Waning public trust, confidence in judiciary

Mpho Mokwape | Monday September 5, 2022 06:00

In recent times, the judiciary has been falling deeper and deeper into turmoil and public trust and confidence seems to be taking a knock.

The judicial independence and its ability to administer justice independently without any interference from third forces is yet again under the spotlight after claims were made by one of the judges, Justice Gaolapelwe Ketlogetswe that Chief Justice Terrence Rannowane and the Minister of State Kabo Morwaeng tried to influence him to rule against the Lobatse legislator, Thapelo Matsheka's extended detention.

As it is public knowledge, 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.

Ketlogetswe allegedly claimed that the pair wanted him to unlawfully extend the detention of the MP. All these allegations have brought yet again the question of political interference in the judicial system and if at all it is independent like the public is often made to believe.

In all honestly, the public have seen a lot play out publicly especially many public figures being arrested and prosecuted under what seemed like politically motivated plotting, making one wonder how the judiciary would be spared from that same political interference.

For reference’s sake, there have been many cases of public figures in the likes of former president Ian Khama, former DIS director-general Isaac Kgosi, former Permanent Secretary to the President Carter Morupisi, former spy agent Welheminah ‘Butterfly’ Maswabi and many others. All these cases or prosecutions have raised questions at how well the judiciary has been independent or would be independent looking at their nature and the appointment of the presiding judges.

With the public trust and confidence waning, many believe that most of the judges are Executive-minded only to appease the powers that be. Take for instance, the Khama case, it seemed like a clear case to many as Khama was believed to have been denied his benefits as a former State president. The judges of the Court of Appeal made it clear that Khama will get nothing by reversing the High Court judgement. The government secured that key victory against Khama following a legal battle about the latter’s retirement benefits. The CoA bench agreed with the government that the High Court was wrong to rule that the former statesman was entitled to all the benefits and that he was to be compensated in full for the India trip.

“The High Court erred in making adverse orders in respect of the travel to India, not only on account of denuding the President of discretion in the matter but also on account of turning a blind eye to national interest,” said Justice Lakhvinder Singh Walia at the time. This case was widely debated by the public. At the time many lawyers gave their two cents views about the judgement and not even a single one of them was amused and subsequently questioned the motive behind the case’s reasoning.

As that was just a tip of the iceberg, there came the ‘Butterfly’ case, which is similar to the Khama one. She was exonerated by the High Court and set free from the charges until the CoA judges said ‘hold my cup’ and in the process sent her back to the dock for further prosecution. As for all the other remaining cases that are still pending before the courts of law, many litigants wonder if justice will be done to them, just by imagining what Justice Ketlogetswe allegedly said.

Take a look at the Morupisi case; it has been months the poor man and his wife have been waiting to know their fate since the case was closed. What possibly could be the delay in a matter that was completed many months ago? There has been postponement after another postponement regarding the judgement without any reasonable explanation. Would this not make the litigants suspicious now that it has come to the open that judges are allegedly called for secret meetings before they could render judgments?

This is not in any way to question the integrity of the High Court neither that of the CoA but just to shed light on what has forced the public to have trust issues with our judicial system. No one can deny the brilliance of these judges and their ability to make sound decisions based on the rule of law but lately there is no denial that their integrity has been questioned.

The Law Society of Botswana (LSB) has always spoken about the seemingly interference within the judicial system. The LSB has numerously made it clear that prosecution should never be politically motivated but rather the rule of law should be upheld regardless of who the subject is. The LSB former chairperson Tshekiso Tshekiso once spoke on the arrest of public officers and prosecution saying it would be really 'unfortunate' if the arrests and prosecution were politically motivated.

In an interview with Mmegi following his open letter to the Chief Justice that touched on many issues affecting the judiciary, Tshekiso said though they have no basis to talk about the arrests or origin of charges, still the rule of law should be applied.

“It would be very unfortunate if the charges are politically motivated. We have no basis to speak of the origin of the charges, or prosecution, however. Our interest is to see the rule of law upheld and prevail, regardless of who the subject of prosecution or investigation is,” he said.

Asked if he felt judicial officers were not independent as seemly implied in his letter, the former chairperson explained that it was not their suggestion that judicial officers are not independent but that there are indicators that feed into the suspicion by members of the legal fraternity and the public. He pointed out that the image of the judiciary and public confidence in it is dependent on the perception the public has about the judiciary.

“We are concerned that there have been occurrences, which unless taken care of, would lead to a total loss of public confidence in the judiciary,” Tshekiso said then.

Meanwhile, the incompetence of judicial officers and transparency has always come under scrutiny especially about the selection process of judges that is regarded as not transparent. The secrecy of the selection and appointment process is the one that reportedly breeds suspicion of influence and political interference in the appointment of judges.

In short, the judiciary, as an independent arm, should not only uphold high standards of good governance and the rule of law, it must also be seen to be doing so because lack of transparency deals a huge blow to this required trait.