Botswana’s judiciary limits the protection of human rights, a study by University of Botswana (UB) academic, Dr Bonolo Dinokopila has revealed. In an academic paper titled, “The role of the judiciary in the enhancing constitutional democracy in Botswana,” Dinokopila who is the head of UB’s Law Department cited Basarwa’s relocation from their ancestral land, Professor Kenneth Good and Kanani cases among others. “Perhaps the weakest decision, relating to human rights, ever made by the Courts of Botswana is that which is made in Kanani v. State,” he said.
According to Dinokopila, the Court of Appeal in that case was of the view that gay men and lesbian women do not represent a group or class which required protection. “Refusing to decriminalise same sex relations, the Court held further that the time had not arrived for the adoption of progressive trends taking place elsewhere. It is not clear on what basis, since there was no evidence provided to the Court to substantiate the argument that the society is not ready to accept homosexuality,” said Dinokopila. With regard to CKGR cases, Dinokopila said while the decisions have brought limited succour to the litigants, the pronouncement made by the Courts in those cases was lacking in some respects. “In both cases, and even though the issues touched on the justiciability of socio-economic rights in Botswana, the Courts failed to conclusively decide whether socio-economic rights in Botswana are justiciable or not,” he said. He said the CKGR case was also criticised for failing to conclusively hold that the Government was under the obligation to provide Basarwa with water.
According to Dinokopila, “The Kenneth Good and the Motswaledi cases are examples of instances where the courts have faltered. It is worthy to note that in both cases what was being questioned were the actions of a sitting president.” He said “The courts must ensure that their approach to the adjudication of all constitutional disputes is consistent. In that way, the courts will play a pivotal role in nurturing BotswanaÔǃs constitutional democracy and will ensure that Botswana in the next fifty years will continue to be an example of a working democracy in Africa.” Dinokopila reiterated that “Other cases which are indicative of the Courts’ shortcomings in the adjudication of human rights cases is the Good, and Gomolemo Gomolemo Motswaledi cases.” “In the Kenneth Good case both the High Court and the Court of Appeal held that the President’s decision to declare someone a prohibited immigrant could not be challenged before the courts. Both Courts held that once the President has decided that a person was declared a prohibited immigrant on account of national security concerns, the Courts could not attempt to second guess the President’s decision,” he said.
Dinokopila added that “In the Motswaledi case, again both the High Court and the Court of Appeal held that the President could not be sued, in his personal or private capacity, while in office.” He said the Court’s decision was considered by some as indicating the Court’s deference to the Executive.
“A closer reading of this decision will reveal that the courts, as already indicated above, may have been handicapped by a constitutional framework that not only bestows too much power on the Office of the President but grants the person occupying that office immunity from suit in his private capacity whilst holding office,” he said. He further states that “With respect to the adjudication of disputes, there have been instances where the consistency of the Courts is questionable. These are instances where the courts have refused to adopt the same approach that was adopted by the Court of Appeal in the Unity Dow case in the application of international law.”
He said the appointment of judges should be reviewed so as to ensure that the process is insulated from external influences and will lead to a more transparent appointment of judicial officers. “That is, the composition of the JSC must be reviewed so as to ensure its compliance with international standards relating to the composition of such institutions. The independence of the judiciary might be enhanced by ensuring its financial autonomy which can be achieved by ensuring that the judiciary draws its funding from the country’s consolidated fund,” he said.
