latter case the public may think the case is not deserving of the death penalty and yet I have imposed that penalty. A judge must not express his personal views about the law or legal position outside the court.”
While reluctant to state his views on the death penalty Chinhengo nonetheless said intellectually one may say the death penalty cannot be justified. Yet a judge could preside over a case where the death penalty appears justifiable.
“What I do not believe though is that it serves as an effective deterrent against the commission of the offence of murder as it may be thought to be,” he said adding that judges rarely pronounce the death penalty unless it is completely warranted.
He added that┬ájudges┬áhave to perform their sworn duty of upholding the law. This is despite the agony that the process of arriving at death sentence may create. “If there are no extenuating circumstances, the imposition of the death penalty is mandatory. Three times I had to pronounce the death penalty in my eight year tenure as a judge in Botswana. One was confirmed by the Court of Appeal while the other was set aside and an appropriate sentence imposed. The other is still yet to be heard by the appeals court.”
How does it feel when his judgment is overturned by the Court of Appeal? Chinhengo said he felt nothing because as a judge, he makes a decision alone while at the level of appeal there is a minimum of three judges extending to seven judges in big constitutional matters.
He said all the judges look forward to reading the judgments of the appeals court because it does not set aside decisions of the lower courts for capricious reasons. He has always found the reasoning of the appeals court sound and illuminating. “I have always looked forward to receiving their judgments to see what the more experienced judges┬ámake of my judgments. I like lawyers taking matters on appeal because it helps to develop the law.”
While he may have had his fair share of frustrations as a judge, Chinhengo was quick to point out that there were also exciting moments during his tenure in Botswana. One of them is the annual judicial conference, even though he felt the range of subjects discussed could use improving. “The conference is an opportunity for the judiciary to reflect on its performance and plan how to serve the ends of justice efficiently,” he said.
The other occasion that he cherished was when he attended the first world conference on Constitutional Justice in Cape Town in the company of former Chief Justice Julian Nganunu. It was the first conference of the constitutional courts of all the jurisdictions of the world. He said he also enjoyed working with retired judge Justice John Mosojane whom he described as an able judge, a good man and leader. In fact, there is not a single judge who Chinhengo holds a gripe against at both the Francistown and Lobatse High Courts.
The other thing that kept him ticking were the numerous discussions on legal issues with other judges especially Justices Key Dingake, Michael Leburu, Lot Moroka, Singh Walia, Stephen Gaongalelwe, Isaac Lesetedi and his other colleagues in Francistown especially the head of the court Justice Mpaphi Phumaphi and the Registrar Gee Ketlogetswe who is succeeding him.
“I think a judge needs to sound out others on the law. The law is not about knowing it, but rather where to find it. A good lawyer is not necessarily one who knows the law but one who knows where to find it. I am one of those who believe that one benefits from the experiences of other judges.
“In many of the legal issues that faced me over the years, I often discussed with other judges. I have worked with wonderful men and women in Botswana,” said Chinhengo.
On the development of the country’s jurisprudence he said it is developing like other jurisdictions adding that the law always changes with the time.
“The only thing that could lead to a better development of the jurisprudence is what has now been started ÔÇô the localization of the Court of Appeal. It has a good head in Justice Ian Kirby who is a good jurist. I only wish Botswana would find the necessary resources to ensure that there is a fully fledged and permanent Court of Appeal with all the time to deal with all the appeal matters expeditiously.”
He observed that it was a bit strenuous for the Court of Appeal to sit over a month and hand down judgments unlike when it is permanent.┬á┬áA permanent Court of Appeal will have more time to deal with the matters and that┬áwill be┬ágood for the development of the┬ácountry’s jurisprudence.
Justice Chinhengo was involved in the implementation of the Judicial Case Management which was initiated by the former Chief Justice Nganunu in 2008 under the supervision of the current Chief Justice Maruping Dibotelo.
He said the judicial case management system is a good system that enhances the accountability of judges as one only needs to go into the computer to assess what a particular judge has been doing. The system also ensures that cases are not routinely and unnecessarily postponed.
