Wednesday, May 27, 2020

The current lights-camera-action episode in the High Court is a throwback to 2007

Like the United States’ highest court, Botswana highest courts don’t allow TV cameras in the courtroom. For that reason, TV cameras are never in court to capture proceedings. The no-cameras rule has been maintained even as Botswana court handle historically important and interesting cases – like the National Petroleum Fund case, the “Butterfly” case and the Isaac Kgosi case. With President Mokgweetsi Masisi having launched a historic anti-corruption crusade and the once mighty having fallen, there is every likelihood that legally, this is the most interesting judicial era to be living in.

Following their loss in the 2019 general election, some Umbrella for Democratic Change activists who had lost in the general election, challenged the results at the High Court. The result was that something that has not happened in 12 full years did – TV cameras have been allowed in court. To give credit where it is due, this followed a court application by Mmegi newspaper. Not to be left behind, Radio Botswana is also broadcasting court proceedings live. Believe it or not but some Batswana have never been inside a courtroom, don’t know the procedures as well as the language of court and are being introduced to all these for the very first time. On another note, the images being relayed via Btv and Facebook livestreaming have impressed upon some the fact that many more Batswana can also use legal lexicon from medieval times. About to wrap up his submissions on last month, attorney Dick Bayford for the UDC petitioners used the Latin term “mutatis mutandis.” While that term might at first sound deceptively like Ancient Rome’s version of “motho ke motho ka batho”, it actually means “due alteration.”

The first and last time TV cameras were allowed inside any courtroom in Botswana was in 2007 when the High Court rendered judgement in the marathon Central Kgalagadi Game Reserve case. Largely on account of interest in the matter that had been excited by a tight-buttocked campaign from a London-based pressure group, international news channels descended on Botswana when a three-judge panel handed down judgement. In addition to Btv, there were TV channels like CNN and BBC broadcasting the reading of the judgement live from Lobatse. UDC leader, Duma Boko, is the only person to have featured in both cases: along a London-based lawyer called Gordon Bennett, Boko represented Bushmen communities that had been forcibly removed from the CKGR. This time around, he is among UDC candidates who claim to have been cheated in the elections. He stood as a candidate for Gaborone Bonnington North.

It may interest some to learn that it was during the reading of CKGR judgement that Boko was introduced to an international audience – not an altogether positive introduction but an introduction all the same. In her own judgement, then Justice Unity Dow and current Minister of International Affairs and Cooperation, accused Boko of having absented himself from court one too many times when he was supposed to be arguing the case in court alongside Bennett. It is unclear when the bad blood between Boko and Dow formed but they would publicly clash more than a decade later, when both were MPs. Speaking on the floor of parliament during Boko’s absence, Dow accused the UDC leader of shirking his responsibilities as a father. Boko took umbrage to such description and took Dow to task from the same platform the following day. Seeking to avoid what would have been an ugly exchange in parliament, Speaker Gladys Kokorwe had both MPs come to her office to resolve the issue. 

To its credit, the US Supreme Court has at least given reasons why it won’t allow cameras inside the courtroom – they would act as a distraction, judges have said. However, no reason has been given by the Botswana courts – whose judges typically don’t interact much with members of the public outside court and whose public relations function is hardly ever pro-active. Interestingly, ordinary people would benefit a great deal from greater exposure to an alien legal tradition. The merits of the election petition case have yet to be argued because the Botswana Democratic Party MPs have raised technical legal points, which is standard courtroom practice. The BDP won at the High Court but the UDC candidates have appealed to the High Court.

Consequently, the Facebook peanut gallery is up in arms, with some making bold assertions that the BDP is acting unethically and cowardly by fixating on technical points. Some are wondering why lawyers have to spend a lot of time parsing a word (“shall”) that they were introduced to at primary school. Last month, when My Lady and the lady lawyer got into protracted back and forth over a petitioner’s locus standi (the right to be heard) at the Gaborone High Court, some of the unwitting spectators attending court would likely have whispered into a neighbour’s ear: Who is Locust Tendai?

If nothing else, TV cameras in court are providing good education to members of the public about a travesty called Roman-Dutch law. No less a person than former president Ian Khama has himself frowned upon the ignorance-of-the-law-is-not-an-offence doctrine. Khama had this to say a few weeks after his inauguration in 2008 when he officiated at a workshop on access to justice: “I am sure you will agree that no one should be subjected to the indignity of losing, for example, their property or reputation simply because they are ignorant of the law, or they cannot afford to pay a lawyer to enforce their right.” On an almost daily basis, this doctrine, which doesn’t exist in customary law, is applied by both the courts and the police in Botswana. It is unclear how Batswana are expected to obey laws from another culture, laws they don’t even know. Speaking at the Botswana Federation of Public Sector Unions’ Democracy and Constitutional Reform Conference at Oasis Motel in 2016, lawyer Joao Salbany said that Botswana’s courts “are not democratic” precisely because they use laws from an alien culture.

If cameras continue to cover the courts past the election petitions case, Roman-Dutch law would itself be put on trial. What people-oriented system of justice would proclaim that it is perfectly legal for employers to fire employees and not have to give a reason? The Court of Appeal – the highest court in the land – handed down such judgement three years ago.

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Sunday Standard May 24 – 30

Digital copy of Sunday Standard issue of May 24 - 30, 2020.