The outcome of the Central Kalahari Game Reserve case at the High Court in Lobatse on Wednesday goes a long way to consolidate Botswana’s position as a working democracy, with an independent judiciary that operates unencumbered by the perils and expediencies of the executive.
That does not happen in many African countries, including in the SADC region.
Memories are still fresh in our minds of how judges have, in the recent past, fled countries such as Zimbabwe and Swaziland simply because they dared to exercise and exert their judicial independence and ruled in favour of citizens against the government.
Such judges were later forced to leave simply because the agents of the states harassed them.
That does not happen in Botswana.
More than act as proof that Botswana is a working democracy, the judgement which was awarded in favour of Basarwa also went a step further to consolidate public confidence in our judiciary that no matter how sensitive the issue at hand, the judiciary would not hesitate, not for a second, to take side with individuals against the state if that is the interpretation of law.
For that, we salute the men and women that make up our judiciary.
The stakes were high in this case.
Government had staked not only its resources in the form of money and other investments but reputation.
But credit must also go to our government who, in the country’s traditions of respecting the rule of law, has since announced that they welcome the judgement.
Like anybody else, the state is entitled to appeal if they so wish.
But what is important is that such an appeal be done within the confines of law and procedure.
There is nothing to suggest that our government is about to violate those laid down rules. And for that we applaud and salute them.
The independence of the judiciary and respect for individual rights are inextricably intertwined to the ethos of a working democracy.
We cannot have one at the exclusion of the other.
It is, therefore, reassuring that unlike in many other African countries, the Botswana High Court has not allowed itself to become an extension or, put more bluntly, allowed itself to be instruments of the executive.
Our courts have stayed above political expediencies.
We, therefore, encourage and implore Batswana that where they believe they have cause to criticize the courts, as they are entitled to do, they should do so within the confines of the law.
We advise that in instances where individuals felt the judgments had to be subjected to scrutiny and criticism; such criticism should be more informed, done in good faith and, more importantly,
conducted in a courteous and scholarly way so as to ensure that the integrity and bona fides of the judges are themselves not maligned. Any form of criticism should bear in mind that, like any other institution, the judiciary is not perfect.
In the meantime, we draw solace from the fact that our courts are themselves awake to the dynamics of our society; especially the simple but pertinent fact that as a society we are made up of communities of individuals who are not equal, hence we cannot be treated equally in a straight jacket manner.
Justice Unity Dow could not have put it any better when she said treating equally people who are themselves not equal could in a way amount to discrimination.
We can’t agree with her more.
Once again, we want to underline the fact that an independent judiciary occupies a very important position in any democratic dispensation.
Therefore, all effort should be made to ensure that the judiciary is protected so that it is not undermined by forces of evil who deliberately or ignorantly cast aspersions on it.
It is only when that happens that the judiciary shall continue to enjoy unqualified confidence and trust from all those who come and or look up to its arbitration.
Discharging judicial functions is a heavy responsibility. To be able to discharge such duties more effectively, there is no doubt that our judges need both the confidence and trust of the community they serve.