The departure of a nonconformist

| Friday November 14, 2008 00:00

 

Justice Unity Dow's impending retirement from the Botswana High Court is not surprising given her unconventionality. Customarily, judges literally die on the bench. At 49, she is still a youngster in a profession where people retire in their 70s. Throughout her life, she appears to be a nonconformist. She was the first Motswana woman to be appointed a High Court judge. Years before that appointment, she was the only female law student when she studied at the then University of Botswana and Swaziland. She was a co-founder of the first all-female law firm in the country - Dow, Malakaila Attorneys. She could also be the only published novelist in the local law fraternity.

In fact, Dow has been everything in the judiciary, a public prosecutor, defence lawyer, human rights lawyer, litigant, researcher and a judge. 'I hope the only thing I have not been is a criminal. I have enjoyed all sides of the law.'

Why is she moving from the bench? 'I am a nomad at heart. One of my great, great grandmothers was a Mosarwa. May be that nomadic gene, the pack-up-and-go gene could be behind this,' she says.

Dow's career walk-abouts not withstanding, it was undoubtedly the Attorney General v. Unity Dow Civil Appeal No. 4/91 case that catapulted the young human rights lawyer to the national limelight in 1991. That landmark case is variously known as the Dow Case or the Citizenship Case. She was challenging the Citizenship Act that came into force on 4 May 1984 on the grounds that it discriminated against women.

The Act conferred citizenship on a child born in Botswana only if (a) the father was a citizen of Botswana; or (b) in the case of a person born out-of-wedlock, the mother was a citizen of Botswana. Dow who had three Botswana-born and bred children (Cheshe, Tumisang and Natasha) with her American husband, Peter Dow, did not like that law. She strongly felt the provision violated the Botswana Constitution. She launched a successful legal suit against the state at both the High Court and Court of Appeal.

Obviously, Botswana's customary law, together with its sometime attendant conservative streak, heavily influenced the drafting of that law. After Dow's success, Botswana's then predominately patriarchal society was rudely awakened to the women rights movement.

Veteran scribe, Mesh Moeti once described an 'eaves-dropping' incident, in which he preferred to call a 'ditsebe di ja moletlo' case, during his coverage of the House of Chiefs, the forerunner to Ntlo ya Dikgosi. Moeti overheard the maverick House chairman, Kgosi Seepapitso asking in an informal conversation: 'Na'are gatwe ene mogwe (Mr. Dow) yo wa rona o tshajwa eng, ga asa bidiwe a tla gore tlhalosetsa gore o tsaya leng mosadi a tsamaye ka ene kwa ga bone. Re tlaa tlhola re lapisiwa ke motho a re nyaletse?'

In reality what the good Kgosi was not aware of, was that the person to be feared in this instance was Unity Dow, not her husband. Seepapitso's remarks followed the High Court ruling in 1992, in which it agreed with Dow that the Act she was challenging violated women's right to liberty, the right not to be subjected to degrading treatment, and the right not to be discriminated against on the basis of sex. After years of gruelling legal combat, the Botswana Court of Appeal upheld the decision.

In her modestly furnished Courtroom No.2 office at the Lobatse High Court, Dow this week reflected that: 'Those five years (when the case was on) were the most difficult in my life. During those five years, I cried more than any time of my life.

'At the end of four years, I had cried with sadness and laughed with triumph. I had felt both victimised and validated. I had felt both isolated and embraced. I had lost old friends and gained new ones. I had met opposition where I had expected support and received support from unexpected quarters. I survived. I continue to survive,' she recalls in the foreword of her book - The Citizen Case published in 1995, comprising all motions, memoranda and decisions involved in the case.

Paradoxically, a few years after that landmark case, Dow was appointed a High Court judge in October 1997. She started her tenure in January 1998 though. At the time, there was disbelief in some quarters, with some alleging 'ba setse ba mo rekile' (meaning government has bought her over).

Last Monday, she could suppress laughter before explaining that in the judiciary, there is no 'the other side'. 'I never felt like I am joining the other side. It is joining objectivity. Judiciary is in the middle.

'What better evidence of the independence of the judiciary is there than in a citizen who can sue the state in a high profile case, and then join the judiciary in that particular country? In another country, that could never happen.'

Dow's 11 years on the bench were not without incidents. She presided over the highly charged Roy Sesana and Others v. the Government of Botswana case. The Central Kgalagadi Game Reserve (CKGR) case is regarded as Botswana's most expensive trial to date. The long-running trial involved court sittings variously at Gantsi, New Xade, Lobatse and site visits to the CKGR. She presided over the case with two other judges, Mphaphi Phumaphi and Maruping Dibotelo.

The Basarwa were challenging their removal from their homes in the CKGR by the government.

The historically-marginalised Basarwa mobilised support locally and internationally, and in the process attracted groups such as Survival International (SI). During the long drawn out trial, government reduced the Basarwa's case to a conflict with SI.

