We believe in this nation and the dreams of our forefathers and foremothers. We believe in the rights and freedoms as well as the oasis and streams of justice intended for us by them, in their minds, as an enduring legacy.
We believe in the independence of judges. We believe that the constitution gave protection to the fundamental rights of the people and that the courts should be working for peace and stability in the society.
We believe that the edifice of true justice is sustained through effective cooperation between the bar and the bench.
In case some people believe that it is not in our domain to discuss all issues of the nation including security, administration of justice and others that are deemed sensitive, we promise to disappoint them.
Thomas Dye eruditely described politics as the art and practice of deciding who gets what, when and how. It is an activity through which people try to get more of what ever there is to get, be it money, prestige, jobs, respect, power, justice, information, security etc.
Gaetano Mosca once said that a hundred men acting uniformly in concert, with a common understanding and interest, will triumph over a thousand men who are not in accord and can be dealt with one by one. It is partially for this reason that politics is organised through parties in democratic societies. Primary for most political parties, is the desire to attain state power, and they organize themselves and people around them with the primary cause of attaining this power. We are not an exception to this principle.
As a responsible party in a democratic society should be able to, adopt a platform setting forth its principles and policy positions; recruit candidates for public office who agree with the party’s platform; inform and educate its members and the public about the platform. Kofi Annan contends that, ‘no nation was born democratic and no citizen was born responsible and therefore active, participating and accountable’. It is therefore our collective duty to discuss issues around the legislature, the executive and the judiciary without fear or favour.
We believe that while charity and justice begin at home, their pursuit does not end there. The reduction of violence, the protection of rights, the closing of the gap between rich and poor, the greening of the planet are all best achieved with an approach that starts at home but embraces the world. As a result, our sense of justice, which the courts should protect, need to be pursed with clinical clarity and independence.
We believe in an independent judiciary that is unintimidated, unpartisan, well paid and operating at the instance of the public as well as not operating as a ‘delegate’ or ‘strategic representative’ of any section of society.
Tension between the various branches of the state is a necessary evil in a democratic society. The executive, legislature and judiciary should, of necessity, not always sing from the same hymn book. It is necessary for the liberty of the people that these branches provide checks and balances against one another. It adds colour to our democracy, if these various branches of the state all have an independent and original view on issues affecting the liberties and interests of citizens.
The judiciary must be impartial and absolutely independent from the executive in order to gain and continue to enjoy the confidence of the people. A judge must always be in a position to administer justice between man/woman and the state without fear or favour. Judicial independence can only be properly secured through the engagement, as judges and magistrates, of men and women with a well documented track record of integrity, independent-mindedness and championing noble and righteous courses, and where there is a process of appointment which is transparent.
In the 1980s and 1990s, the Court of Appeal, which sits at the apex of the judiciary in Botswana, was dominated by persons of unquestionable integrity, resilience and with a burning passion for justice. These were lawyers who could not be judges in their own homeland because of their fierce independence; unflinching and unwavering commitment to justice and who wished to see the back of apartheid. Issie Maisels QC, who led Nelson Mandela’s defence team in the Rivonia trial, headed the Court of Appeal from the late 1970s to the mid 1980s, typified the quality of individuals whom we became accustomed to seeing at the highest court in the 1970s, 80s and 90s.
Other Court of Appeal judges from this golden era of Botswana law, included Sydney Wolf Kentridge QC who together with Masiels are regarded as the greatest South African lawyers of the 20th century. Another eminent jurist who served during the 80s and 90s was George Bizos SC who was also part of Mandela’s defence team during his political persecution.
All these men were considered during apartheid too honest and too independent to be appointed the bench in their own country. In the late 80s and 90s the Appeals Court was headed by Austin Amissah, a young, vibrant Ghanaian jurist of unquestionable integrity. This was a time when the Court of Appeal bench was as strong as any bench in Africa.
It was an era characterised by great judgments, particularly in the field of constitutional and administrative law. This was a time when it was not unusual for judges to differ on matters of national importance, or to arrive at the same conclusion, but for different reasons. The law reports from the 80s and 90s are replete with instances in which judicial and legislative acts were reviewed and set aside.
This was a time when decisions from the Court of Appeal in Botswana were frequently cited as persuasive in other jurisdictions. Botswana through cases such as the Dow case, Petrus Clover case, the Moagi case, and others, could be counted as one of the few countries in Africa with a colourful constitutional jurisprudence and an honest rule of law.
The quality of jurists of the Court of Appeal declined at the start of the millennium with the deaths of Austin Ammisah and Timothy Akinola Aguda. Patrick Henry Tebutt, who had served as a judge of the Cape High Court during apartheid replaced Austin Amissah as the head of the Court.
Unlike his South African predecessor, Tebutt had no history of active involvement in the fight for human rights and was an acclaimed commercial lawyer. His limited experience in fighting for human rights and his commercial mindset was reflected in his deferential approach towards the executive and legislature when it came to matters involving the judicial review of executive and legislative action. The appointment of Tebutt set off a trend, where average judges who are past their sell by date in South Africa were appointed to the Court of Appeal in Botswana.
Judges who could not be elevated higher than the High Court in South Africa found themselves appointed to the highest court in Botswana. The appointment of Tebutt also marked the beginning of a shift in the jurisprudence of the court in matters of public law. It shifted from being progressive to being extremely conservative.
Tebutt, was replaced by Ian Stuart Kirby, who is a long time confidant of President Ian Khama, and whose association with the Khamas goes back to the administration of Seretse Khama.
Ordinarily there is not much wrong with this because as a small population, we are closely related. In fact, he has been acknowledged by his colleagues as a knowledgeable and very thorough professional under normal circumstances. While his experience as a lawyer was largely limited to representing corporations as a private attorney at most, and then representing Government as Deputy Attorney General and later as Attorney General, he continued to receive professional reverence.
It is his continuous back and forth movement between the Attorney General’s Chambers and the judiciary that has created the impression amongst many that the judiciary is simply an extension of the executive. There are serious doubts about whether he can impartially resolve any legal dispute involving the executive and citizens, and those doubts are well founded because of his past association with the executive.
His jurisprudence in the several months that he has been at the helm seems to indicate that he is unapologetically executive-minded. Many believe that he was deliberately appointed by the President ahead of other more senior and indigenous Batswana judges, to ensure that Government would never lose an important case before the courts.
Until such time as we leave the appointment of judges largely to the legal profession, the executive will continue to pack the Court with executive-minded judges who are willing to deliver executive-minded decisions. We are now in an era where judgments delivered by the courts are only cited in other jurisdictions as examples of terrible decisions.
Recently a full bench of the High Court, comprising of Mojapelo J.P, Classen J. and Bizos AJ described Botswana’s judiciary as remarkably deficient in a ruling made in an application for the extradition of Emmanuel Tsebe; citing amongst others the outcome of Professor Good’s deportation case.
It was very disappointing that in the recent strike dismissals case the Court of Appeal delivered a 100 page judgment that failed, in the words of Wim Trengove SC, who is the most respected legal practitioner in Southern Africa today, to engage with the Union’s principal argument that they ought to have been afforded a collective hearing on the Government’s strategy of mass dismissals.
The Botswana Court of Appeal judgments of recent times do not inspire citizens to place their faith in the Court when they seek the protection of their rights and civil liberties. This trend, if it continues, will erode the confidence of ordinary citizens in the Court of Appeal. Just recently, there were a lot of irregularities and blatant anomalies witnessed during the bye elections which warranted approaching the High Court.
We were as unanimous on our observation of the illegalities and injustice as were on the fact that there was no point pursuing the matter, primarily because of the state of the judiciary.
