Wednesday, October 4, 2023

The judiciary is now at the biggest risk of becoming next victim of capture  

We should not play fast and loose with the judiciary.

As we speak the judiciary is being stress tested to the limit.

If this trend continues,  it will inevitably reach a breaking point.

And at the pace things are moving, this is not far from happening.

In a functioning democracy the judiciary is the last thing to mess with.

They are the last line of defence – a bulwark of unquestionable consequences.

But we live in a strange place and in strange times where the gig seemingly never stops.

Unlike cabinet or parliament, the judiciary does not have the army or the police to enforce its decisions.

To enforce those decisions, it relies on the goodwill of the executive.

But when we have an executive that sees nothing untoward with disobeying or ignoring court orders, then we should be worried.

The Law Society of Botswana has a duty to protect the judiciary, for they are part and parcel of the judiciary themselves.

For it to function effectively as an institution, the judiciary has to enjoy near universal trust of the public.

And to achieve that, it has to be detached from everyday events, including the groundswell shrill of public gossip.

Ultimately the judiciary relies solely on faith and trust from the public.

That faith sadly is not guaranteed, much less infinite.

Rather it is conditional and forever in short supply.

It depends on the judiciary demonstrating it deserves it.

If it loses such faith, the judiciary immediately ceases to mean anything to anybody.

The standards against which the public holds the judges are inviolable – or at least they should be.

To the public these standards are higher than the oath the judges take upon assumption of duty.

Thus the line dividing the executive and the judiciary is, at least to the public, not imaginary.

It is real. And crossing it is heavily consequential.

When you have a Chief Justice saying henceforth judges from the north of Dibete will not be allocated cases in which former president Ian Khama is a litigant then we should raise our ears.

Ian Khama is not the overlord of all territory north of Dibete.

He has never been.

Yet this is what Chief Justice Terrence Rannowane told the judges not so long ago.

The assumption is that when it comes to Ian Khama the judges that originate from north of Dibete are compromised as a collective.

Ian Khama is the original offender when it comes to undermining the independence of judges in Botswana.

This is what the  former president said when he opened a legal conference in Mahalapye in 2015: “As judicial officers, I need not remind you that the exercise of your functions can have a significant and life changing impact on those you serve, for better or for worse. Your core function is to impartially, without favour or ill will adjudicate over cases brought to you expeditiously and to timeously pronounce judgments on such cases. The whole nation looks up to each and everyone of you to do so in such a manner without agendas or influences from outside affecting your judgements. We are asking you, I am asking you as well, to adopt this approach in keeping with your responsibilities and our expectations of yourselves to build on our already good reputation you have contributed to. You therefore ought to discharge these functions with a high sense of humility, discipline and dedication. As the old adage goes – to whom much responsibility is given, much more is required.”

Incidentally not long after, he suspended five.

Since then the situation has simply worsened, including at the Court of Appeal.

The situation has not improved even with a new administration that had promised the Rule of Law.

The line between the executive and the judiciary has been irredeemably blurred.

It is clear and often annoying to realise that as members of the public we often credit judges with the extra senses that they do not possess.

For judges coming from those places to be denied sitting on Khama cases  sounds a bit presumptuous.

But we must thank the Chief Justice for his honesty when talking about Ian Khama and the judges from the north.

His position is a clear signal that not even the judiciary has been spared from the long running feud  between Khama and president Mokgweetsi Masisi that has kind of pervaded and soiled all of our public institutions.

How then can we even hope the judiciary will be spared when there is so much at stake.

It is like denying the fact that force of gravity exists.

Since the feud started, there has been overuse of the judiciary by the contenders.

This puts the judiciary under extreme pressure.

My view is that if any component of the judiciary has already started to give in, then it has to be the Court of Appeal.

Maybe I am wrong. Indeed I hope and pray that I am wrong.


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