Mmegi Blogs :: Judge President Kirby’s interpretation, fact or fiction?
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Wednesday 18 October 2017, 06:00 am.
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Judge President Kirby’s interpretation, fact or fiction?

I almost fell on my frail back when I read Judge President Ian Kirby’s reported speech……..denying the independence of the two arms of government, the Executive and the Legislature and only recognising the independence of the judiciary where he plies his trade.
By Michael Dingake Tue 24 Jan 2017, 17:26 pm (GMT +2)
Mmegi Blogs :: Judge President Kirby’s interpretation, fact or fiction?








I may be blank in the law, but I pride myself in the smattering knowledge of political science, which has indoctrinated me in the theory of the separation of powers between the three arms of government. The concept comes from the Frenchman, Montesquieu, through his book the ‘Spirit of the Laws.’ The concept became entrenched in the United States (US) constitution as a core democratic and constitutional principle. Hamilton and Madison, two of some of the Americans who drafted the US constitution, were fascinated by the device of ‘checks and balances’ implied in the theory propounded by Montesquieu. Madison wrote: “It may be a reflection on human nature that such device should be necessary to control the abuses of Government. But what is Government itself, but the greatest of all reflections on human nature? If men were angels, no Government would be necessary. If angels were to Govern, neither internal controls on Government would be necessary. In framing a Government which is to be administered by men over men, the great difficulty lies in this: You must first enable the Government to control the governed; and in the next place oblige it to control itself.”

Prevention of abuse of power is the motive force, the raison d’etre of ‘checks and balances/separation of powers/independence of arms of Government.’ Democracy, a popular form of modern Government, revolves on the axis of checks and balances. Democratic constitutions reflect this theory entrenched in practice by the three separate organs of Government, independent of one another, but interdependent. The three are vital cogs in the Government they all serve. The RSA constitution, one of the most, if not the most progressive constitution of our times, tops up with Chapter Nine Institutions, deliberately crafted to monitor and prevent abuse of power by any Government  organ. Checks and balances of democratic dispensation should be observed and jealously guarded. Separation of powers is the kernel of democracy however imagined, defined or practised. The British constitution, the oldest in the democratic field, hasn’t got the ‘separation of powers’ in black and white on its pages, since it’s unwritten! The system of democracy outlined as ‘King/Queen in Parliament,’ highlighting monarchy in the terms: “Head of the Executive, head of Parliament, head of the Judiciary, head of the Church and the Commander-in-Chief of the Armed Forces,” sounds  monarchical and dictatorial. In actual fact, the Queen is a mere ceremonial head, while the practice of checks and balances is alive and much in vogue.

Parliament makes the laws, the Prime Minister and his/her Cabinet implements the laws and the Judiciary interprets the laws; the organs operate interdependently and independently without the slightest hitch. In our Botswana, there is

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no section or subsection of the constitution that screams SEPARATION OF POWERS or INDEPENDENT ARMS OF GOVERNMENT; the sections do clearly indicate the arms of the Government and define their separate functions, independently undertaken. In practice, the Executive may refuse to recognise the independence of Parliament as happens when President Khama demands a submissive Speaker of Parliament, is happy with Parliament staffed by civil servants and arrogantly treats Parliament as his department! In the Spirit of the Laws and the concept of Checks and Balances, the theory and practice of Parliamentary democracy, HE is abusing his powers by manipulating the process. This however doesn’t cancel the independence of Parliament; it projects the President’s insatiable appetite to control Parliament, which needs to be curbed! Unwittingly, if not deliberately, the Judge President’s interpretation of independence of the arms of Government, may be playing into the hands of HE, the manipulator. HE lost a court case attempting to have Parliament elect the Speaker by a show of hands contrary to rules; after BDP suffered a humiliating loss of popular vote and dwindling MPs, he made good his loss by increasing the number of his party’s MPs by four ‘Specially-elected members.’ This happened in the background of his rejection of legitimate demand to increase constituencies/MPs to correspond with rising population. He prefers appointing MPs instead of having them directly elected.  If this be no manipulation of the constitution, nothing is! Moreover, the judiciary, which Judge President Kirby claims to be the only ‘independent’ element in the equation, shouldn’t be so regarded, simply because some Judges may be independent-minded as persons. That may be a plus. Independence of the Judiciary however, is premised more on the procedure of appointment, employment conditions and scale of remuneration enjoyed by the Judiciary; we are here dealing with men, not angels! Appointment of the Judiciary largely rests with the Executive who cannot be without influence; remuneration is Parliament’s prerogative, whose influence cannot be negative either! Impossible for the Judiciary to wriggle out of the vice of these two fraternal organs and declare fictitious independence! The public sincerely expects the legal minds/judicial experts, executive powers and MPs, we have available, to perform their respective duties with commitment, sensitivity  and due diligence. The law is sterile if it marches in opposite direction with dynamic politics. Law interpretation should be based on fact, not fiction. Fact is, without checks and balances, democracy is dead; fiction is, in Botswana we have another variety of democracy. No! Democracy is indivisible!  The fact that organs of Government are interdependent shouldn’t be misconstrued as negation of their independence. Their independence is writ large in intent and function!

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