President Ian Khama is not the only national leader giving awards to sitting judges. It turns out that in the United Kingdom, whose model of government Botswana adopted at independence in 1966, members of the judiciary are routinely honoured by the executive.
This year, Queen Elizabeth awarded Judge Iain Hamilton , who is Senior Circuit Judge and Designated Family Judge for Manchester, a CBE under the “Law and Order” category. Last year’s Queen’s Birthday Honours List shows that the same honour was given to Judge Peter John Luther Beaumont, QC (Recorder of London) and Justice Thomas Alexander Burgess (Presiding County Court Judge and Temporary High Court Judge and Recorder of Belfast) for their services to the Administration of Justice. Similarly, the 2012 awards included a CBE for Nicholas Crichton, a District Judge who has “dedicated himself to the welfare of children and families who are involved in the family justice system, both in the UK and overseas.” In the UK case, the Honours Committee is run from within the Cabinet Office of the government and the final list of nominations is passed to the Queen by the Prime Minister.
A little over two weeks ago, Khama honoured two Court of Appeal judges, Ian Kirby and Isaac Lesetedi much to the consternation of the Botswana Federation of Public Sectors Union which put out a condemnatory statement a few days later.
“BOFEPUSU and its constituent unions are no doubt regular litigants before these courts, and, thus, have every right to be worried when the President, who is the head of the executive arm of government, rewards judges. The President and his executive arm of government are regular litigants before the Court of Appeal and the High Court. It is unethical conduct for any judge to accept awards or gifts from the President or any other government functionary in respect of their judicial functions,” reads an open letter penned by BOFEPUSU’s Deputy Secretary General, Ketlhalefile Motshegwa.
In buttressing the latter point, Motshegwa quotes an assertion made by Rebecca Annan-Welsh and George Williams in the Monash Law Review in an article titled “Judicial Independence from the Executive: A First Principle Review of Australian Cases.” The relevant quote reads: “Personal independence further requires that judges are not rewarded or punished for the conduct of their judicial functions. Hence, any practice of the executive awarding, or recommending the award, or an honour of a judge for his or her judicial activity should be avoided.”
Annan-Welsh and Williams’ argument, which BOFEPUSU fully endorses, is that judges should be given awards after their retirement when there would be no possibility of (or perception that they are) trading favours with the executive.