Kirby head-butts opposition, unions
Oarabile Mosikare | Friday January 13, 2017 16:11
In his address at the opening of the January 2017 CoA session, Kirby said during 2016, as in previous years, there has been some commentary in the press about “executive-mindedness” in the Judiciary, and particularly in CoA. “First, there is the separation of powers – much of the debate on this subject has arisen from comparisons with South Africa and the United States of America, whose constitutional dispensations are very different from our own. We may learn from them in some respects, but in others we prefer not to do so,” Kirby said.
In Botswana there is no real separation between the executive and the legislature, he said. The public service is led by the President and his Cabinet Ministers, who are all full members of Parliament. Together with the other members of the House, they conceive and pass all the laws, which the Judiciary implements and interprets in the performance of their mandate. “The true separation is between those two putative branches of government, who are effectively one, and the Judiciary which must remain independent and free of political influence, whichever party is in power.”
“The term ‘executive-minded’ is often used by parties, unions, or interest groups, who have been unsuccessful in litigating a case against the Government, to describe the Judge who wrote their judgement. On the other hand, successful litigants tend to describe their Judge or Judges as ‘progressive’. So the same Judge may, depending on the circumstances be described in either way, because every case is decided upon its own facts, and upon the same laws, which apply to conservatives and progressives alike. That we must accept, but dramatic departures from the norm, or groundbreaking interpretations of the law will always be the exception rather than the rule and, on balance, any Government loses more cases than it wins. This is so because, in managing such a large workforce and such a wide portfolio of duties, as every Government must, there is abundant scope for the inevitable errors and miscalculations that do occur,” Kirby said.
A private attorney Martin Dingake said the remarks by Kirby warrant a rejoinder on the question of separation of powers and the role of the CoA. Dingake said on July 19, 1996, the CoA in the case of Botswana Railways Organisation versus Setsogo held that the doctrine of separation of powers was not established in Botswana in its rigid form. The Constitution did not isolate the judicial arm from the other arms of Government. “In this regard they said the two highest judicial offices (the Chief Justice and President of the CoA) were appointed by the President alone. Similarly, the members of the Customary CoA and the Customary Court were also appointed by the President alone. It is also true that the concept of prerogative of mercy exercised by the President is a limitation on the role of the courts. Notwithstanding these limitations, the CoA nevertheless recognised the concept of separation of powers,” Dingake reasoned.
He said he was particularly left wondering why Kirby was keen to engage the press. “Why doesn't he engage the press on the matter of excessive powers of the President as a matter that has been before the Courts? One hopes that these remarks do not speak to an ever-increasing general desire by the courts to steady the political ship. For the longest time running in the history of our country, the National Assembly is but a Department of the Executive. Again, this is not a design of the Constitution as we are made to believe, but a result of a constitutional construction designed to weaken Parliament even further. In the past we have had members of the Executive straddling between the Judiciary and the Executive. Again why is the Judge President not dealing with these matters that undermine the rule of law?”
He also said that Kirby seems to privilege age over intellect adding that this is symptomatic of the ultra-conservatism of this society and his ideals. He associates age with progressiveness and implies only age represents stability. “Age may as well represent unfamiliarity and an uncultivated culture of reading. These are the type Kirby JP wants to stir the ship.”
A senior lawyer who did not want to be named said maybe he has not been reading media articles closely because he does not recall a concerted effort by litigants to label either Judges progressive or executive-minded. “I don't know what provoked this, but there are a number of cases before the CoA and the High Court in respect of the appointment of Judges and issues of conduct of judges at present. The JSC is a party in a number of them, and the JP is a member of the JSC. He would therefore not sit for their determination. Thus, his comments are likely to send a chilling message to the litigants he is referring to in his speech.” He asserted that the litigants, in these cases and others with far-reaching consequences for the executive arm of government might develop a feeling of hopelessness. “Any criticism of the Judiciary must be thoughtful and constructive and, in my view, any criticism by the Judiciary of litigants before it through public speeches such as the JP's one must be very sensitive and thoughtful,” he said.
For their part, BOFEPUSU deputy secretary general, Ketlhalefile Motshegwa said it was unfortunate for Kirby to have used the opening of the CoA forum to attack unions. “Such posturing will have the catastrophic consequences of denting the credibility and integrity of the Judiciary where by now Judges attack litigants in a forum of court.” He cautioned Kirby to be careful not to trigger and invite serious attack on the Judiciary on account of careless remarks. “We are studying the JP’s remarks at the opening of the CoA and the federation will accordingly respond without disappointment,” Motshegwa said.