There is mounting pressure on members of the judiciary to declare their interests even on a voluntary, self-regulatory basis before a proper statute can be enacted by Parliament.
Some members of the judiciary, including judges, are known to be heavily involved in business, including construction, property development and real estate.
In an academic paper destined to be published in a law journal, one of the High Court Judges, Michael Mothobi, has laid bare into the public arena a topic that has been under discussion behind closed doors among leading minds of Botswana’s judiciary, but which has astutely been kept away from the public.
In his paper, Justice Mothobi argues that there is public doubt in some quarters on the capacity and, indeed, willingness of the judiciary to uphold the constitution.
He, however, adds that nothing tangible has been brought to the fore by those doubting the judiciary.
Justice Mothobi also avers that it is generally accepted that the interests of those individuals who find themselves within the judges’ immediate sphere of influence must also be registered to avoid instances where judges may hide various incomes and assets or bribes received under their relatives’ names.
He says if civil servants are required to disclose their interests, there is nothing wrong with members of the judiciary doing it even on account of voluntary basis.
“Although we do not mean to say Botswana has become corrupt, it is beyond doubt and rather unfortunate that the opportunities for corruption are more prevalent in today’s society and must be limited by the creation of more legislation. To this end, interest disclosure must be viewed as only a small part of the whole anti-corruption initiative.”
The judge goes on to say in his paper that the disclosure of personal interest must be given priority if the impartiality and independence of the judiciary is to have any credibility in the public eye.
“Clarity, transparency and consistency are important for any office that takes up the mantle of registrar of interests, not only for public confidence but, perhaps more importantly for the judicial officers themselves ÔÇô and the public service as a whole ÔÇô to have any kind of confidence in the interest declaration mechanism. Any concerns about invasion of privacy and the potential misuse of sensitive information can only be laid to rest with effective investigative and sanctioning apparatus. Indeed the effectiveness of the whole enterprise is largely dependent upon the enforcing of any breach in protocol,” says Mothobi in his paper.
It would be interesting to note that Justice Mothobi’s intervention comes at a time when there is growing public disquiet over the quality of the judiciary.
While lawyers say some of the judges do not meet the mark, judges on their part accuse lawyers of coming to the court unprepared.
But it is the potential and prospective conflict of interest among those on the bench that will be most interesting to see how to tackle, especially with some internal voices now calling for action to be taken to induce credibility.
In recent times, some immediate family members of a few judges, including spouses, have been involved in eyebrow-raising activities that have left members of the public wondering the extent to which the judges would themselves have known or even participated in their spouses’ shenanigans.
“Having examined the feasibility of enacting judicial asset disclosure in Botswana, we are heartened by the fact that there is already a legislation in the pipelines that will achieve the same end as far as Members of Parliament are concerned, but find ourselves discouraged at how long the process is taking.”
He then goes on to come with recommendations of fast-tracking the process of disclosure by, among other things, setting up a “standing committee” that will comprise of two High Court Judges and a judge of the Industrial Court.
“The Registrar of Judges’ interests will also act as Secretary for our proposed Committee.”
All recommended are a template form on which will be filled the interests and liabilities.
“Any declarations made to the Register must be understood to be taken under oath, thus discouraging any would-be dissenters and empowering the Standing Committee with constitutional powers to act accordingly.”