The illusion of Justice: The low point of Botswana’s judiciary
Mpho Mokwape | Monday December 25, 2023 13:13
Legal minds believe that justice equates to fairness. When one talks about justice, people expect to be treated impartially, fairly, properly, and reasonably by the law and by those tasked with creating those laws.
Justice prevails when laws are made to protect citizens.
Judicial laws are to ensure that no harm befalls one, and that, where harm is alleged, a remedial action is taken while also ensuring that both litigants receive a fair treatment. What happens when public perception about the justice system is nothing to write home about? When it is marred with negativity?
This is what our Judiciary is going through and 2023 has not been any different than previous years. Since the retirement of some judges amongst them former president of the Court of Appeal, Ian Kirby who was a well respected and known as a legal hawk, the institution has been facing criticism over its alleged loss of integrity.
The common man's complaint about the impartiality of the judiciary has been treated with side eyes especially for one who has lost a case before the court until those regarded as prominent people raised the same alarm. As the year 2023 wraps up, a reflection of the Judiciary leaves a bitter taste for a country that is known as the ‘model of African democracy’. This year was so eventful in the judicial calendar, so the public and some judges felt the wrath of an 'unjust' system. Let’s start with Chief Justice (CJ) Terence Rannowane and judge Gaolapelwe Ketlogetswe’s clash.
The raging judicial war that started in 2022 and it spilled into 2023 as both parties took the tug-of-war out of the judicial space and resorted to personally mudslinging each other in defence. Since then, it has been a downhill battle for the little to less remaining image of the Judiciary. What could be deemed as the image of the judiciary, CJ was constantly accused of putting his figure where it was not needed. Typical example, Justice Ketlogetswe accused him of trying to influence him on how he dealt with Member of Parliament for Lobatse, Dr Thapelo Matsheka’s case.
Matsheka’s case opened cans of worms that have been hidden in the Judiciary. As both men ripped each other with character assassination, it seemed purely like an entertainment for the common man who felt justified for doubting how the Judiciary was now operating. But, in the eyes of the international bodies, this was totally a dent on the justice system of the country. As much as we stand to distance the function of democratic system to the independence of the Judiciary, it is impossible because where there is justice, there is democracy and where there is democracy there is a functioning judicial system. Both are anchored together to create a balanced running democracy but when one pulls the other direction it creates problems. Judiciary cannot exist without the trust and confidence of the public.
Accountability to legal and ethical standard but by large the citizens consider the Judiciary to be declining. The Judiciary earns trust and confidence by faithfully performing its duties; adhering to ethical standards; and effectively carrying out duties without fear or favour. Judges and judicial employees should be guided by codes of conduct, judicial policies, and robust accountability mechanisms within the Judiciary that work together to uphold standards relating to conduct and the management of courts not any other thing or a person. But our Judiciary on the other hand seems to be influenced or guided by those in power not the rule of law. For example, Balete tribe of Ramotswa had a fight with the government over a piece of land. Balete Kgosikgolo Mosadi Seboko alleged that President Mokgweetsi Masisi told her how he 'instructs judges'. If the allegations are indeed true, how on earth did we arrive here regarding our judicial system? Is this the justice that everyone talks about? Who is to blame? How can we fix it? These are the questions we should be asking ourselves and not simply laughing off as if it’s some kind of a joke.
We understand that the Setswana language expression ‘loso legolo ke ditshego’ meaning that we laugh even in our darkest moments, not that we are happy but being in denial. That is exactly what we are doing as a nation, darkness has been creeping for a while in our Judiciary but 2023 has been a darkest year yet. Clashes of judges with the CJ are just even the tip of the iceberg. Just this year, CJ and Justice Gabriel Komboni were engaged in a bitter legal battle following last year’s decision to relocate the latter to the Francistown High Court.
While issues of tribalism, favouritism and forum shopping came into spotlight, the question is why CJ seems to be having constant clashes with some of his juniors. Is it not a question that should be interrogated by the appointing authorities if at all there is a care about the reputation and the image of the Judiciary? Clashes are not limited to judges only but lawyers are often exhibiting unhappiness when it comes to certain judges and their impartiality when dealing with certain cases. Some judges have been accused by lawyers of leaning towards one side in some cases.
Cases of prominent people especially those against the government have been singled out. Former president Ian Khama, former Directorate of Intelligence and Security head, Isaac Kgosi are some who have allegedly experienced the alleged impartiality of certain judges. The Court of Appeal (CoA) has been the last hope for a lot of people, but since Kirby left, some believe that his successors were carefully picked to fulfill a certain mandate. Kirby’s CoA was well respected, morally upright and made up of a nonsense panel. The CoA especially in the year 2024 has experienced bias as public perception has really shifted as Batswana do not believe in its ability anymore to deliver fair justice to those who seek it. Just recently, the CoA came under fire when a litigant accused some of the judges of unfairness. Local spying company Infotrac and diamond mining company Debswana faced off in court over a P110 million suit. Not only did it become messy between the parties but also the presiding judges being president Tebogo Tau, and Justice Singh Walia were accused of being harsh to the other party of Infotrac.
At the time, Infotrac lawyer Kgosietsile Ngakaagae complained on how he was given a hard time by Walia and while Tau did little to nothing to protect him. This caused a litany of accusations as the majority believed that the judges are acting on instructions from those in power and are not in for the deliberation of fair justice.
After a long back and forth and a call for the judges to recuse themselves from the case, they refused and the spying company later lost the case as Debswana was granted its appeal. When the CoA has spoken, there is nothing that anyone can do as it is the apex court. Some litigants are supposedly receiving the short end of the stick from the judges who are supposed to protect them and as of now it seemed it will remain like that. Is the Judiciary still for Justice? The Constitution of Botswana gives the judges the power to do their jobs diligently but also balances with ways to prevent the abuse of power. This ultimately ensures that independent courts and judges remain faithful to the rule of law. Independence of the Judiciary and that of judges protect the freedom of the ordinary Motswana so it is important to protect the people from a court that seems to be operating outside law or seems to be influenced in anyway. Without balance and checks judiciary can deny people the justice they need and in an instance where it is a criminal case, judges could throw people in jail recklessly.
The justice system needs a serious overhaul. When judges tear each other apart in the eyes of the public and even to the length of going to court they are sending a wrong message to the public. Judges and judicial officers should learn that they are the image of the system and should at least behave like one. We are not saying they cannot litigate as they also citizens at the end of the day but if it is something that can be resolved without causing a public spat then they can do. Again, when judges go after their colleagues it does not look good at all which also is the reason why it seems like that there is divisions in the judiciary. There has been talks of judges being grouped according to where they come from which is totally unacceptable for an institution like the judiciary that preaches fairness. Most doubts experienced by the public on the judiciary honestly is perpetuated by judges as they are constantly bickering even on issues that they can sit down and talk them out without involving the public. If the public spat between judges are often to dirty for a common citizen to fathom, what then about the judiciary.
This need immediate address as judiciary needs no division for it to function properly. Accountability in the Judiciary Judiciary is too precious to be marred with controversy that is why it is important to hold those who spear its image have to be held accountable. Judges or judicial officers need to go through vigorous venting to restore it to its glory days. Also we need judges that can stand their ground and not ne influenced easily. No judge has ever been impeached in Botswana and this should be a norm should any judge be found to have broken the law. Impeachment is a process in which a judge is removed from office after being found guilty of an impeachable offence. The impeachment process ensures judicial independence function at its maximum as it offers some security for citizens that if judges are acting in an illegal manner they can be removed from the bench to save the integrity of the system. It is part of an important process where the legislative branch has over the judicial system.