Retired Judge of the High Court Abednego Tafa has broken his silence about suspicions of judicial appointments “based on favouritism ahead of merit” and allocation of “politically sensitive case (s).”
The Law Society of Botswana (LSB) recently issued a strongly worded statement rebuking Chief Justice Terrence Rannowane for bringing the judiciary into disrepute.
In a wide-ranging interview, Tafa also opened up about the issue of forum shopping which keeps on cropping up every time Botswana’s judiciary lurches through a comedy of errors.
Forum shopping is a process by which a plaintiff chooses among two or more courts that have the power — technically, the correct jurisdiction and venue — to consider the plaintiff’s case
There are calls to restore the integrity and reputation of the judicial system.
However, the former judge remained tight-lipped about the current state of the judiciary. Upon being asked to comment on observations that in recent months the independence of judges and the judiciary is under threat and the public is losing confidence in the system, Tafa said: “I don’t want to speak as if I subscribe to that view…”
He said as part of the leadership of the judiciary, “I should have protested, professionally it would be improper to comment on certain things, that is why I’m a bit cagey.”
Tafa noted: “As the former High Court President I was the Chief Justice’s right-hand man.”
“To be honest I don’t want to comment on what is happening at the moment. I was part of it,” he added. Pressed further Tafa said: “Let’s accept it, As the judge President, I was the next person after the chief justice. so, if there was any mess… collective responsibility should be such that I also stand to be blamed or there is a mess I should have commented…”
But Tafa shared his views on interference in the independence of the judiciary “I’m one of those people who would tell you that at no stage throughout the 17 years that I was at the bench, I didn’t get any instructions, direct or indirect from anybody whether a politician or my senior including the Chief Justice on how to deal with any particular matter.”
He added that: “I enjoyed it because I had that freedom.”
Asked further if he did not experience any interference in the execution of his judicial duties, Tafa said: “No not even subtle pressures, I didn’t. I was fortunate in that regard because now I hear there are allegations…”
He added: “But to be honest with you, I have never had anybody trying to interfere with my independence as a judge.”
When being reminded that there are allegations that Botswana’s judiciary system is currently engulfed in crisis, Tafa said; “I would take them as allegations and if they are true, it would be very unfortunate because the judiciary is the last place to resolve any grievance whether you are a politician a judge or anybody you end up being at the judiciary and you expect that you will have a fair trial.”
The retired judge said, “So it would be very unfortunate if the allegations turn out to be true. Very unfortunate and something then needs to be done to make sure that we keep our judiciary as independence as possible.”
Upon being asked if as a senior judge, he had learnt about allegations of interference in the independence of the judiciary in the past, Tafa said, “I don’t remember hearing those allegations for the past 17 years that I have been a judge.”
“Like I said on my side, nothing of that sort ever happened. I just hear the allegations now and from the newspapers,” he said.
Asked to comment on forum shopping, Tafa said the issue should not arise at all “because these days we use computers.”
“To be honest with you, there shouldn’t be any issues regarding forum shopping. This is because allocation of cases is done by machines,” he said.
He added: “There will be one person that has been picked by the machine The machine can tell if a case has been taken by another judge. It shouldn’t be there (forum shopping). That doesn’t mean that I subscribe to it.”
The retired judge also noted: “We should also define forum shopping, there is suggestion that when the chief justice empanels a panel for a case that requires three judges to hear, he should not pick judges…”
According to Tafa, there are advantages disadvantages of forum shopping. “As the chief justice, you should know the strength and weaknesses of your colleagues. If it is a tax matter, you know who can deal with tax matters. If it is a matter that requires knowledge of computers, the chief justice shouldn’t pick some people.”
Tafa revealed that the constitution gives the chief justice the right to empanel and it doesn’t not say how he should do it.
“It is there in the law. But registering a case and then say I want my case to be heard by Justice Tafa…We don’t know why someone picks judge Tafa, that one I condemn it and should not be allowed,” he said.
Asked if he is likely to address the court on behalf of any client, Tafa said: “I don’t think it would be proper for me to appear before a magistrate because I was senior and then quote a case and then said Judge Tafa decided it this way… I would be intimidating the Magistrate.” But Tafa said he could still appear before the court of appeal because “they were my seniors” adding that, “I might be tempted once but still I won’t be comfortable.”
He explained that there is nothing in the constitution barring a former judge appearing before the court. “What I’m going to be doing is consultancy; assisting lawyers who want a legal opinion, an individual can call me and then I recommend a lawyer for him or her,” he said.