The case had moments of tension. The colourful head of the defence team, Sidney Pilane had bruising exchanges with the bench resulting in Dow flexing her judicial muscle and dispatching him to a Gaborone prison for contempt of court.

The CKGR had high-powered lawyers, eminent experts in various fields, media hype and all. As Dow acknowledged on Monday: 'It was basically a political case. It created a different atmosphere.'

On whether the case could have exerted pressure on the bench, Dow answered in the positive. 'The pressure was from the sheer size of the work involved. Like how many days we sat. In many respects, it was more than one case.

'But it all comes to hard facts. Before the court it is the law that applies. At the end of it all, it is the facts properly brought before me that count. As a friend always say: 'You are a slave to the Constitution. You are no slave to man',' she said.

Prefacing her December 13, 2006 ruling, Dow noted that: 'The original urgent application has, over the four years that the case has run, evolved into a full-scale trial, of a scale none of the parties, nor the two courts, for that matter, could have initially anticipated. It has turned out to be the most expensive and longest-running trial this country has ever dealt with. It has also attracted a lot of interest, as well as fair amount of bandwagon jumpers, both nationally and internationally, than perhaps any other case has ever done'.

Yet at the end of it all, the three-person bench reached varying conclusions on some points of law. Those unschooled in matters of law, particularly the media, had high praises for Dow's conclusions. The conclusion unmistakably touched a tender note with those concerned with issues of human rights.

It is even hoped that one of President Ian Khama's 4Ds - Dignity - could have been inspired by Dow's reasoning that the CKGR case was 'ultimately about a people demanding dignity and respect. It is a people saying in essence: 'Our way of life may be different, but it is worthy of respect. We may be changing and getting closer to your way of life, but give us a chance to decide what we want to carry with us into the future'.

It could as well be that Dow's unique human rights experience brought a human dimension to the traditionally conservative bench. She appears to concur pointing out that 'all judges come to the bench with some kind of experience and special backgrounds. Some are from the commercial sector, academia and Attorney-General's Chambers. All these are relevant and important experiences to the bench'.

Dow acknowledges that as someone from a human rights background, she constantly looks at the balance of power of the parties. 'I confront issues such as how to even the playing field without compromising justice.'

Dow appears to have brought a wealth of experience to the bench. After her legal training at the Edinburgh University, Dow joined the Attorney-General's Chambers as state counsel from 1983 until 1986, when she was engaged in criminal prosecution and later in the legal drafting and land division. She became a senior partner of Dow, Malakaila Attorneys (1986-1988) and at Dow, Lesetedi and Company (1988-1991). In both instances, she was engaged in general legal practice with particular focus on criminal law.

Between 1988 and 1991, she was an associate researcher with Women and Law in Southern Africa (WLSA), which she co-founded. She ultimately became WLSA co-coordinator between 1992 and 1994. Additionally, she also co-founded the Baobab Primary School in Gaborone. Dow also founded the Mochudi-based Metlhaetsile Women's Information Centre, which operated from 1990 until 1998, the last four years of which she was its director. The centre promoted human rights of women and children through the provision of legal aid, test case litigation, education, advocacy and lobbying services.

From there she was appointed to the bench, which she will be quitting in March. She does not go into discussing where she is going. 'I am not leaving the country. I'll be working in the area of human rights,' she said.

Other significant cases she handled during her illustrious legal career include The Child Maintenance Case (1996-97) and The Battered Women Syndrome Case (1997). The maintenance case of an impact on parliament amending the relevant law, while she describes the latter as 'an important case.'

Dow's important advances in law, however, did not escape the attention of the academia. For instance, The State University of New Jersey (USA) awarded her the converted William Brennan Human Rights Award in April 2003. Likewise, the Ohio-based Kenyon College (USA) awarded her honorary doctorate in May 2001. Her former school, Edinburgh University (UK) is posed to award another honorary doctorate degree, which she is to receive on 30 June 2008.

The latest high profile case she handled pitted government against Kgalagadi Breweries over the 30 percent tax hike on alcoholic beverages. Though KBL ultimately withdrew the case, Dow had initially stopped the effecting of the hike on October 1.

Her impending departure from the bench is generally described as a loss. The chairman of the Botswana Law Society, Duma Boko aptly summed up the mood last Friday when he told Mmegi that: 'It is a sad loss for a judge of her qualities to leave the bench. As I say, there are judges who don't want to hear certain arguments. She was not one of them. She was a judge who was willing to listen to arguments that to some conservative judges would seem to be outrageous. In the CKGR case, I think she brought it home in the plainest manner. And I was impressed with her plain speak about issues. She was also a rising star. She was in the process of growth as a legal thinker as a judge. I think she has the potential to be one of the outstanding judges to ever come out of this country. Of course we don't know why she is leaving. Maybe she has found bigger challenges that would help in her intellectual growth and if that is the case, we can only wish her well. But if her departure is the result of other considerations that may have to do with being pushed or undermined or frustrated, then it is a real shame'.