There was a noticeable absence of private legal practitioners from the list of persons recently appointed to the bench. Four appointments were made, a Government lawyer, Tshepo Motswagole; two University of Botswana lecturers namely, Dr. Kholisani Solo and Dr. Onkemetse Tshosa and Mike Leburu of the Botswana Development Corporation. Because the process of appointment continues to be shrouded in secrecy, with the “interviews” for appointments being closed to the public, one does not know what qualities the appointed persons bring to the bench. One is left wondering whether those appointed will bring any new qualities to the bench i.e. do they have what it takes to transform our law and take it to greater depths or are they simply bringing more of the same? Were they appointed because of their qualities as jurists, or simply because they can be trusted by the executive not to rock the boat.
The continued absence of seasoned private practitioners amongst the appointees is the clearest indication that political acceptability, and not merit, is the criterion for judicial appointment in Botswana. It is something that we have known for a long time, but the latest appointments only serve as a resounding confirmation of that.
In almost all liberal democracies, the highest judicial office is reserved for persons who have distinguished themselves in practice and have contributed to the development of the law through the cases that they have argued. In Botswana seasoned practitioners get snubbed in favour of magistrates, civil servants and quasi-civil servants.
Placing political acceptability above merit has stunted the growth and development of our law. The quality of judgments has regressed over the last decade. There are hardly any inspiring judgments and the courts have failed to develop the law to make it relevant to the present. The judgments show very little creativity. Our human rights jurisprudence, after Swaziland, is probably the least developed in Southern Africa. The judgments from our courts are hardly cited anywhere outside our country, apart from Swaziland.
This is in sharp contrast to the judgments from the highest courts in neighbouring countries. The judgments from the Constitutional Court of South Africa are probably some of the most progressive in the world, and are cited the world over. They are often very creative and reflect a lot of love for humanity, something which our judgments failed to radiate. The Constitutional Court in South Africa has been instrumental through their creative judgments in combating HIV/AIDS in making sure ARVs are provided to pregnant mothers to prevent mother to child transmission and have also been instrumental in seeking to alleviate poverty. In contrast, our courts, in refusing to decriminalise homosexuality, have potentiality contributed to the scourge of HIV in prisons, as prison officers continue to refuse to provide condoms to prisoners, on the justification that same sex relations are prohibited.
The reasons for the lack of positive development in our jurisprudence is that we have continuously failed to appoint to the bench, men and women with the necessary track record to use the law to bring about positive changes to people’s lives and to develop jurisprudence that the ordinary man on the street can relate to. We need judges who will infuse more African values into our law and make it relevant to citizens. The Roman-Dutch common law principles, which our courts indiscriminately apply, are based on the practices of people with values, which are very different from ours. A lot of the jurisprudence which our courts apply was developed by the South African justice system, during the apartheid era, when the law and the courts were no more than a tool of oppression. The Roman-Dutch common law is a system of law that places selfish personal interest above those of the community.
A judge’s approach to human rights and human dignity, and other legal issues, is coloured by his or her experiences as a legal practitioner. If one has spent most of their career trying to defend Government against allegations of human rights abuses, they are unlikely to be receptive to human rights based arguments. In order to transform our human rights jurisprudence, we need to appoint to the bench, men and women with a track record in fighting for people’s freedom and liberties. The bench at present is packed with conservatives, and it does not make any sense to continue to appoint more of them.