The latest research from the Fraser Institute, a reputable Canadian think tank whose findings would often be incorporated into former President Ian Khama’s speeches, shows how legal rights have been declining over the years.
The 2018 edition of the “Economic Freedom of the World Report” shows progressive decline in Botswana’s scores for the area of Legal System and Property Rights. This area focuses on the importance of the legal system as a determinant of economic freedom.
“Many would argue that it is the most important function of government,” says the report, adding that the key ingredients of a legal system consistent with economic freedom are rule of law, security of property rights, an independent and unbiased judiciary, and impartial and effective enforcement of the law.
Two years after Khama took over as president from Festus Mogae (that is in 2010), Botswana’s score on this area was 6.68 but five years later, had declined to 6.11 and further to 5.34 in 2016.Legal System and Property Rights has nine components which indicate how effectively the protective functions of government are performed. In the case of Botswana’s decline, notable among these are Impartial Courts, Judicial Independence and Military Interference in Rule of Law and Politics. In 2005, Botswana scored 6.57, two years later, that score had dropped to 6.32 and the following year dropped further to 5.42. The country’s score for Judicial Independence in 2010 was 7.27, dropped to 6.11 in 2015 and in 2016 was 5.34. Two years after Khama took over, Botswana was still scoring a perfect score (10.00) on Military Interference in Rule of Law and Politics. However, that changed in 2015 when that score dipped to 8.33 and remained unchanged the following year.
The years of 2015 and 2016 were perhaps the most turbulent in Botswana’s judicial history and it comes as no surprise that the country’s scores for those years is as low as it is. In a saga that began in 2015 and ended towards late last year, the legal fraternity locked horns with the executive. First, Khama disregarded a recommendation by the Judicial Services Commission to appoint attorney Omphemetse Motumise as High Court judge. This prompted the Law Society of Botswana to launch a long-running and ultimately successful legal challenge. Then, 12 judges petitioned then Chief Justice Maruping Dibotelo, raising a litany of complaints about his stewardship of the Botswana judiciary. Four of those judges (Dr. Key Dingake, Modiri Letsididi, Mercy Garekwe and Rainer Busang) would be suspended by Khama (who is the appointing authority) for having unlawfully received housing allowance that they were not entitled to. The quartet maintains that the suspension was instigated by Dibotelo to punish them for being party to the petition against him. The judges have dragged Khama to court to challenge their suspension but made an out-of-court settlement. As the saga unfolded, one of the judges withdrew his name from the petition, in the process pledging loyalty to Khama and Dibotelo. Although three other judges were later found to have done the exact same thing under similar circumstances, no action has been taken against them.
These and other developments have put a country once touted as “Africa’s shining example of democracy” under controversial focus. From around the world, institutions that once used described Botswana with superlatives expressed grave concern about what they see as erosion of judicial independence. Among those joining the fray was the International Commission of Jurists (ICJ) which released a press statement condemning the government.
“The ICJ reminds the Botswana authorities of their duty to guarantee the independence, impartiality and accountability of the judiciary under international law, including the African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights, treaties to which Botswana is a party,” the Commission’s said.
