The bigger question to the Justices' contribution
Correspondent | Friday April 24, 2020 14:03
The Fund was established by Public Finance Management (COVID-19 Relief Fund) Order, 2020 to be administered by the Minister of Finance and Development Planning with a Committee on behalf of the Government of Botswana.
Government represented by Attorney General and public officers are frequent litigators before the courts and before these very judges who have contributed to the Fund.
Should any matter relating to the Fund, its administration or otherwise necessitate judicial intervention that matter would come before these judges. Firstly, there are many litigants before these judges, including companies who go through financial crisis or natural disasters but hardly have received contributions from the judges. What is the criterion for contribution to the ‘litigants’ by the judges?
Secondly, and most importantly, if they (judges) are to preside over the Fund matters or any such related matter, would they not be compromised and or conflicted. As contributors to the Fund, they certainly have a personal, direct and indirect interest in the Fund. It is that interest and however remote that is problematic, and raises these fundamental theoretical and philosophical questions.
To what extent should the judges be independent of the matters and parties before whom they are called to adjudicate? In this instance, the judges may well be independent of the Executive, but cannot be said to be independent of the matter before them (the Fund, to which they have personally and directly contributed).
MOKWALEDI MOKANOKI*
*Mokwaledi Mokanoki is a pseudonym of a local senior counsel.