Writing under the above headline updated in October 2020, the retired Justice of the Punjab & Haryana High Court Justice Ranjit Singh wrote ‘ Judges are more often bribed by their ambition and loyalty rather than money….The judiciary in our country, considered pious and the ultimate hope of the downtrodden, seems to be passing through a crisis. This institution, considered incorruptible and manned by men of integrity, is facing a crisis of character. Something which was earlier unheard of in the hallowed corridors of the courts is now being heard in loud voices in the court precincts….Slowly and systemically the executive has succeeded in making an inroad into taking control over the judiciary’. Justice Singh continued to write ‘….The public would expect the judiciary to come clean when any allegations of corruption or any form of misconduct is alleged against anyone in the judicial set-up. There is a tendency to hide or ignore such things instead of taking these allegations head-on.
Departing from the premise that Botswana judiciary has been in the news for substantially all the wrong reasons in the recent past, this conversation will largely rely on Justice Singh’s above writing with respect to this country’s judiciary. It is not my expectation the judiciary will respond to each and every allegation levelled against it. But I cannot comprehend how and why on earth the judiciary could not respond to allegations by former President General Ian Khama that there are some within it who inform him about the goings-on in the institution with respect to how his matters are determined for lack of a better word, clandestinely. For General Khama to have made these damaging allegations against the judiciary and it remains mute particularly with potential deleterious consequences and perceptions members of the public would treat such allegations is concerning and damaging to the judiciary to say the least. It erodes public confidence in no small measure. They say silence implies consent.
The deafening silence of the judiciary to General Khama’s allegations may very well have precipitated to what happened last week when his lawyers and acting out of his instructions, recused themselves from the Court of Appeal proceedings because he has lost confidence in the judiciary to impartially deal with his matters. Whether his allegations are true or not is another matter. The judiciary would have made itself a lot of good had it done something about his allegations in terms of engaging him to substantiate his allegations. But for some unexplained reasons, it remained tone-deaf if not indifferent. This confirms Justice Singh’s viewpoint that ‘….there is a tendency to hide or ignore such things instead of taking these allegations head-on’.
The second crisis of character is the deafening silence of the judiciary has to do with the allegations made by Justice Gaolapelwe Ketlogetswe to the effect that the Chief Justice tried or indeed influenced him to rule against Hon Dr Thapelo Matsheka’s urgent application to secure his release from custody. Here is a judge making serious and damaging allegations against his own colleague and boss in particular and the judiciary in general. Yet the judiciary somewhat treats this matter like a simple commentary by a member of the public to which response may not be necessary. It is about three months or so since Ketlogetswe J made such allegations yet the judiciary remains inactive to cause the needle to move. To ordinary members of the public like myself, it says to me it is business as usual. There is a huge prize to be paid by the judiciary and that is that its confidence from members of the public in it is manifestly eroded. The withdrawal by the Khama legal representatives before the Court of Appeal justices may very well have rightly or wrongly, caused a precedent of sorts wherein other litigants could in future show no confidence in the judiciary.
Thirdly, could the crisis of character be caused by what Justice Singh refers to as ‘….slowly and systemically the executive has succeeded in making an inroad into taking control over the judiciary’? It could very well be the case if one has regard to what Ketlogetswe J said about his interaction with the Minister for State President Hon Kabo Morwaeng with respect to Hon Dr Matsheka’s urgent application as referred to above. The mere fact that the Minister in the highest office in the land is alleged to have mustered the courage and conviction to approach and cause a conversation over a legal matter before the judge could be an indication that ‘….the executive has succeeded in making an inroad into taking control over the judiciary’. I have argued before and I still hold that argument that Minister Morwaeng notwithstanding my belief that he is not legally grounded like me, has the benefit and privilege of being surrounded by legally grounded State officials who would have competently advised him against approaching and causing a conversation with a judge. However, my gut feeling is that such advice was never sought because presumably, it was meant to be a confidential matter. Ketlogetswe J however spoiled the party hence the precarious situation the Minister finds himself in should Ketlogetswe J be vindicated in his allegations against him.
The crisis of character facing the judiciary is having many ripple effects here and elsewhere. I have already discussed the internal ones. Elsewhere, the world views Botswana judiciary in bad light owing to allegations levelled against it by its own citizens. This without doubt is disturbing. More disturbed will be investors who take the rule of law very seriously because once there are doubts on this important value, such smart investors will be weary whether their investments will be safe.
There is no doubt in my mind that Botswana judiciary faces a crisis of character largely owing to the fact that the leadership of the institution behaves like a captured entity that is still awaiting instructions on the way forward. Justice Singh’s writing accords well with what is unfolding in the Botswana judiciary. It is a judiciary facing a crisis of character most of which is, truth be told, self-created. It will be seen how it redeems itself if ever it will do so. But one thing is undebatable and that is that the judiciary as our last line of defence, has let it down big time let alone its clients, members of the public. I am prepared to be persuaded otherwise as always. Judge for Yourself!
