Judges must resist themselves, executive

Kgosietsile Ngakaagae | Monday September 27, 2021 06:00

Instead, I will talk about something lawyers only generally only gossip about; Their Lordships, and Ladyships. I do not pretend to lecture. Far from it. The path of criticism, is a public way, I was taught.

They correctly say the judiciary is the nation’s last line of defence. The judiciary is the custodian of the Constitution. I am proud to be a member of the justice system. There is something about defending liberties that gives that satisfaction of true, national service.

There is something about resisting the wrongful exercise of executive power, that tells you that you are having a meaningful role in nation building. We are always in the trenches, restraining the intrusive hand of the executive. The people we depend on, for a fair arbitration of liberties, are the judges.

Over the years I have observed conflicts in the judiciary. Some judges have even resigned, out of frustration. We know about such conflicts, but judges, are generally secretive by nature. They live near hermitical lives, and their private lives are, generally, tightly fenced.

For example, I know the girlfriends of almost all the lawyers around me, but I do not know any single judge’s girlfriend. I have never applied for judgeship for that precise reason. I am not ready, as yet, to become a hermit. Even then, they are not paid enough for giving up so much.

The power that comes with judgeship, makes them an extremely valuable and, vulnerable lot. Politicians want to wine and dine them. Politicians want to come close enough to exert influence. Because judges are in a sense, the law itself, their voices rank above those of all members of society, even the President.

When a judge speaks, the President must obey. When a judge orders that a man be executed, that will be done barring some superior decision of another judge. Judges cannot be disobeyed, whether they are wrong, or right. Judges are powerful.

On account of that, judges are potentially dangerous people. A judge in the hands of an enemy, is a weapon of mass destruction. A judge, as an enemy, can be apocalyptic, in effect. As such judges must guard against two things, in my view; their own prejudices, and the influence of the executive.

Because inspite of all such power, judges are human. They bleed, they hurt, they can go broke, they have frustrations (expressed and unexpressed), and have all feelings all mortals have. It is trusted though, by society, that they have through the advantages of experience and training, risen above their feelings, and improper influence.

A fellow lawyer, and academic, Gosego Rockfall Lekgowe raised a question over the appointment of judges. He made reference to the recent appointment of Judge Garekwe, to the Court of Appeal (CoA). To be sure, he was the first person to publicly celebrate the learned judge’s appointment, when news broke out.

Besides there seems to be near universal consensus that Judge Garekwe is more than qualified for the post. Those of us who have practised in her court (myself inclusive) would vote her any-day. What he was enquiring on, was really about why some judges, get overlooked in judicial appointments. He mentioned Judge Tafa, as an example.

Why is such a senior judge still marking time, at the High Court? It’s open secret that he was overlooked for the Chief Justice position, in favour of Chief Justice Rannowane, just as Judge Lesetedi was once overlooked for a Junior Judge. He has perennially been overlooked for a CoA appointment.

Yet he is very senior to all High Court judges and, undeniably, capable. The examples are mine, not Mr. Lekgowe’s. The argument was for a more transparent system, which would not leave the public asking questions over judicial appointments. Were the public to lose trust in the judiciary, the rule of law would collapse. The only reason we don’t kill each other, when unhappy with each other, is because we trust the courts can dispense justice, for us.

But we have seen, over the years, the rulers vying for the attention of the judges. Indeed many appointments have been downright suspect. Some have even alleged that regionalism, has had a part in judicial appointments, and they make logical arguments for their positions even if they might be wrong, in fact. They all speak in hushed tones because you don’t want to offend a judge they may potentially be appearing before, the next day.

I once appeared before a judge who I had had a bad brush with outside the court, in my line of duty. His disdain for my person was palpable. His cynicism, even in the manner of his address for my person, was extreme. I must say, he exacted his revenge. Thankfully, I had braced for it. And what I have braced for, cannot hurt me.

We trust in Judges, for justice. Justice, I must emphasise, means justice, whichever side the coin falls.

It is important for judges to check their prejudices and frustrations, at the court door, and to resist the executive. Our Judges have generally been exemplary in that regard. For that, they deserve our respect.