'Separation of powers needs to be preserved'
Goitsemodimo Kaelo | Monday September 5, 2022 06:00
This comes after allegations that the Chief Justice (CJ) Terrence Rannowane and the Minister of State Kabo Morwaeng tried to influence Justice Gaolapelwe Ketlogetswe to rule against Lobatse legislator, Dr Thapelo Matsheka's application in a case he sought freedom from prolonged detention.
Dr Matsheka was arrested and detained recently by the Directorate of Intelligence and Security (DIS) sleuths in relation to the death of a seven-year-old Lobatse boy, Tlotso Karema in a matter that got serious public attention.
The allegations put the judicial independence and its ability to administer justice independently without any interference from third forces under the spotlight. The Judiciary meddling allegations received wide-spread criticism across the civil society and some political parties.
UB law academic, Professor Tachilisa Balule has questioned whether there are any mechanisms in place to ensure that there is protection of separation of powers as espoused by the Constitution.
Balule said while it is clear that separation of powers in the country is implicitly recognised by the Constitution, questions linger as to whether it is protected. Balule who is a constitutional law expert said the Constitution established separation of powers by dividing government into three arms being the Executive, Legislature and the Judiciary.
He said of the three, the Judiciary is the only one guaranteed of independence by the Constitution as it is charged with interpretation of laws and the protection of the rights of individuals. He said the fact that a judge was brave enough to speak about this issue shows that there is separation of powers. “That on its own demonstrates separation of powers.
If there wasn’t, I don’t think we would hear of a judge who speaks against this. A judge would not have been brave enough to raise this issue. If indeed it is true, and he is able to speak against it, then it demonstrates the existence of separation of powers,” said Balule.
However, he said the issue now raises questions as to whether there are checks and balances to ensure the protection of separation of powers as well as the independence of the Judiciary. “What checks or measures are in place to enforce separation of powers between the Executive and Judiciary. The aggrieved judge has to register that complaint with the President.
My query is whether there are adequate measures in place to safeguard that there is no influence from the Executive, especially that the President whom the judge has to report to has indirect interest in the matter.
There is need to preserve this separation of powers as it is espoused by the Constitution,' he added. “I hear Judge Ketlogetswe has written to the President. I would be confident if his complaint was registered with a body such as the Judicial Service Commission (JSC). But then again, the JSC is also headed by the Chief Justice who is also mentioned in the saga.
He is an interested party. One may also wonder the extent of its independence. But the law is there to make that separation of powers,” he added. Balule stated that it would have been better if the JSC was made of members appointed through public participation. However, he argued that as things stand, the JSC is dominated by presidential appointees, which would also erode its independence.
Meanwhile, the civil society has weighed in on the saga. Opposition party, Botswana National Front (BNF) has also called on a Tribunal to investigate the Chief Justice and suspend him from duty pending the investigations.
“There is need to uphold the integrity of the Judiciary and ensure clear separation of powers between three organs of government. Judicial integrity is a pre-condition to maintaining trust in the Judiciary and upholding its independence,” read a statement from BNF secretary-general, Ketlhalefile Motshegwa. BNF is of the view that Rannowane’s conduct raises suspicions that he might have agreed the position of CJ to safeguard the interest of the Executive.
The UPR NGO Working Group also expressed concern over the matter, and strongly emphasised the need for legal rules and procedures to be respected and adhered to in relation to all court cases, regardless of the socio-economic or political status of the person concerned. “We recognise the role which the court plays in the protection of human rights and the dignity of individuals.
We therefore, support the independence of the Judiciary as it acts to strengthen the dignity of all persons,” read a statement from UPR NGO Working Group. The UPR NGO Working Group called on President Mokgweetsi Masisi to relieve Morwaeng of his duties, and the CJ to take leave of absence from duty to enable investigations to be undertaken. The NGO said the President should uphold the rule of law, which is a principle of governance to which he has consistently stated his commitment.