As an AGOA-eligible country, Botswana has duty-free access to the United States market for over 1800 products. AGOA is an acronym for American Growth Opportunity Act and through it, the US government helps to spur market-led economic growth and development in sub-Saharan Africa as well as deepen US trade and investment ties with Sub-Saharan Africa. Out of realisation that there is need for increased awareness creation of the existence and opportunities under the AGOA programme, Botswana and the US have developed the National AGOA Utilization Strategy.
However, benefitting from AGOA has one stringent standard that Botswana has begun to default on – rule of law. As some have observed, President Mokgweetsi Masisi’s 2022 state-of-the-nation address (SONA) was radio-silent on substantive issues relating to the judiciary. Not that he (or his predecessors for that matter) have ever spoken about on very important relating to the judiciary – its independence. The established standard is to speak generally, vaguely about fidelity to the “rule of law.”
In the particular case of Masisi, it has been “In carrying out my duties my touch stone shall remain the oath I just made to uphold the Constitution, the rule of law, and maintenance of national unity, peace and prosperity” (2018 inauguration speech); “Mister Speaker, being a democratic state, Botswana has constantly committed herself to the maintenance of high standards of governance and the rule of law” (2018 SONA); “I would like to reiterate that I am committed to the rule of law in this country, as that would enhance confidence and send message to all of us that the law must be abided or face consequences of non-compliance” (2019 inauguration speech); “Mister Speaker, Botswana remains committed to uphold the shared values of democracy, good governance, the rule of law and the respect for human rights” (2019 SONA); “This Vision will be driven by a knowledge-based and inclusive economy underpinned by democracy, good governance, the rule of law and respect for human rights” (2020 SONA); Regional cooperation remains the cornerstone of Botswana’s foreign policy, underpinned by development, democracy, rule of law and respect for human rights” (2021 SONA); and “Good governance, adherence to the principles of participatory democracy and the rule of law, remain central to sustainable inclusive development” (2022).
While it is politically convenient for Botswana presidents to talk generally about the rule of law, the World Justice Project has proposed a working definition that comprises four principles. One is “diverse, competent, and independent lawyers and judges.” The National AGOA Utilization Strategy is as precise with regard to what constitutes rule of law, noting in one part that “Botswana is among some of the countries well known for observing the rule of law with an independent and effective judiciary system.”
Judicial independence has become an issue following revelations/allegations that Masisi is doing something that he promised he wouldn’t do when he became president.
“I wish to also assure this august House of my Government’s commitment to the respect for the principle of the separation of powers among the three branches of Government, namely; the Executive, the Legislature and the Judiciary. As a functional democracy, it is equally crucial that oversight institutions operate freely without interference,” he said on April 1, 2018.
It has been alleged by two prominent people within the other two arms of government that the executive (meaning Masisi) is interfering in operations of the judiciary.
A High Court judge has alleged that Chief Justice Terrence Rannowane and the Minister of State, Kabo Morwaeng, leaned hard on him to deliver a judgement that favoured the state. A few short weeks thereafter, Kgosi Mosadi Seboko alleged that during a meeting that she had with Masisi at State House, the official presidential residence, the latter said that he would instruct Court of Appeal judges to rule in favour of the state in a case in which the state is appealing a case it lost against Seboko’s tribe. The government has denied both allegations but that is not enough for the Law Society of Botswana (LSB), which has called for a thorough investigation into the alleged incidents.
Commenting on Seboko’s allegation in his official response to Masisi’s address, Dithapelo Keorapetse essentially said that the Balete kgosikgolo (supreme traditional leader) was more believable than Masisi. Indeed, many more people have said the exact same thing. What has been alleged about Masisi will deepen unease that has been expressed in a report co-authored by the African Union Commission, the United Nations and the African Development Bank Group.
“Overall, Western Africa has improved in relation to rule of law since 2014 and is now doing better than Southern Africa, whose score has fallen,” says the four organisations in a report that analyses Africa’s progress towards the Sustainable Development Goals. “Central and Eastern Africa have remained consistently low. In Western Africa, a number of States have ended violent conflicts and are now building institutions to enhance the rule of law, such as in Liberia and Sierra Leone. Southern Africa’s score remains relatively high due to strong institutions, but Botswana, Mozambique and South Africa have deteriorated significantly due to government involvement in judicial independence.”
Another issue that has been interpreted as interference in the judiciary is “forum shopping.” The latter is a practice adopted by litigants to get their cases heard in a particular court that is likely to provide a favourable judgment. The gravity of concern about forum shopping is such that, beginning in 2012, it is routinely raised at the opening of the legal year in early February. All along it has been representatives of the LSB who raise this issue but no less a person than the Attorney General, Abraham Keetshabe, has also done so. Chief Justice, Rannowane has himself been accused of forum shopping when he re-assigned a criminal case involving former president Ian Khama.
In terms of AGOA rules, each year, the US. president designates sub-Saharan African countries that are eligible for AGOA benefits based on progress in meeting certain criteria. If Botswana fails on the “independent and effective judiciary system”, the literal cost could be immense.
